Seven Golden Stars

Saunders, Cheryl — “The Concept of the Crown” [2015]

MelbULawRw 3; (2015) 38(3) Melbourne University Law Review 873

http://classic.austlii.edu.au/au/journals/MelbULawRw/2015/3.html

This comment below was written in reply to a comment on the Australian Republic Supporters Facebook page where I posted a link to the previous post:

https://www.facebook.com/groups/AusRepublic/permalink/5666111490118490/

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Thank you for your comment. I will answer some of your points here:

1. “It also does not consider the model that has been agreed by the Australian Republic Movement”

I have been a member of the ARM on and off over the last 2 decades. When I rejoined a year ago the ARM was still claiming to be something of an umbrella group representing the single issue of transitioning from a constitutional monarchy to a republic by replacing the Queen with an Australian as our head of state. I am happy to be part of such a group.

Early this year the executive at ARM released their Australia Choice Model. They did that unilaterally as a fiat accompli. The membership has not “agreed” to any model. The membership has not even been involved in the decision to promote one particular model and move away from being an umbrella group of sorts. I think the intention with the small group running the ARM was always to do exactly what they have done – but claiming the membership “agreed” to it is a far stretch.

Secondly, my approach is based on the current reality – how Australia as a constitutional monarchy actually works now – and posits a framework where we only replace the Queen/King with an elected Australian to serve fixed terms as our head of state and leave everything else as it is.

Even though the spin of the ARM is that they have a similar purpose, the ARM model starts with a mistaken understanding of our system and the results would significantly undermine the checks and balances we have built into our existing system – and that enabled our political and social stability over the last 120 years.

The approach to democratise the Australian Crown is very different to the ACM model proposed by ARM, and the model voted on in 1999. In a post this weekend I will contrast the three frameworks on a number of criteria – comparing reality, with a democratic Australian Crown, against the ACM model from ARM.

2. “the explicitly stated limits on power or the Constitutional changes already written by the ARM”

The explicitly stated limits on power in the ACM is an attempt to partially codify the Reserve Powers of the Governor-General assuming the new elected “President” will replace the Queen and Governor-General combined. There are so many assumptions in the ARM ACM that simply do not stand scrutiny.

Can reserve powers be codified – possibly – will it work – very unlikely. Reserve powers cannot really be codified because we cannot anticipate the all the possible circumstances where they would need to be used. This is a massive topic in itself.

Will the head of state for an Australian republic have reserve powers – in the ARM ACM model YES, in a democratic Australian Crown model – NO. In the model I am proposing we still have a Governor-General as the representative of the elected Head of State for the Commonwealth parliament. The Governor-General would still have reserve powers just as they do now. The elected Head of State would have no recourse to reserve powers – the Governor-General and State Governors keep the Head of State at arms length from any exercise of power – so there is no need for explicitly stated limits of power. The elected Head of State must conform with conventions limiting the Queen/King from exercising power or influencing Parliament. Everyone understands that. There is no wiggle room. There is a heavy weight of history that weighs down on an elected head of state in a democratic Crown to conform to these norms. By contrast – the more you try to codify reserve powers the more you will find Presidents, political parties, and their lawyers combing through the text looking for loopholes and exploiting any slipups as precedents.

The ARM ACM model was written by committee. It was designed to tick boxes but starts from an incomplete understanding of how our system works. That the ARM has written it and promotes it means nothing. It has no legitimacy within the membership of the movement – have the membership voted on it? It was foisted on the group in an authoritarian way by the executive as a fiat accompli. They opened up an online discussion forum where there were many objections about their model – but they stayed silent through most of it and ignored most objections. I think their strategy is simply to bluff it through and push on with media and publicity – hoping that a media company takes it up.

3. ‘And the most glaring error is the final paragraph. “I see this election process for an Australian republic as being completely aligned and in tune with the Voice to Parliament.” It isn’t and the two must be kept separate.’

I see the Voice to Parliament as a change in paradigm. It will be something that complements the usual political discussions and processes. It will be more about people talking about their experiences, how laws and government impact people’s lives in practice, and I think it will become a forum where topics, options and possibilities can be discussed openly and in public. It would still be up to the elected politicians to implement what policies they see fit, and how they see fit. I see the Voice to Parliament as a public forum that is part of civil society, and that encourages people to participate and tell their truth. It is like a feedback mechanism for society. In the past the newspapers served this role, but some of the largest networks have been hijacked by extremists.

A democratic Australian Crown where the election nomination and campaigning processes are designed around philanthropic activities – mimicking some of the best attributes of the monarchy (think of Diana campaigning against landmines and the many community groups, hospitals, charities, etc, the royal family supports) will be a way to engage many people in our society who feel powerless and help them speak their voice. In this way – as a new paradigm that will reinvigorate civil society – I think the Voice to Parliament and a democratic Australian Crown will work together in a way that complements traditional political discourse.

Here is a brief summary of the new model.

What we have now – this is the current reality

We have a constitutional monarchy for Australia.

The King / Queen of the UK is Australia’s Head of State as the monarch.

The rules for succession for the monarchy are the same or all the Commonwealth realms.

The King / Queen provides unity for all the divisible Crowns in Commonwealth realms through the person of the monarch. In the past the indivisible British Crown provided this unity.

By history and convention the monarch cannot interfere with responsible government and is effectively a ceremonial and powerless Head of State.

The monarch has a representative for every divisible Crown. The monarch’s representative only acts on advice of the responsible government, however, the monarch’s representative can have recourse to reserve powers if circumstances warrant it.

There are seven representatives for the monarch in Australia, one each for the seven divisible Crowns in Australia:

• • Governor-General for the Crown in right of the Commonwealth of Australia (starting from September 3, 1939).
  • Governor of NSW for the Crown in right of NSW (starting from March 3, 1986).
  • Governor of Victoria for Crown in right of Victoria (starting from March 3, 1986).
  • Governor of South Australia for the Crown in right of South Australia (starting from March 3, 1986).
  • Governor of Queensland for the Crown in right of Queensland (starting from March 3, 1986).
  • Governor of Western Australia for the Crown in right of Western Australia (starting from March 3, 1986).
  • Governor of Tasmania for the Crown in right of Tasmania (starting from March 3, 1986).

Vision for the future Australian republic with a democratic Crown

We could have a constitutional republic by replacing the monarch with an elected Australian who will serve as our Head of State for a fixed term.

We will have a constitutional republic for Australia.

An Australian is elected to be our Head of State for a fixed term in office.

The rules for succession for the Australian Head of State are defined in a new Section of the Commonwealth Constitution after successfully passing a referendum under Section 128.

There is a formal agreement among the Commonwealth and all six states to accept the elected Head of State as the one person who replaces the monarch as Australia’s Head of State for all the divisible Crowns in Australia. The person who is elected Head of State performs the essential function of unifying the Australian Federation through their person.

As the elected Head of State replaces the monarch, the Australian body politics would insist that the the elected Head of State abides by the Westminster conventions restraining the exercise of power by the monarch. The elected Head of State cannot interfere with responsible government and is effectively a ceremonial and powerless Head of State.

The elected Head of State has a representative for every divisible (democratic) Crown. A representative of the elected Head of State only acts on advice of their responsible government, however, the representative of the elected Head of State can have recourse to reserve powers if circumstances warrant it.

There are STILL seven representatives for the elected Head of State in Australia, one each for the seven divisible (democratic) Crowns in Australia (as listed above).

Everything else stays the same as in the constitutional monarchy.

Summary

This is a very brief outline for how Australia can transition from a constitutional monarchy to a constitutional republic.

This approach is very different to the approaches proposed by the Australian Republic Movement in 1999 and in 2022.

This approach is conservative. It will protect and enhance our liberal democracy and the Westminster system of Government as it has developed in Australia.

Some additional points that I think are important:

• The term of office for an elected Head of State is one year – starting from the 3rd of September.
• A suitable title for an elected Australian Head of State is “Australian of the Year”.
• There is a round robin of the states and Commonwealth so that each state and the Territories combined can elect the Australian Head of State on average once every seven years.
• The gender of the elected Head of state alternates between men and women from year to year.
• Since the term is so short, an elected Head of State would need to serve a 6 month apprenticeship starting on the 3rd of March before their term in office.
• Since the term is short, a retiring elected Head of State is expected to continue to serve for an additional 6 months after their term ends as a mentor to the incoming elected Head of State – to complete their service on the 3rd of March in the year following their term in office.
• An elected Head of State would serve the Australian public for a total of 2 years – starting and ending on the 3rd of March.
• The voting for an elected Head of State is limited to the state or Territories from where the person will be elected from. A voter would expect to vote once every 7 years for the Head of State.
• The States and Territories would take responsibility for the nomination process and campaigning.
• The focus of campaigning for candidates would be around philanthropic activities, raising awareness for community groups and causes, and raising funds for charities, etc. The elected Head of State cannot influence government policies, so they must not campaign on policies or divisive political issues. We would expect the conventions and norms limiting the monarch from expression political views to be applicable through the election campaigns.
• This process may favour people at the beginning of their careers. Many former elected Heads of State may decide to enter politics after their term in office is completed.
• I see this election process for an Australian republic as being completely aligned and in tune with the Voice to Parliament.

This is a blog about a model for an Australian republic.
I have been actively working on this new model since the referendum vote in 1999.
I will be regularly posting details about this new approach and why it would be the best model for Australia.
I can’t wait to hear what you think about it!