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Choi, Charlotte --- "2018 Sir Samuel Griffith Essay Prize: Should Australia Hold a Plebiscite on the Question of Whether to Become a Republic?" [2018] SGSocUphAUCon 18; (2018) 30 Upholding the Australian Constitution 221

2018 SIR SAMUEL GRIFFITH ESSAY PRIZE

SHOULD AUSTRALIA HOLD A PLEBISCITE ON THE QUESTION OF WHETHER TO BECOME A REPUBLIC?

Charlotte Choi (Melbourne)

This essay argues that Australia should not hold a plebiscite on the question of the whether to become a republic for three reasons. Firstly, the republican call to remove Australia’s foreign ‘Head of State’ (commonly understood to be the Queen) is countered by a more nuanced understanding of the Governor-General’s constitutional powers. It is argued that these constitutional powers make the Governor-General, who is Australian, an effective ‘Head of State’ while the Queen (the sovereign) retains a titular or symbolic role. Secondly, the system of a constitutional monarchy has served Australia well and is more democratically legitimate and accountable than a republican alternative. Lastly, a plebiscite is not the best way to engage with the question of whether Australia should become a republic since this question concerns the Constitution itself, which a plebiscite (by definition) ignores. A plebiscite is a national vote which is not defined in the Constitution. Even if the republic question were meritorious, it should best be approached by referendum, which is a binding vote that concerns constitutional changes.

I The Australian Head of State Dispute

One of the main themes under which Australian republicans have united is the notion that only an Australian republic can provide an Australian ‘Head of State’. According to this line of thought, the Queen (as the putative Head of State) is not Australian and should therefore be replaced with an Australian citizen, manifested in the ‘mate for a Head of State’ campaign. However, this essay argues that the Governor-General represents the Queen (the sovereign) but acts effectively as a Head of State, and the Governor-General is ‘an Australian citizen and has been since 1965’, as stated under the ‘No’ case in the 1999 republic referendum. Although the Queen is regarded as the ‘titular’ or diplomatic Head of State of Australia, the Constitution stipulates that head of state duties are to be carried out by the Governor-General, not the monarch.

The case of R v Governor of South Australia [1907] HCA 31; (1907) 4 CLR 1497 was a decision that clarified this issue. The High Court is the authoritative source of judicial power in the Commonwealth and has final and binding authority on decisions regarding changes in the Constitution. This ruling related to whether the High Court could direct the Governor-General of Australia to exercise power in filling a Senate vacancy. The judging body (including Sir Samuel Griffith himself) unanimously held that the High Court could not direct the Governor-General in filling a Senate vacancy, describing the Governor of South Australia as the ‘Head of State’ and correspondingly, the Governor-General to be the ‘constitutional Head of the Commonwealth’. Although in contemporary discourse, the term ‘Head of State’ is often used ambiguously to refer to the Queen or Governor-General, head of state duties are assigned to the Governor-General (who is Australian) as the representative of the sovereign (the Queen). Hence, the 1907 High Court ruling has clarified the ‘Head of State’ dispute by assigning the Governor-General substantive head of state duties.

II The Merits of Constitutional Monarchy

The Head of State dispute links to the second argument against holding a plebiscite for whether Australia should become a republic. In a parliamentary system, the role of a Head of State is to mediate effectively between opposed parties in a neutral way. Monarchs are preferable to a republican Head of State (figurehead presidents elected by the parliament or people) because monarchs are not expected to interfere – they are not elected by the will of the people. Monarchs are above politics and any attempt to be otherwise (shown in Australia’s 1975 constitutional crisis, where Prime Minister Gough Whitlam was dismissed by the then Governor-General) is vehemently rejected by the people. Despite the popular election of figurehead presidents, such presidents are statistically more likely to allow government changes without new elections compared to monarchs.

Constitutional monarchies have a comparatively higher percentage of regular elections and a lower percentage of cabinet reshuffling and replacement. Conversely, directly elected presidents are positively correlated with political disenfranchisement and lower voter turnouts. In the past, Australians have had the opportunity to exit the commonwealth but have rejected it. This is because republican calls for independence and modernity are already respected under a government of constitutional monarchy. Constitutions are devised to limit the scope of the government’s powers and it is the case that most constitutional monarchies in existence today are stable, accountable and democratic. Hence, constitutional monarchy is the best system of government for Australia because it is more democratically legitimate than its republican alternative.

III Plebiscite vs Referendum

This leads to the third part of the argument, which is that a plebiscite creates conditions of constitutional instability. Contemporary republicans are unable to unanimously propose a specific form which an Australian republic should take, even if they agree on other things, such as that an Australian Head of State can only be fulfilled by a republic. For Australians to vote vaguely without details about the precise form in which the republic will take may cause individuals to cast a vote of no confidence. It would be politically irresponsible to propose such fundamental change without providing specific details or a guarantee that such change will take place. Even if the question of a republic was to be approached again through voting, it should be done so through a constitutional referendum.

Section 128 of the Australian Constitution clearly stipulates that any changes to the Constitution may only be passed by an absolute majority in both Houses of the Commonwealth Government, followed by a double majority (national majority by electors in states and territories and most electors in a majority of the states). Importantly, a referendum requires the Yes and No cases to detail the specifics of the proposed changes, involving extensive consultation with the public. To simply subsume the Australian Constitution under a figurehead president will raise the issue of democratic legitimacy as outlined above and create constitutional instability. Hence, any question of amending the constitutional framework of Australia’s government must be approached by a referendum, as it is the only method by which the Constitution can be changed. The constitutional validity of the plebiscite is untested and is certainly a large departure from what the founding fathers intended.

IV Conclusion

In conclusion, this essay has explored three distinct but interrelated issues that are central to whether Australia should hold a plebiscite or whether to become a republic. Firstly, the republican notion of the Queen as a foreign ‘head of state’ has been rejected by appealing to a more nuanced understanding of the Governor-General’s role, substantiated by the 1907 High Court ruling in R v Governor of South Australia. Secondly, the merits of constitutional monarchy are examined in relation to the republican alternative and the former was found to be more democratically accountable. Thirdly, the method of a plebiscite is rejected in favour of a referendum (if the question is to be put) as plebiscites may cause constitutional instability. Republicans will need to seek new arguments to overturn an existing, well-functioning system that respects Australia’s political and legal sovereignty.