When Aristotle wrote his treatise on politics, he explained in some detail his most practical regime, the one that was possible to implement in most nations. His practical regime was very close to what we would in these times call a republican constitution.
It was the English philosopher, John Locke, who showed the world why a republican government dedicated to the production of wealth was consistent with natural right. Locke was the force behind the English Bill of Rights and the United States constitution that established Britain and the US as republics. In 1899 Australia followed the United States federal constitution and, with some changes, British responsible government.
When someone as qualified as the French scholar Baron Montesquieu describes Britain in 1748 as a republic, it is time we were more sceptical of those who say they will change Australia into a republic. Our constitution is republican.
I was reminded of this late last year when Malcolm Turnbull, his friend, Sydney Morning Herald columnist Peter FitzSimons and Anthony Albanese — with little Richard Di Natale tagging along — decided to interrupt the nation’s pressing concern with bush fires and drought by airing their dream of an Australian republic – Australia, sans monarque.
As I read about Turnbull’s comments, I saw him, as in a dream, taking a crown from Archbishop Peter’s hands and placing it on his own head, a la Napoleon, with Beethoven’s Emperor Concerto thundering in the background. The republic faded before my eyes as Archbishop Peter turned to protest: Je ne suis pas Fredo.
FitzSimons is of Irish descent and has never forgiven the British for the Potato Famine. He has an Irish world view, which is explanation enough of his constitutionalism and his concern for potatoes. His alliance with Turnbull is symbiotic: Turnbull thinks and FitzSimons writes.
Unlike Turnbull, Fitz knows little about the law; and neither of them knows more than the name about what constitutes a republic. Were you to ask why the US constitution is like it is, I would direct you to read The Federalist. They were written by three of the authors of the US constitution, Alexander Hamilton, James Madison and John Jay. The Federalist would educate you about the essence of republican government, just as it educated Edmund Barton and the other founders of the Australian constitution.
Malcolm Turnbull talks about what he will do to make Australia a republic without demonstrating any knowledge of what we have and why we have it. The colonial peoples ratified that constitution with their votes. But anyone with even a slight familiarity with the process by which the Commonwealth constitution came into effect will know that that vote took place after an extensive education of public opinion about the pros and cons of a federal constitution like that of the United States. That education lasted over 40 years.
Even so, there were a few who wanted a constitution like the British, much like the constitution the High Court has given us; however, their proposals were defeated at the Convention.
Turnbull suggests that we vote to alter the constitution without changing its substance. I say, “Prove it! Set your whole plan out in writing and let us pick it down to its driest bones.” Turnbull says that the changes minimalist. But we know he wants to place in the hands of a president, reserve powers which he would include in the constitution. If these changes are minimalist, he has a different meaning for minimal than most Australians.
I ask those questions because these not so great constitutional architects, these inexperienced men and women, want to codify the powers that John Kerr’s exercised into his republican Constitution before he runs for the President. Powers a Governor-General could exercise without ministerial advice, whether they are prerogative, as Kerr thought or constitutional as Barwick thought, do not exist.
The Leader of the 1897 Constitutional Convention, Edmund Barton QC, answered that question expressly during the Convention without being contradicted by any of the senior lawyers (27 lawyers, 18 of whom were QCs) present:
As it is now, the, Governor cannot act without the advice of the Minister any more than the Queen, can, even if not specified to, be “in Council”.
It is laid down by every constitutional writer whose word is worth having that every prerogative of the Crown is now administered in trust for the people, which means, and is stated to mean, that it is administered by the advice of a responsible minister.
The minister is the people’s delegate in a republic like Australia and is responsible to the House of Representatives. Barton’s statement would have ended Kerr’s argument had it been cited. Transcript of the 1897-98 Constitutional Convention debates can be found here and should be read by every Australian lawyer before Turnbull’s silly quest for glory gets underway.
The founders of our constitution did not have to read Aristotle’s Politics, although I suspect that Barton who studied classics did. The founders were better informed of the substance of a republic than anyone in the movement by that name. Turnbull’s ideas would have been ridiculed for their naivety if not laughed out of court; for it would have been recognised as just another attempt to place powers in the hands of one man when those powers had already been wrested from the hands of monarchs and placed in an elected Parliament.
In that light, who in his right mind would want to replace a governor-general with a president and give him powers with which to take control of the powers of government? What a lunacy this scheming reached when we are asked to cut off our own noses just so we cannot smell hubris.
Dr David Long is a retired solicitor and economist.
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