1995 - ZELMAN COWAN

The Right Hon. Sir Zelman Cowen, AK GCMG GCVO

Chairman's remarks in introducing Sir Zelman Cowen

Where to start in the illustrious career of Sir Zelman Cowen? The quantity and quality of his manifold contributions defy any easy categorisation or listing. Rhodes Scholar, Professor then Dean of Law, Vice-Chancellor, Governor-General, Provost. The Who's Who entry on Sir Zelman starkly records his offices and posts but omits important qualitative and evaluative questions. There is not only his great service, his integrity, his intellectual brilliance but his warmth and his wisdom.

I was a student at The University of Melbourne in the 1950s when we were all taken with the young brilliant and impressive Dean of Law.

I recall too, his willingness to speak at public gatherings-on important issues, and how in the 1950s he was one of these significant voices to us as undergraduates who foretold the importance of Australia's links with Asia.

It was with great regret that we saw him depart Melbourne, as Dean and Professor of Law. From then on his remarkable career meant he proved himself not only successful in all his undertakings but highly successful and usually in difficult circumstances. He was an outstanding VC of the University of Queensland when it was the most difficult period ever for Vice Chancellors at Australian universities. He became Governor-General at an extremely difficult time and we owe much to the restored status of this post to the remarkable service of Sir Zelman Cowen. He was asked to take on the prestigious post of Provost of Oriel College, Oxford, at a difficult period in the College's history. There are endless posts, distinctions and honours that could be listed-the young Rhodes Scholar, the Honorary degrees.

In this context Sir Zelman has had many Menzies associations-not only bound together in law and the University of Melbourne. Sir Zelman was associated with the Sir Robert Menzies Memorial Foundation, the Sir Robert Menzies Memorial Trust in the UK, and he gave the very first Menzies Lecture in Britain at the Sir Robert Menzies Centre for Australian Studies in 1988. His comments in that lecture on how Australian Sir Robert was-echoed much of what Heather said to us last year.

He later followed Sir Robert in being the Smuts lecturer at Cambridge as well as the Menzies Scholar in Residence at the University of Virginia. As Governor-General, together with the Prince of Wales, he was the first official mourner at Sir Robert's funeral.

The lecture was delivered on 28 November 1995.

The 1995 Sir Robert Menzies Lecture

The Right Honourable Sir Zelman Cowen
AK, GCMG, GCVO, QC, DCL

FURTHER REFLECTIONS ON AN AUSTRALIAN REPUBLIC

I am honoured by the invitation to deliver the Sir Robert Menzies Lecture for 1995. The Lecture was established in 1978, before Sir Robert's death, and with his approval, and the first lecturer was, appropriately, the Prime Minister, Mr Malcolm Fraser.

I did not have a close association with Sir Robert, though I met him on many occasions and, of course, often listened to him.

I was sworn in as Governor-General early in December 1977, and on December 20 I read a report of his 83rd birthday. On impulse, I telephoned to offer good wishes on this considerable attainment. He responded graciously and I hope that he was pleased. It was the last occasion on which our lives touched: he died in May 1978, and with the Prince of Wales, I was a principal official mourner when we farewelled him at a great service in Scots Church, Melbourne.

In 1983, I followed in his footsteps as Scholar in Residence in the University of Virginia to which he had gone following his retirement in 1966, and where he was the first scholar in residence. He is well and warmly remembered there.

In later years, I became a Director of the Sir Robert Menzies Memorial Foundation in Australia, and in England a Trustee of the Sir Robert Menzies Memorial Trust. And I still hold these good offices which, I believe, honour the memory of this great Australian significantly and practically. Then in the Australian bicentennial year, 1988, I was present in London at a meeting in the Australian Studies Centre, of which I was foundation Chairman, at which it was renamed the 'Sir Robert Menzies Australian Studies Centre'. I said on that occasion that we believed that it was fitting that the Centre should bear the name of this great Australian who was unswerving in his devotion to the support of the British-Australian relationship, always with due regard for Australian interests, as he saw them. At that time, an annual Sir Robert Menzies Lecture was inaugurated under the auspices of the Centre, and I had the honour of presenting the first of these. I spoke then on the theme of Menzies Remembered, and in it I discussed his views, perforce generally, on a variety of matters, as revealed in his writings, his speech and actions. This year, 1995, the lecture was given by Dr Neal Blewett, the Australian High Commissioner in London and a scholar, Commonwealth parliamentarian and Minister, on the Politics of the Republic, and I shall refer to it later.

Dame Pattie Menzies was the patron of the Australian Menzies Lecture Trust and was a regular attender at the annual lectures, having missed only one. She had planned to come on this occasion, but, as you know, she died in August at the age of 96. I was present at the services which honoured her memory in Melbourne and Canberra, and both services were made altogether special by spoken tributes by Heather Henderson, her daughter. She told, gently and beautifully, of the life and character of a remarkable woman, and when at the end, emotion affected utterance, it was a moving experience in which we all shared. Maybe Dame Pattie would not have welcomed a discussion of republican issues, and fixed her departure accordingly. Be it so, I offer sympathy to those of the family who are here today - though at such an age, and after such a life, perhaps the more fitting thing is to celebrate that life - as I remember Fred McKay who was there and a grand participant - saying on another such occasion.

I should like to offer a word of explanation of the title of this lecture: Further Reflections on an Australian Republic. In October 1994, under the auspices of the Victoria University of Technology, I gave a lecture which I entitled Reflections on an Australian Republic. I noted that, to that time, the Prime Minister had actively promoted the cause of an Australian republic, and had indicated that his view was that the constitutional change proposed should be minimal. This meant that in becoming a republic we should not embark on far reaching change in our constitutional arrangements such, for example, as might be involved in remaking our policy on the model of the United States. Mr Keating appointed a committee under the chairmanship of Malcolm Turnbull which, the republic being a given and not for debate, canvassed various options. The committee's report recognised that no effective minimal solution was easy, and it is apparent that there are substantial and as yet divisive issues involved in the achievement of a republican Australia. At the same time, it was clear that it made no sense for any proposal to be submitted to referendum without full public disclosure and discussion of the whole package, however limited, however broad in scope the package might be. Only by doing so was it possible for the electorate to see what was on offer and to make an informed judgement. Further, in this case, as indeed in all proposals for constitutional change, the onus is surely on those who propound the argument for change to demonstrate the case in principle and in detail. For many pragmatic Australians, the present system works pretty well, notwithstanding that it operates with an absentee Head of State, shared as to the person with the United Kingdom and a number of Commonwealth countries, and provides for a Governor-General who performs Head of State functions without that status or title. The Turnbull Committee provided a substantial report, and was followed by a long period of review after which the Prime Minister, in Parliament, set out on June 7, 1995, the government's preferred proposal for the establishment of an Australian republic. This was followed by a speech at a dinner of the Australian Republican Movement on November 3 in which the Prime Minister reaffirmed his June model, but this time sharply attacked the Opposition for its stance on the issue of the republic.

A consideration of these proposals provides the basis for these further reflections on an Australian republic.

Before I come to consider them, let me spend a little time considering Sir Robert Menzies' views on the monarchy and associated matters. While later Prime Ministers have been firm in their support for the monarchy, Menzies is fairly described as the last of them to be intellectually and emotionally committed to it. In his Smuts lecture in Cambridge in 1960, he spoke of the "swift impulse in the loyal heart when the Queen passes by", and Australians of mature age will remember an even more personal address to the young Queen when she came here on her coronation visit. In his book Afternoon Light, he expressed a view of the Crown in terms that the

whole essence is that the Crown represents the history of centuries; there is no new invention but something about which our history has long revolved. It gives us a focal point, a centre of gravity without which no nation can survive.

This Burkean utterance had powerful meaning for Menzies, though by no means for all members and leaders of an expanding Commonwealth.

Further, he believed in a common, indivisible Crown. So when he became Prime Minister for the first time in April 1939, he addressed the nation in terms that "the peace of Great Britain is precious to us, because her peace is ours; if she is at war, we are at war." This was the essence of a common, indivisible monarchy as he saw it, and it was confirmed in these terms by his announcement that Australia was at war on September 3, 1939, which was said to follow inexorably from the fact that Great Britain was at war. Years later, in a lecture in 1967, he asked the question, "How could the monarch be at peace and at war with the same nation at the same time?" As a practical matter, it did not seem to raise a central or even a difficult question for Canada, South Africa and for Ireland, all of them then members of the Commonwealth, when Great Britain declared war on Germany on September 3, 1939. Both Canada and South Africa went to war at later dates, by separate and specific decisions of their own parliaments, while Ireland remained neutral throughout.

Menzies, by this time in Opposition, in 1942, in the debate in the Parliament on the adoption of the great charter of Commonwealth independence, the Imperial Statute of Westminster, by Australia restated this view:

I have always believed that the autonomy of the Dominions had to be reconciled entirely with the complete indivisibility of the Crown. I do not understand how the Crown can be the nexus between the Dominions of the British Empire unless it is one Crown. I do not understand the theory which has great currency in some Dominions that the King of Australia is advised by his Australian Ministers and that the King of the United Kingdom is advised by his United Kingdom Ministers and that in each of these capacities he is distinct.

Menzies was not yet back in office when India posed for the Conference of Commonwealth Prime Ministers in 1949 the question whether it might maintain membership of the Commonwealth as a republic. That question tested what most, anyway, at the time would have regarded as settled constitutional doctrine, that the single binding constitutional link of Commonwealth was the acceptance of common allegiance to the Crown. The Prime Ministers, faced with a great issue, responded practically: their answer was that Indian membership of the Commonwealth might be maintained by her as a republic, while she in turn acknowledged the monarch, George VI, as Head of the Commonwealth. This was plainly understood by Nehru as a symbolic formula with no constitutional substance, a view which I believe to be right, though there is some uncertainty. To Nehru, this comprehensive solution for India brought a "touch of healing", and while the decision and the formula were provided specifically to deal with the case of India, the implications and application were, and proved to be, much wider.

For Menzies and for Smuts of South Africa, both out of office, the settlement was seen as profoundly unhistorical, substituting a relationship which was "functional and certainly external" for one which was "organic and internal." One may sense what these words were intended to mean. Menzies, who was returned to office in that year, decided to go along with the new Commonwealth in terms of the 1949 settlement, and what was agreed for India and for King George VI was in due time accepted for Queen Elizabeth. What emerged in the Commonwealth was a majority of republican member states, a small group of countries with their own, distinct monarchs, and a substantial minority, Australia, Canada, and New Zealand among them, who gave allegiance to Queen Elizabeth. An outcome of this development was, with Menzies' acquiescence, an agreement at the time of the coronation of Queen Elizabeth in 1953 that separate national titles were available to describe the relationship between Crown and nation in individual monarchical states. Whether in his heart, Menzies really accepted it, in practice he resiled from the doctrine of indivisibility which he had ardently proclaimed earlier.

Sir Garfield Barwick, in his lecture in this series in 1982, The Monarchy in an Independent Australia, dealt with this issue. He said that with the coming of independence to individual Commonwealth countries, the doctrine of the indivisibility of the Crown fell into ruin, and Menzies himself as a long term Prime Minister came to act on the footing of divisibility, exercising the right of direct access to the Queen as Queen of Australia, and advising her directly on Commonwealth matters. All of this, Barwick points out, came about without the change of a single syllable of the written constitution - the practical changes, he says, have occurred in accommodating the facts of history. So he formulates the modern position:

The monarch in Australia can properly be regarded as an Australian institution separate and distinct from the monarchy in Great Britain, albeit that the one person exercises a monarchy separately attaching to each territory and that the succession to the throne is not directly determined by Australian law.

This was discussed by the panels who commented on the issues raised by the Princess of Wales' television appearance last week, though not very fully. Certainly it has worked out in a way which clearly distinguishes the character of the monarchy in the United Kingdom from that of other Commonwealth countries which retain the monarch (the same person) as integral parts of their constitutional systems. Now this was not always believed to be so. In a very recent book, The Monarchy and the Constitution by an Oxford scholar, Vernon Bogdanor, the author points to the fact that when the evolution of the monarchy in the Commonwealth, with the same person as monarch in each country, was recognised by legislation providing for separate titles, some United Kingdom authorities contemplated that the Queen might or would be really shared among her Kingdoms, so that to accommodate what would have to be substantial absences from the United Kingdom, a Governor-General for the United Kingdom might be seen as necessary to discharge functions during such absences on business, but not United Kingdom royal duty, elsewhere. This never proved to be a reality. The United Kingdom was always seen as the Queen's principal realm, in which she discharged her functions and performed her role in person. In the United Kingdom, that is to say, she is in person a working part of the constitutional system in a way which is quite different from other parts and realms. The range of her responsibilities and commitments is such, and it may be increasingly the case, if republican status particularly continues to be a live issue, that she is and will be, outside the United Kingdom, very largely an absentee. Further, unless she is travelling abroad specifically on the business of a realm other than the United Kingdom (or, it might be on Commonwealth business as its head) she is assumed to be doing so as Queen of the United Kingdom.

This development was seen by Sir Garfield Barwick as capable of accommodation without difficulty, provided that due restraint was exercised by the governments of her various realms. The fact, however, that the Queen is physically one person with multiple titles can give rise to difficulties. A fairly frequently cited example is the Queen's visit to Jordan in 1984, when she made statements which accorded with British, but not with Australian policy, and questions were raised in Australia about the propriety of her doing so. It is not difficult to see how divergences in policy as between Commonwealth countries might lead to very sharp differences between Commonwealth countries, if the Queen were sought to be involved on one side. The test of the capacity in which she acts is not simply resolved by physical presence: she is not simply Queen of Australia when going to or in Australia; she is Queen of Australia when she acts in respect of Australian concerns. Indeed we know that Commonwealth countries have been at war with one another; though it has not as yet occurred between countries which retain the monarch - and really could not. A divisible monarchy could not stand this. All in all, it is possible to see great strains upon the system and what has always to be remembered is the primacy and distinctiveness of the Queen's position as Queen of the United Kingdom.

Some curious situations may arise. One involves the constitutional crisis in Australia of November 1975, which we have relived hopefully for the last time in a mountain of words and images in the recent twenty year anniversary. In his autobiography, Matters for Judgement, the Governor-General, Sir John Kerr, writes:

I did not tell the Queen in advance that I intended to exercise these powers on November 11. I did not ask her approval. The decisions I took were without the Queen's advance knowledge. The reason for this was that I believed that if dismissal action was to be taken that it could be taken only by me and that it must be done on my sole responsibility. My view was that to inform Her Majesty in advance of what I intended to do and when, would be to risk involving her in an Australian political and constitutional crisis in relation to which she had no legal powers and I must not take such a risk.

When the speaker of the dismissed parliament sought royal intervention on the following day, the response from royal sources was to say that "the Queen has no part in decisions which the Governor-General must take in accordance with the constitution. … It would not be proper for her to intervene in person on matters which are so clearly placed within the jurisdiction of the Governor-General by the Constitution Act."

I do not question the wisdom or propriety of Sir John Kerr in acting in this way - the power to dismiss was his, expressly so stated in the Constitution. Yet in time of great crisis, the monarch, centrally enshrined in the constitutional system and possessed of Bagehot's great rights to be consulted, to encourage and to warn, was seen by the Governor-General and the royal advisers as an irrelevance without any constitutional power to be protected against involvement, and simply to be the first to be informed, after the deed.

There is an interesting modern case, which arose in 1983, involving the small Eastern Caribbean State of Grenada, of which the Queen was Head of State. In response to political developments which occurred in Grenada, United States troops entered the country. This was without the prior knowledge or approval of the United Kingdom government, which in fact disapproved of it. The fact was that the Governor-General of Grenada, acting in consultation with the Organisation of Eastern Caribbean States, made a request for American military intervention. In face of the plainly expressed displeasure of Mrs Thatcher, then Prime Minister of the United Kingdom, Sir Paul Scoon, the Governor-General, responded to the questions of journalists explaining that Grenada was an independent state within the Commonwealth in no way subject to the authority of the United Kingdom. Size and power did not affect the issue. Further, the Governor-General stated that there was no prior communication with the Queen on the request for American military aid and intervention. Indeed, had the Governor-General informed the Queen in advance of that, she may well have been placed in a position of serious embarrassment. As Queen of Grenada, she would know what was happening; as Queen of England, she could not communicate with her British Prime Minister on a matter of concern to her. It has a Mikado like aspect, and illustrates what may emerge in practice from the fact of the monarch's single human person and multiple legal capacities.

Under existing constitutional arrangements, the Queen is represented in Australia at Commonwealth level by a Governor-General. That office has evolved; we have moved without need for formal constitutional amendment from a situation in which the Governor-General was a United Kingdom resident who came from the United Kingdom and returned at the end of his term. He was appointed on the sole advice of the United Kingdom government, at first certainly without any reference to the Australian Commonwealth government. Though some consultation may have later taken place, it was not until 1930 that a decisive change took place, when it was settled that the source of advice on the appointment was the Australian government. Earlier in 1926 at the Imperial Conference, it was agreed that the Governor-General stood in the same relationship to his dominion government as did the King in relation to the United Kingdom government. The practical consequence was that thereafter the Governor-General, in addition to his additional role as head of the Australian executive government, no longer acted as a representative and custodian of British and Imperial interests; this became the responsibility of a British diplomatic agent who came to be styled the High Commissioner for the United Kingdom.

The Imperial Conference of 1926, which was a milestone in the redefinition of the relationships between the United Kingdom and the Dominions, was held at a time when Menzies was not yet in politics - he was first elected to the Victorian Legislative Council in 1928. He had no great regard for the process of defining the Commonwealth relationship which took place during the interwar years, and culminated in the enactment of the Statute of Westminster 1931. As late as the early years of the Second World War he spoke of the attempt at defining this relationship as open to "grave criticism" as a misguided attempt to reduce to written terms what was a "matter of the spirit and not of the letter".

On the major development in 1930, I can trace no comment by Menzies. This was the recommendation of Sir Isaac Isaacs, at the time Chief Justice of the High Court of Australia, to King George V, for appointment as Governor-General. Isaacs was Australian born and resident; he had had a great career in the law and in politics in Australia. The nomination was resisted on the ground that the Australian government had no authority to tender advice on such appointments and specifically on the ground of the undesirability of appointing a local man. J.G. Latham, then Leader of the Opposition, attacked the recommendation as revealing a "strident and narrow nationalism" as wanting in "lack of enthusiasm" for the British Empire. It was only after a strong resistance that the King, George V, accepted the advice and made the appointment after an Imperial Conference of 1930 had ruled that the appropriate source of advice on appointment was the Commonwealth government concerned.

It is likely, I think, that Menzies would have taken a position not dissimilar from that of Latham; certainly I think that he would have found the pressure on the King abhorrent. When a recommendation of a second Australian, Mr W.J. McKell, was made in 1947, Menzies was strongly opposed. At the time McKell was a Labor Premier of New South Wales, and was appointed on the advice of Chifley, and in Parliament Menzies attacked the appointment as the latest and worst of a series of public appointments which displayed government jobbery and in this case was a blow to the prestige of the Office. At the same time Menzies, unlike a number of his colleagues opposed to the appointment, attended the swearing in of McKell and behaved courteously to him. His latter day relations with McKell were good and cordial.

As Prime Minister, Menzies' appointments up to 1965 were all from the United Kingdom: Slim, Dunrossil and De L'Isle, and he wrote an interesting account of the way in which the appointment of Slim was made in Afternoon Light. That certainly shows no disposition to prefer an Australian. In 1965, Menzies tendered his last advice on the appointment of Lord Casey. Casey was a special case, and even here it may be that he canvassed a wider field including non-Australians.

Casey was an active and distinguished Governor-General and his biographer Dr W.J. Hudson says of him that "he changed forever some assumptions about the office. For one thing it was unlikely that it would ever again be held by an Englishman ... (he) made it easier for his successors to be Australians even on the nomination of non-Labor governments." Since 1969, when Casey retired, five Australians have occupied the Office and a sixth will shortly succeed. While in that time - it was certainly raised during my years in the Office - it was suggested that the Prince of Wales might spend some years as Governor-General, I believe that was a not well thought out notion, and one which does not sit at all well with the principle I set down in an earlier discussion of the matter.

If Australia, as an indisputably independent nation, retains the monarch as Head of State, it has to be accepted that she will necessarily be, for the most part, an absentee. Because of this, it is altogether appropriate that a Governor-General who performs virtually all Head of State functions should be a person as fully attuned as possible to the institutions, character and style of Australia, and this means that he should be an Australian citizen and resident ... the contemporary institution of the Australian monarchy depends upon the close identification of the working de facto Head of State with the nation he serves as Governor-General. I say that in our existing structure no-one should be eligible to be Governor-General other than an Australian citizen and resident.

In support I cite the recommendation of the Australian Constitutional Convention 1971-1985 and the successor Constitutional Commission 1985-1988.

I turn now to the Australian Government's case and "preferred" proposal for a republic. It is framed in terms of preference, as the proposal which the government regards as apt to Australian needs and purposes, but not necessarily fixed. What is fixed, however, is the central pillar of the case, which has been stated forcefully and eloquently. In its articulation, it compares with Menzies' passionately stated belief in the monarchy:

the creation of an Australian republic can actually deliver a heightened sense of unity, it can enliven our national spirit, and in our minds and those of our neighbours, answer beyond doubt the perennial question of Australian identity, the question of who we are and what we stand for. The answer is not what having a foreign Head of State suggests. We are not a political or cultural appendage of another country's past. We are simply and unambiguously Australian.

This echoes themes developed by writers like Geoffrey Dutton and Thomas Keneally. Very recently Robert Hughes put it that,

there should be no doubt in anyone's mind who our Head of State is. That person should be a citizen of Australia, living in Australia, chosen for the task by other Australians directly representing all Australians and only Australians no matter what their party, creed, gender or race.

As matters stand, the monarch who is Head of State is for the most part an absentee. As Vernon Bogdanor points out she or he is bound to remain primarily the King or Queen of the United Kingdom. Residing mainly in Britain, it is only there that he or she can perform the constitutional and ceremonial duties in person. He or she is there a working part of the constitution in a way that he or she cannot possibly be in his or her other realms of which Australia is one. The necessary linking to and identification with Britain may present problems. As two nations with separate and at times divergent policies, it may be a constraining and uncomfortable yoking and this is not made any more comfortable or acceptable by any formula which states that the one person is Head of State by separate titles.

It is important to say, further, that a decision to separate and to provide for an Australian Head of State need not in any way involve a rejection of British inheritances, values and institutions which lie deep in our history. Earlier utterances by the Prime Minister may have suggested the contrary, but latterly he has been quick to affirm the enduring values of the British connection. This is expressed in a variety of ways in our language, literature, in our traditions of public service, in the rule of law, by way of example. These are rightly to be cherished. Nor does it necessarily involve any separation from the Commonwealth of Nations. This, expressly, is not intended.

There are further points. While the United Kingdom has no difficulty in making clear that the Queen, permanently resident in the United Kingdom is Head of State, we run into difficulties in establishing the status of our Governor-General. In a recent speech, Robert Hughes gave an account of the difficulties experienced in establishing the status of the Governor-General for security purposes when he visited New York for the fiftieth anniversary of the creation of the United Nations. Bogdanor lists other examples of confusion about the status of the Governor-General in travels abroad in his official capacity, and of inappropriate references by bemused foreign officials to United Kingdom officers for clarification. No doubt, these are irritations, and are not in themselves powerful enough arguments for such a significant change, and the central argument for change is that already stated. It is that an Australian citizen and resident, appropriately chosen, should be our Head of State - that this will ensure that his or her primary and full time commitment is as Head of State of this nation. Such I believe is the way to respond to Michael Kirby's question - "given that we have in Australia in all truth a crowned republic ... [why] inflict upon our country the wound of a divisive debate about a republican form of government?" At an earlier stage - and what I have said and written bears evidence - I would have agreed with this. It seems to me, however, that as the debate has developed, what Dr Blewett in his London Menzies lecture has described as a sea change, has taken place. Support for an Australian republic has gathered strength as never before in our history.

For me, in making a judgment on the issue, it has always been necessary to see the "detail" of the proposal, that is to say the content of the package proposed. That came in the Prime Minister's parliamentary statement on June 7 of this year. These proposals adopt the most minimal of the options for change. They necessarily concern themselves with the designation of an Australian Head of State, to be styled the President of the Commonwealth of Australia. They deal with the powers of the President, and also with the role and situation of the Australian States in the context of an Australian republic at national level.

Let me deal with them in reverse order. So far as the States are concerned, the proposal is to do nothing - that is to say to leave to individual States the responsibility for deciding their own course, whether monarchical or republican, and to decide this in accordance with their own constitutional processes. Certainly, it has to be said that the prospect of state monarchies within a wider Commonwealth republic does not look very attractive. Dr Blewett goes further in offering the comment that "the notion of a couple of provincial monarchies with a republican Commonwealth seems so risible that it is unlikely to have little appeal to either loyalists or to Buckingham Palace". This makes a point not often referred to in the debate: that the monarch's future in Australia is not simply in the hands of Australia whether at Commonwealth or at State level. There may conceivably come a point when the monarch says "enough". In light of history, and of the strong support of Australians who support the maintenance of existing institutions, any such decision would not be taken lightly. If however, a national referendum were to support a republic at Commonwealth level, it might become a more real issue. As I have said earlier, it is not easy to contemplate a republican status for the Commonwealth while somehow preserving the possibility of the retention of the monarchy in a single state or states.

In addressing the issue of the powers of an Australian president, the statement proposes that no definition or codification should be made. What is proposed is that the President should exercise the powers exercisable under the present constitution by the Governor-General in light of the conventions and customs which have evolved. A stated objection to a formulation of the powers, and notably the reserve or discretionary powers, is said to be that expressly enumerated, they "could well become justiciable - that is capable of being adjudicated by the High Court of Australia and required to be adjudicated by that Court". This abandons any attempt to resolve by prescription the issues which gave rise to great controversy in November 1975. As to this, the establishment of a republic would effect one important change in any event: the President, unlike the Governor-General, has a fixed term, with a very difficult procedure for removal. At issue, in the exercise of the power of dismissal by Sir John Kerr, was the charge that the Governor-General had "ambushed" the Prime Minister by failing to warn him of the consequences of persistence in the course of action he was pursuing. It was said that the Governor-General acted in this way because he would by disclosure have exposed himself to the risk of dismissal on the advice of the Prime Minister given to the Queen with the intention of aborting dismissal action. A President with a fixed term would be in a more secure position. If the circumstances of November 1975 were to arise in a republic, there would not be the same reason for a President to expose himself of the charges of ambush or stealth in his dealing with his Prime Minister. More generally, security of tenure places the President in a position of significant strength in his dealing with his Prime Minister.

This, however, does not dispose of the central problems which would arise in a re-run of the events of November 1975. There the issue arose out of a failure on the part of the Senate to pass the provisions for supply which were voted by a clear majority in the House of Representatives, and which were held up by a Senate with sufficient party strength to do that. The constitutional provisions for the resolution of conflict between House and Senate were not apposite to the resolution of the issue of supply. Twenty years have passed without any serious attempt to resolve the problem of such conflict. There have been proposals, but government has initiated no action to resolve the matter by constitutional amendment, and it is this issue, which lay at the heart of the constitutional crisis and which must be resolved. If it were resolved, the central issue of the exercise of reserve power by a Governor-General or President is resolved. To be sure, it is not the only case in which issues relating to the exercise of reserve powers will arise, but it is a central one.

In his statement of June 7, the Prime Minister takes account of this problem which I have addressed on earlier occasions. He says that, while conscious of the problem, it raises "a very different issue from that of establishing an Australian Head of State. It is an issue that deserves to be addressed, but it doesn't need to be addressed at the same time." In general, I would agree that a constitutional referendum proposal for a republic should be as closely drawn as possible - the greater the width, the greater the risk of contamination and loss of the whole. This one, however, I see, by reference to history, as central to the issue, and I would bring it forward at this time.

Certainly the role and selection of a President are central to the proposal of an Australian republic. It may be suggested, as some have done, that it is possible to do without such a role, but I simply do not agree. I see a Head of State as providing a national focus of unity for the nation, as it does and has done elsewhere in the world. In Australia, a President would replace both monarch and Governor-General as Head of State. He would discharge his functions within the framework of a continuing Westminster - Washminster form of government.

If we proceed, it is without doubt necessary to write new constitutional procedures for the identification of a President. The existing procedures for appointment of a Governor-General, which by evolution have given the nominating power to the Prime Minister, would not be acceptable and are not argued for in the government statement. Some form of election is seen as the appropriate means of identification, and the proposal is that he or she should be elected by a two-thirds vote of a joint sitting of the two Houses of the Commonwealth parliament, the vote being initiated by a single nomination from the Prime Minister and Cabinet. The President would be elected for a single term of five years, and would be subject to removal within that time only by a vote of the same character as put him in place.

I strongly support this proposal. The required majority makes it practically impossible for any government to impose a candidate on the electoral body; it would require the agreement and cooperation of all major parties. It affords the likelihood of identifying as Head of State "an eminent Australian, a widely respected figure who can represent the nation as a whole", to quote the words of the government statement. As one who has had the privilege of serving as Governor-General, and who sees as of central importance the capacity to communicate "by representing the nation to itself", I see the proposed procedures as apt to identify such a candidate who would transcend faction or party.

If the President were to be directly elected by the people, it would, it appears to me, be virtually certain that only a major party backed candidate would have a prospect of election; indeed only the parties would have the capacity and resource to mount an election which would very likely yield a winner who would be one of their own. Further, a non party candidate would neither have the resource or wish to engage in a contested election procedure. That would exclude from possibility of appointment one such as Sir Ninian Stephen or me, or the incoming Governor-General.

From another standpoint, the election of a President would, if direct popular election were chosen as the mode of identification, raise potential problems for the structure and working of government. Such a person would be the only person within the political system directly elected by the people as a whole; he would in the Prime Minister's words "inherit a basis of power that would prove fundamentally at odds with our Westminster system of government". Direct election emphasises contest and division; in a fairly closely divided vote, it would not be easy to see the winner as a symbol of the unity of the nation.

While most commentators see the argument in support of a mode of election by the two thirds vote of parliament as the desirable course, the polls have consistently shown strong popular support for direct election of the President. If this is seen as an expression of the popular will to take the President out of the hands and control of the politicians, it seems to me to defeat that purpose and by its very nature to assure that the outcome will be political. My own energies have been devoted to arguing the case against direct election of a President, and for the reasons I have set out.

I am encouraged by the view of Dr Blewett in his Menzies lecture that there is a trend of opinion away from direct election and if it is so I am encouraged.

I have to say that if what is finally proposed is a formula providing for direct election, I would oppose it - that is to say that I would prefer to stay where we are. This reinforces the point that I have made insistently throughout this debate: that the issue of an Australian republic is not an abstract one; it can only be sensibly judged in the context of the whole package.

In general, I applaud the proposals announced on June 7 and restated in the Prime Minister's speech on November 3, and so I am somewhat disappointed to read Mr Malcolm Fraser's judgment on it as "superficial and inadequate". Generally, I see it as well argued and inadequate only in the sense that I wish the referendum on the republic to provide for the best assurance that the November 1975 crisis will not reappear.

I am concerned that Mr Howard, in announcing the Coalition's approach, would place the republic issue within a significantly wider framework of constitutional reform in which the republic would be but an element. We have had experience of constitutional conventions, and we know, through historical experience, of the fate of proposals for constitutional change recommended by them. It is important too for people to understand that constitutional conventions held a century ago to frame the Australian Constitution for the first time, were very different bodies from those which have been set up in more recent times.

I think that the Prime Minister has done much to focus the nation's attention on the great issues involved in the establishment of an Australian republic. I think that he has not advanced the cause when he has addressed the issues in a partisan way through attack on his opponents. I was much encouraged by the tenor of the statement of June 7; and then disappointed by the trend in his November speech, given to be sure to the converted, when a good statement moved into an attack on the Opposition as perceived opponents of the cause. I am sure that this is an issue which, before we go to referendum, requires that we shall have to establish a substantial measure of consensus.

When I spoke rather more than a year ago, I said that Australians might well wait until there is a wide political consensus on this change before taking the vote which must be taken. The evidence of our history is that success in the achievement of constitutional change through referendum does not come easily, and particularly in such a proposal as this one, it will be well if our political leaders shape their strategies to encourage the emergence of that wide political consensus. It is a high debate on the state and character of our national identity that now engages us.

I am pleased to be invited to deliver this Menzies address.

 

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