Protecting constitutional process and public confidence

A briefing prepared by David d’Lima, SA State Director, FamilyVoice Australia – 10 May 2019

The Australian Labor Party’s republican ambition is being largely ignored by commentators ahead of the 2019 federal election. While FamilyVoice Australia acknowledges the right of a political party to have a view on a major constitutional change, it must occur in accord with the Commonwealth Constitution and in a manner that maintains public confidence in the Parliament and the process.

Further a proposal of this magnitude should be well publicized, the public should be well informed and it should be conducted in a fair and even-handed manner. This cannot be about political point-scoring.

The republican policy of the ALP was most recently enunciated in its 2018 National Platform:

67. Modernising our Constitution also entails a transition to an Australian Republic, with an Australian Head of State, who can fully represent our traditions, values and aspirations as a nation. Labor will hold a national vote to give every Australian voter a voice in the process of becoming a republic with an Australian Head of State. If the result is yes, Labor will consult with the Australian people, other political parties and the States and Territories as to the form the Republic should take. A member of the Labor ministry will promote community debate about the advantages and disadvantages of the various republican models. When detailed constitutional changes are prepared Labor will initiate an appropriate secondary referendum under section 128 of the Constitution.

According to a report by 9news on the 2015 ALP Conference:The party also agreed to a road map to a republic, including appointing a minister for the republic and holding a constitutional convention followed by a plebiscite to determine the best model before holding a referendum.

Public confidence

The ALP goes into the election promising a government-sponsored national vote without providing detail on the nature of the change. Whilst the party is entitled to seek constitutional reform, it must be done with due respect for the Constitution.  

It would be improper for any government to attempt such reform without respecting the constitutional mechanism (s128) by which voters must receive a proposed law, not an in-principle idea, so they can vote intelligently in a manner which binds the Parliament.

It is therefore not appropriate to hold a national vote upon a question such as ‘Should Australia become a republic with an Australian Head of State? Yes/No’. This fails the constitutional requirement for a specific executable alternative to the current arrangement. The ALP strategy as it stands appears to be an attempt to soften voters up, by firstly asking a generic question about an Australian head of state. The seriousness of the issue requires a mature, even-handed approach that is truly democratic and not driven by spin doctors.

There is also a real risk that Parliament may receive a positive indication of republican sentiment from the voters, but might fail to produce a model for a subsequent referendum, leading to a loss of public confidence.

A Minister for the Republic

A second concern is the proposed Minister for the Republic, following the appointment (in 2017) by the ALP of MP Matt Thistlethwaite as “Shadow Assistant Minister for an Australian Head of State”. Since the Constitution (s64) provides for the Queen’s Ministers of State it would be inappropriate (and arguably illegal) for executive councillors to advise the Crown to appoint a minister for its own demise, without a directive for change obtained in a referendum that gained assent from most of the voters in most of the States (s128). No Minister for the Republic should be appointed under the existing Constitution.

The High Court would inevitably be drawn into such matters. It may be asked to rule whether the Crown may lawfully appoint a minister for its own demise. It could be asked to adjudicate whether all the six states must agree before we may radically rework the “one indissoluble Federal Commonwealth under the Crown” (as enunciated in the Preamble to the Constitution - which is part of the legislation that enabled Federation).

Protecting the people and the Constitution

While FamilyVoice Australia is not expressing a view on the republican question in this statement, we are respectfully advising the public and the parliamentary candidates about the ALP’s ambition and its ensuing risks.

Therefore ahead of the 2019 federal election we are urging candidates for Parliament to consider if the ALP's republican strategy is promoting this cause in a manner not entirely in keeping with the Constitution.

Further, it would be prudent for Parliament to find a mechanism to prevent governments attempting to secure constitutional changes through publically-funded plebiscites, postal surveys, or a misuse of the Australian Bureau of Statistics. Such a mechanism would help to prevent the apparent manipulation of due process which may result in a loss of public confidence in the Parliament.

We therefore are asking candidates the following question of ahead of polling day:

If elected, would you vote to prevent executive government spending public money to ask the people questions about modifying the Commonwealth Constitution, except via referendum?