The subject of republicanism on its own may not seem intimidating to the wider community. However, when spoken in context with the separation of Australia from its monarchical foundations by amending the Australian constitution it is guaranteed to provoke a response. Such as the response made by Prime Minister John Howard who professed his opposition to Australia becoming a republic and suggested that it would not happen in his lifetime. Firstly, this essay will explore the legal issues involved in transforming Australia to a republic by focusing on such matters as the selection of a Head of State and constitutional amendment. Secondly, it will discuss whether such a transformation is possible during John Howard's lifetime.
Australian republicanism has historically been concerned with asserting Australia's independence from Britain. It is believed that such an assertion may have inaugurated in the early to mid nineteenth century when Australian colonies moved toward responsible government (Stephenson, 1994). In 1901 under the Constitutional Convention of 1890, the colonies of Australia federated (Stephenson, 1994). However, it is suggested that this federation did not generate an independent Australia, rather, that it occurred in 1942 with the adoption of the British Statute of Westminster 1931 where Australia attained Commonwealth legislative independence from Britain. Australia's independence was further enhanced in 1986 when the Australia Acts were passed. This legislation resulted in the abolition of appeals from Australian courts, and extinguished Imperial control on State laws (Stephenson, 1994). As a result, is it plausible to claim that Australia is now republic in nature? According to Winterton (1994), a republic may be defined as a state based upon popular sovereignty in which all public power is exercised by the people selected by the public. Therefore, as the historical evidence suggest, it may be plausible to assume that the Australia is already republican in nature.
During the 1990's, the Australian republic movement was a prominent motivator for a new Australian identity. As a result, parliament established the Constitution Convention under the Constitutional Convention (Election) Act 1997, to discuss whether or not Australia should become a republic; which republic model should be put to the voters; and in what timeframe might any change be considered (Constitution Convention, 1998). Consequently, Australia went to referendum in 1999 to vote on the republican proposal (Ritchie & Markwell, 2006). However, the referendum was not a success and the republican proposal began to lose enthusiasm. The reason for this failure may be interpreted from Tony Abbot (1994) in which he proposed that, it involves the greatest leap into the political, legal and constitutional dark in Australia's history'. In addition, Ward (2000) believed that whether the outcome of the republic referendum were to be no' or yes', it was without doubt going to be a lose/lose proposition for Australia. He clarifies by saying that the defeat of the referendum may be attributed to the proposed agenda concerning the selection of a President. The proposal suggested that the President would be selected by Parliament and not selected by the public, which opposes the definition and significance of a republic. In addition to the selection of the President, the proposed amendments of Section 59 and Section 64 under Section 128 of the Constitution may also have contributed to the defeat of the republic referendum.
Firstly, Section 59 failed to define or codify the reserve powers' or conventions' observed by the President (Ward, 2000). For example, the President would be bound to observe a vague set of non-legal rules, which is consistent with the purpose of the constitutional conventions. It has been argued by parliament that constitutional conventions cannot be codified; therefore, it is necessary to have the executive (President) and...
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