Address to Lawyers for a Republic

NSW Parliament, Sydney.




Good evening and thank you very much for having me here tonight. It’s a pleasure to be speaking with your group. I acknowledge friends in the room including James Mack, President of the NSW Labor Lawyers, and members of the NSW Parliamentary Friendship Group for an Australian Head of State.

When the referendum on the Republic failed in 1999, I wasn’t ready to give up hope that we’d never get the chance again for the Australian people to decide on the question of independence from Britain. I figured, however, that it would take at least another 20 years for the question to return to the front of people’s minds.

Now here we are in 2017, two years short of that twenty years. And so I think it’s about time we take stock of where the Republican movement is, and where it may be going.

It’s fair to say that referendums in Australia have not had a good run since 1999. First, we had the push to have local government recognised in the constitution, with a referendum that was due to occur in September 2013. That had bipartisan support from the Labor government of the time and the opposition leader, Tony Abbott. But unfortunately politics got in the way, when Kevin Rudd replaced Julia Gillard as Prime Minister and the referendum date was delayed, and then when Tony Abbott won the election and back-flipped on the idea of holding a referendum altogether.

I don’t think most Australians would even have noticed the demise of that particular referendum, though undoubtedly there was misery felt by inhabitants of town halls across the country. That was the third time such a referendum had been proposed and failed, although this one was still-born at an earlier point. The other previous attempts in 1974 and 1988 at least made it to a vote.

Now, we have the push to recognise Indigenous Australians in the Constitution. Unlike local government, this is of course a highly emotionally charged issue which a great many Australians care about. The tireless campaigning of Recognise, the lobby group set up to promote the referendum, has succeeded in giving it prominence. 

This referendum seeks to do two main things – one symbolic and one practical. It seeks to make specific mention of Aboriginal and Torres Strait Islanders in the constitution and acknowledge them as the First Peoples of our land – a seriously important step on the long road to reconciliation. It also seeks to address historic elements of our constitution which, to modern eyes, look like racism. This includes Section 51 (xxvi), which allows the federal government to make laws that specifically target Australians based on their race. This was necessary, according to former Prime Minister Edmund Barton in 1898, in order to "regulate the affairs of the people of coloured or inferior races who are in the Commonwealth". We have truly come a long way since then.

There is general agreement among policymakers that this change must happen, and is well overdue. The push for this referendum is bipartisan. In fact it is deemed so important that this referendum passes, that the only question is how to get the referendum process absolutely right.

Yet even with this goodwill, the recognition referendum has become bogged down. Prime Minister Tony Abbott, when in office, set an admirable target of holding the referendum on the 50th anniversary of the successful 1967 referendum, which took the first steps in removing discrimination against Indigenous peoples contained in the constitution. That anniversary is May this year.

That ambition has now been discarded, as the Referendum Council charged with preparing the framework for the referendum delays further the reporting date for its proposals. Its reporting date is now 30 June this year, which we must all hope they make. 

Now I am absolutely in favour of ensuring proper consultation by the Council and the utmost care being given to the question that is put to the Australian people. But in further delay, there is a danger that the sense of urgency is lost and the issue becomes captive to the politics of the day.

Once the Council’s proposals are put forward, I hope that they are given the serious attention that the issue deserves. I hope a date is set that is considered immovable, so that the ‘yes’ campaign can begin in earnest and ensure the highest possible degree of success for this referendum. It is too important a question to fail.

So, that is the state of referendums in this country since 1999 – what about the Republican cause?

After an inevitable mourning period post-1999, it’s fair to say that the movement has recovered momentum. But not so much that we can sit back and coast.

There have been several events, mostly in recent years, which have boosted the republican cause. The first – and what I would argue the most significant recent event – was Tony Abbott’s temporary reintroduction of knights and dames in 2015. The reaction of the Australian people to this, I think, tells you a lot about how a future republican campaign should be handled.

It’s hard to describe the level of outrage caused by this stunt of Mr Abbott’s, announced on Australia Day of all days. To say it contributed hugely to his downfall as Prime Minister a few months later is not, I do not think, an overstatement.

What it told us is that many Australians are happy enough with the status quo of us being a constitutional monarchy, under the ultimate command of Queen Elizabeth – just as long as they are not reminded of it too strongly. 

On that day, it was certainly thrust in our faces. Most Australians hated it, and they hated their Prime Minister for doing it. Why did they hate it so much? A quick search of news reports from back then brings up terms like “throwback” and “old-fashioned” and “out of touch”. That’s what the constitutional monarchy feels like to Australians when they are forced to confront it – an old colonial relic, an embarrassing reminder that we are officially a junior associate of another country. 

It’s only when they are allowed to forget it for an extended period of time that our status as a constitutional monarchy is once more acceptable. Helpfully, Australian of the Year David Morrison kept the issue on the agenda last year by using his Australia Day address to call for a republic. We must not forget, also, that we are currently in a situation where the leaders of the Labor, Liberal and Greens parties are all pro-republic. It’s a unique moment in time, and it’s encouraging.

Another emerging factor to work in our favour, I believe, will be Brexit. Over the coming years, we will see the United Kingdom and its place in the world changing. As it turns inward, it may no longer seem like the superpower it once was, and the inclusive, welcoming and diverse nation it once was. Its values as a nation may diverge from Australia’s. We shall see. In this ever-changing world, nothing can be taken for granted.

Then we have the flip side, the not-so-encouraging factors. For the Windsor family are a canny crew, always looking after their legacy, and have recently unleashed two of their most potent biological weapons – two toddlers named George and Charlotte.

Do not underestimate the power of royal babies. This is the ‘warm and fuzzy’ side of monarchy which is most difficult to counteract – people like feeling they have a connection with the country some Australians refer to as the ‘motherland’, with its traditions, with the prefix ‘royal’, and with the royal family itself. If the popularity of the monarchy was at its most recent nadir with the Charles-Diana-Camilla mess, then it has certainly recaptured its former glory recently thanks to William, Catherine, and their children. These young, modern royals have done much to re-energise the British monarchy and endear the institution once more to its former colonies. 

It’s not really something we, as republicans, can or should fight against. In fact, the only way through is to treat it as an irrelevancy. Yes, people love the Royal Family, and Australians will continue purchasing Women’s Weekly magazines with their faces emblazoned upon the front covers. But you can enjoy the royal family while, at the same time, not wanting to be their subjects. It is not an insult to a nice-seeming family for us, as a country, to want to declare our independence from them. 

Which brings me to my next point – how to counter the argument, most recently made by our current Prime Minister, that we must wait until the passing of our current Queen Elizabeth before restarting the push for an Australian republic.

I don’t understand this. Indeed, for me, it seems nothing more than a delay tactic. Pushing for a republic has nothing to do with respect for Queen Elizabeth. She is, in fact, an amazing woman - having ruled England with dignity for sixty-five years and recently celebrating her Sapphire Jubilee. We have, it is fair to say, given her a good run. But an Australian republic has nothing to do with her. It is about standing up for a principle that is bigger than just one person.

It also sets a dangerous precedent – if we tie the republican cause to one particular monarch now, who is to say that a similar argument could not be used when William and Catherine take the throne? “Oh they’re young, we should give them time”? You can see it happening, and I don’t think it’s something we should accept.

So where does this leave us? Well, as ever, the Republican cause is an ongoing project, alternatively dispiriting and hopeful. It is also, inevitably, a long-term cause. 

Right now, it is time for us to support our Indigenous brothers and sisters in their fight for just constitutional recognition, and to step back and allow them prominence. We must not distract from their cause. Referendums are hard enough – we must allow space, and airtime, to ensure this referendum is successful.

This is not a negative thing for the republican cause. We can work with the indigenous recognition campaign, and learn from that campaign, and help that campaign. When it is successful, as I am confident it will be, we can learn from it.

For the republican cause will only be terribly set back if the recognition referendum fails. A failure like that would be so devastating and impactful for indigenous Australians, and the rest of the country, that it would reflect on all future referendums. For if Australia cannot even pass a constitutional change as obvious as this, with bipartisan support, then there will be a sense that constitutional reform is doomed.

By contrast, if it is successful, the light will shine on the Republican cause too – it will show that referendums are not impossible to win and it will bring renewed vigour to the fight.

So, in the immediate term, I urge you to direct your energies there when the time comes.

However that does not mean that work on the republican project should cease. There is much preparatory work that can be done. For if we learned anything from 1999, it was that you cannot achieve a major societal change like independence if you do not lay the groundwork first. And this is where you, as lawyers, have a unique role to play. 

It is time to start the conversation again. We have had a good kickstart in recent years, but I think it’s true to say that the Republican cause is not being treated as a mainstream issue. There is a perception that it is an elite, intellectual project that has no resonance with everyday Australians. That is an image, I think, that is leftover from 1999 when the key spokesperson was a wealthy banker – who now happens to be our Prime Minister. The Australian Republican Movement has done very well to keep the issue alive in its so-called ‘dormant’ years, and that is no small thanks to its outgoing president Tim Mayfield. 

But a referendum is only won in the hearts and minds of Australians. There is much work to be done to tap into the latent patriotism of many Australians, to appeal to their sense of identity as Australians and the pride in their country, to communicate the message that we are ready to stand on our own two feet. To quote the ARM itself - so that every Aussie child can aspire to the top job. We will never win if we do not make Republicanism a kitchen table issue. If we do not make it real, if we do not make it matter for the future of everyday Australians. We must get out of the ivory towers and on to the streets, and we need to make it matter as an issue at every election.

But apart from this kind of public campaigning, there is also a serious amount of work to be done behind the scenes. I am so glad that a group like yours exists, because you can do some really important work in aid of the Republican project. I am pleased to see that for example you have begun work on “issues papers” which bring a legal perspective to some of the most thorny issues involved in creating an Australian republic– because thorny they were in 1999, and thorny they remain.

Many words have been written about why the referendum in 1999 failed. In my view, a lot of it can be put down to a confusion over the technicalities of what our Australian republic would look like, which caused Australians to believe that it was too complex a question for them to truly grasp. And so they voted no.

The division which occurred in the republican camp was unnecessary and ultimately fatal. It could have been prevented, I believe by a simple thing – preparation. 

There is still division in the movement on the subject of models. For the record, I am now a direct electionist – I think it is the model which most empowers Australians, it reduces fear about a head of state that is not chosen by the people, and it is easy for voters to understand. But my personal belief doesn’t matter. The serious work that can be done now by people like you is in thrashing out the disagreements. Analysing the proposed models, demonstrating the legal constraints on power that need to be present in any model, and explaining the models to Australians well ahead of the next decision-making point is key.

It’s clear we can’t wait until a convention to sort out these issues in our own movement. It has to happen before, and it can start happening today. Division is death, and it is only by presenting a united front when we get the next precious chance to put the Republic to a vote that we have a chance to win. 

The work to be done is complicated and very, very difficult. But it is also incredibly exciting. It is nutting out the details of what our future nation may look like, making sure it works, and smoothing the transition from one mode of governance to another. There is scarcely anything more significant than that. 

I urge you to continue with the good work that you are doing, and make sure people know about it – for doing complicated work is one thing, and communicating it in simple terms is something completely other. But it is important, and it is necessary, and it could help us achieve one of the most momentous changes in our nation’s history.

Thank you.