The Rt Hon Sir Zelman Cowen AK GCMG GCVO QC DCL

Second Annual Hawke Lecture, University of South Australia,
Adelaide, Wednesday, 9 June 1999

It is a great pleasure to come to Adelaide to deliver this lecture. I am delighted and honoured to see His Excellency the Governor with Lady Neal. You and I have been very good friends for many years, and I recall particularly our association with the Duke of Edinburgh's Commonwealth Conference in 1986. It is a great pleasure to see you Mr Hawke on an occasion which specifically honours you, and with you your lady wife.

I was present last year when Mr Hawke delivered the first annual lecture under the auspices of the Bob Hawke Prime Ministerial Centre. That Centre had been established in December 1997 in the University of South Australia, the State in which Bob Hawke was born. His hand has not lost its cunning; he said very early in his lecture here in Adelaide that the most brilliant decision of his career was his choice of two South Australians as his parents. He misses few opportunities.

The Centre will house an extensive library in which the Prime Ministerial papers, records and memorabilia of the Hawke years will be collected, together with other related material, and will be available for study and research. The Centre will also serve as a 'classroom for democracy', the public will have access to it, and programs founded on civics and citizenship will be devised and developed.

Dr Basil Hetzel, the foundation Chancellor of the University of South Australia, informed me of the project and invited me to become a patron of the Centre. I readily accepted, and I share the role with Sir Ninian Stephen, Sir Eric Neal, the Governor of South Australia, Dame Roma Mitchell, Dr Lowitja O'Donoghue and Ms Jennie George. I am also honoured by the invitation to give the Hawke Lecture, which is to be an annual event and a centrepiece in the calendar of the Centre, and I am specially pleased to be the first lecturer to follow Mr Hawke in this series. He spoke on the theme of A Confident Australia.

In The End of Certainty, one of Paul Kelly's important contributions to Australian political history, he wrote that Bob Hawke brought a great idea to the Party he inherited. This was the notion of national consensus, and this found expression in the argument of A Confident Australia in stressing the importance of fostering co-operation and consensus in achieving benefits for Australia and Australians.

Mr Hawke spoke with pride of his achievement in the course of his long term as Prime Minister. He also expressed concern at the appearance of divisive elements and acrimonious confrontation which threatens and puts at risk the confidence which has been built up through the vigorous promotion of consensus on particular issues.

I have been linked with Mr Hawke in the quest for consensus. I have never been involved in party politics, but as Vice-Chancellor of the University of Queensland during troubled and tumultuous days in the early 1970's, I was described retrospectively by a Senator of the University as "the pre-Hawke consensus man", and speeches and papers which I gave and wrote at that time reflected, and were intended to affirm, my strong belief that the sense of institutions being legitimate - especially the institutions of government - is the glue that holds societies together. When it weakens, things became unstuck. These were the words of Senator Daniel Moynihan, then an American presidential adviser - to Richard Nixon, as it happens, who was not - alas - listening.

I have taken as my theme for this lecture An Australian Republic - A Guide for the Perplexed. Some will recognise the words 'a guide for the perplexed' as the title of a famous medieval work of the great Jewish philosopher Maimonides, though we are here concerned with different perplexities.

For myself, I am concerned with the issues of an Australian republic which have assumed prominence in recent years, and particularly since Mr Keating succeeded Mr Hawke in the Prime Ministership and leadership of the Labor Party very early in this decade. The issues I shall discuss are those involved in the forthcoming referendum, and I shall not discuss other issues, for instance the position of the States.

The issue of an Australian republic has been in the public domain for a long time. Radical nationalists in the latter part of the nineteenth century called for Australian national independence as a republic, and saw the monarchy as a symbol of British dominance and Australian subordination.

At this time, the republican voice was small and ineffective, and it had no practical significance in the process of Australian constitution making, in and out of the constitutional conventions in the last decade of the nineteenth century. In the course of the twentieth century, particular events brought the issue forward.

In the wake of the constitutional upheaval of November 1975, when Sir John Kerr dismissed the Whitlam government, there was some talk of a republic. While the events did not involve the Queen directly - Sir John Kerr was at pains to point out that this was so, and Buckingham Palace made the same point - the fact that the Governor-General was appointed by the Queen and lacked any electoral base, but was representative of the Queen, and acted as he did, was seen by some as a constitutional deficiency, and as a good ground for remaking the constitution without monarchical institutions.

Such growth in republican sentiment as there was, however, was plainly insufficient to effect change.

So too, the advent of the Australian bicentenary in 1988 provided an occasion for discussion and debate on a range of constitutional issues, and in 1985 Mr Hawke, as Prime Minister, announced the establishment of a Constitutional Commission to undertake a comprehensive review of the Constitution and of constitutional issues. The Commission, which comprised six individuals, was to be assisted in its tasks by a number of Constitutional Committees, and I was appointed Chairman of the Committee on Executive Powers. I was then living in Oxford, but I came to Australia on a number of occasions to take part in the work of the Committee.

In the context of Executive Power, the Committee explored the matter of a republican form of government in some detail and there were some well known republicans in the committee. Nevertheless, despite their sympathy for the idea, the Committee resolved to make no recommendation for a republic to the Commission on the ground that there was no reasonable prospect of such a proposal being carried at a referendum, and that, this being the case, to present it with such a proposal for constitutional change might serve to prejudice the prospects of other constitutional proposals.

So it was that in its substantial report in 1988, the Constitutional Commission made no recommendation; it adopted the advice of its committee.

A few years before this time, Mr Hawke made a brief, but significant, statement on the issue of an Australian republic in his Boyer Lectures for 1979 which were entitled The Resolution of Conflict. He said that he did not believe that Australia would necessarily be better off as a republic, but that for reasons of national identity he would prefer to break the link with the British Crown and "have our own President as Head of State, possessing formal and ceremonial powers only".

In his memoirs published in 1994, there is no reference to or discussion of the republic. Mark McKenna in his book The Captive Republic says that as Prime Minister, Mr Hawke's energies were devoted to the portrayal of Labor as a non radical government in the consensus model. "During his eight years as Prime Minister, he avoided any open declaration of immediate support for a republic." Whether 'avoided' is le mot juste, he didn't address it.

On the other hand, in 1983 he went into the election on a party platform which included the goal of an Australian republic. He also spoke about constitutional reform, and attended the Constitutional Convention in Sydney in 1991, which was convened to commemorate the holding of the National Australasian convention of 1891, and this was the first Constitutional Convention in Australia - the 1991 Convention - to conclude with majority support for an Australian republic.

This gave support to Sir Ninian Stephen's observation in that year that the issue of Australia becoming a republic was "engaging the attention of the Australian people more than at any time in the past."

In late 1991, Mr Hawke resigned as Prime Minister, and was succeeded by Paul Keating. As he, Bob Hawke, said in his address on A Confident Australia last year, Paul Keating revealed himself to be an ardent supporter of the republican cause, and this advocacy climaxed in the historic speech in the House of Representatives in June 1995 on the establishment of an Australian republic.

His case was put squarely on the significance of an Australian Head of State:

In these and other ways, the creation of an Australian republic can actually deliver a heightened sense of unity, it can enliven our national spirit and, in our own minds and those of our neighbours, answer beyond doubt the perennial question of Australian identity - the question of what 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 to another country's past. We are simply and unambiguously Australian.

It was in this way that he met an argument that the exercise of changing to a republic was unnecessary. That argument led to the claim that the evolution of our constitution had yielded the outcome that we already had, in substance, the reality of a republic, with a little gilt on its sleeve - spelled gilt.

The Queen - the one person, but with multiple royal titles - the Queen of the United Kingdom, Queen of Australia, of Canada etc - was Australia's Head of State, and she was represented in Australia by a Governor-General. The office of Governor-General had evolved from one which was held normally by a British eminence, and appointed by the monarch on the advice of United Kingdom Ministers, to one in which the Governor-General was an Australian citizen appointed on the advice of Australian Ministers, specifically the Prime Minister.

This process of change, in terms of the source of appointment, began with the appointment of Isaac Isaacs whose biographer I had been. That the appointee would always be an Australian was not firmly established until the appointment of Lord Casey in 1965.

The Keating model envisaged a Constitutional President and not an executive president in the American pattern, an Australian Constitutional Head of State operating within a framework in which minimal change to the existing constitutional framework was necessary or required. Such an Australian Head of State would make sense to our Asian neighbours in the world who found the situation of the Queen not readily explicable. Of course, it would be possible to go further and propose more radical change, say by replacing the existing structure with an executive presidency operating within a full blown separation of powers as in the United States. I do not see this as desired or desirable. It is not our way, certainly at this stage.

The Keating proposals were not carried forward at this time because the Labor government fell at the election of 1996, and Mr Keating largely withdrew from the Australian political scene. What had been proposed for the Head of State was that he or she should be an Australian citizen, that he or she should be elected by a joint sitting of the two Houses of Parliament on a motion by the Prime Minister that a named citizen should be chosen.

When the Labor government fell at the election of 1996, Mr John Howard succeeded as Prime Minister. He had announced himself as a supporter of the maintenance of the monarchy in Australia, and as a supporter of existing arrangements.

In this respect, his government is divided. Some are declared monarchists, some are declared republicans. Mr Howard, however, committed the government to the holding of a convention to ascertain the views of the Australian people on the issue.

This body, partly elected, partly nominated, met in Canberra in February 1998, and I attended the opening session. For the rest, it must be said that the convention attracted wide public interest. One who had observed it wrote "The ten days of debate and deliberation in Old Parliament House during February involved the people of Australia."

One very real reason for this captivation may have been that ordinary people (and not merely extraordinary politicians) were themselves involved in the convention. The Convention concluded amidst considerable euphoria that was part its own and part that of the community at large. There was a proposal for a republic, and it was promised to be put to referendum. The mode of selection of the President took a great deal of the time of the Convention.

In line with the Convention's recommendations, the draft legislation for this year's referendum proposes that the following words, amongst others, be written into the Constitution:

If the Prime Minister's motion is seconded by the leader of the Opposition (if any) in the House of Representatives, and affirmed by a two-thirds majority of the total number of the members of the Senate and the House of Representatives, the named Australian citizen is chosen as the President.

I think that this proposal is good, and for reasons I shall elaborate later, I strongly support it.

I have followed the republic debate over many years with close interest, as a lawyer and, of course, because I had held the Office of Governor-General from 1977-1982, and I have written on aspects of it over the years. In 1988, the Bicentenary of European settlement in Australia was commemorated. On this occasion, I was invited to give the annual Churchill Lecture in the Guildhall in London. It was a great honour, and it was both appropriate and expected that I should speak to an Australian theme.

Taking Browning's title, I spoke on "Home Thoughts from Abroad"; abroad, at this time, was England from which I looked to home which was Australia. I looked at the evolution of institutions: within the existing monarchical structure, the Governor-General of Australia was an Australian appointed by the monarch on the advice of the Australian Prime Minister, and he discharged functions and powers which covered virtually the whole field to the exclusion of the monarch herself.

With such arrangements in place, the historian Geoffrey Blainey said that Australia was in practice a republic: effectively the powers of the Queen were exercised by her Australian representative. At the end, it seemed to me that the republican cause, while it commanded support, was by no means strong enough to lead to a successful constitutional amendment; any such proposal would fall very far short of achieving that.

There were other factors which might support a case for an Australian republic: the change in the mix of the Australian people through a far reaching migration program, and the fact that the monarch was of necessity largely an absentee.

So my conclusion was that my own experience as Governor-General which took me to many places within Australia, does not suggest to me that a change to a republic is necessary or seen as necessary to an adequate expression of our distinct national identity, though I know that others do not agree. For at least some of them, the issue is not seen as highly placed on the agenda of constitutional change: political leaders, like the Prime Minister (Mr Hawke) who list it on the agenda, appear content to leave it on the back burner. For a substantial majority of Australians, it is not on the agenda of change at all.

Then from the early 1990's, I published (and delivered in speech) a series of papers traversing the issues in an Australian republic. During this decade there has been a significant shift in national sentiment.

In September 1997, I gave an address at Georgetown, Washington D.C, in the course of which I said that on further reflection I had come to the conclusion that the symbolic change to a republic should be made, and that it was a matter of importance for an independent Australia to state simply and unambiguously our national status in constitutional terms. We would retain our parliamentary system unimpaired. We would have a Head of State who was an Australian citizen and resident who is exclusively ours, and who fully and unequivocally symbolises our nation.

In considering the best form of an Australian republic, we should give careful attention to a very simple question, but one which is crucial, and which has so far been largely overlooked - what will the President do? As the powers proposed for the President are to be 'the same as those exercised by the Governor-General,' perhaps some account of my experience of the Office of Governor-General will provide some guidance.

Some years ago, I read a newspaper paragraph relating to my successor as Governor-General, in which he was described as 'our democracy's latest rubber stamp'. This is not dissimilar to the view of the late 'Diamond Jim' McClelland that Governor-Generals were acceptable as long as they confined themselves to the opening of fetes and the ceremonial cutting of ribbons. These opinions plainly express a general picture of the office.

Let me say that I believe such a view to be wrong. There is no wisdom in caricaturing the Office, and no useful purpose is served by characterising it - or the Office of President in an Australian republic - as a purely formal ceremonial office. The evidence against it is overwhelming: the fact is that performance of the duties of the Office require, and will continue to require, long hard work and careful preparation of complex subject matter for meetings and activities and functions, involving many and diverse groups and people.

Through his or her activities the President can offer encouragement and give recognition to many Australians, some of whom are not very powerful or visible in the course and bustle of everyday life, and to the efforts of individuals and groups who work constructively to improve life in Australia.

In my term of office we - I include my wife, as the role of spouse should never be forgotten or under-estimated - visited and took part in meetings of an extraordinarily wide range of community groups, and our participation was seen as support and recognition of their work and activities. I believe that this gave them assurance and encouragement, and that is surely good.

The diversity of these groups was also reflected in our Government House guest lists. I believe too that the President can promote unity where practitioners of politics are partisan, and at times quite sharply divided, or, if this is too grand a claim, can at least help to preserve and keep in repair the consensus in our society.

This should always call for careful judgement on the part of the President in action and speech. It does not, however, prescribe a diet of colourless and insubstantial speech and activity.

I think that it is wrong to underestimate the qualities which will be required of a President. Both Sir Ninian Stephen, as the incoming Governor-General, and I were generously described as "too well qualified" for the Office of Governor-General. The suggestion was that other offices such as those of a High Court Judge, and maybe a Vice-Chancellor or scholar-professor or scientist or businessman, made greater intellectual demands.

I have to say that this is a view which certainly did not match my own experience of the needs of the Office. I was intellectually stretched and tested over my years in that role, and I often found that in the range of speeches, meetings and activities, I was stretched to the limits of my understanding, that all my knowledge, experience and capacity were called upon in responding to what was asked and expected of me.

Of course, I could have done the work differently, and at a different level, but for what conceivable reason should it be done other than at the very highest standard of which the incumbent Governor-General, or President, is capable? When one has regard to the range of activities in the Australian community with which the President may be involved, the facts demonstrate that he or she cannot be too well qualified. The person holding that Office has to possess a variety of capacities to be sure, including capacities to relate to people and to communicate at many levels.

Some of the relationships established may not be as intellectually complex as others, but they are all important. It may be that a judgement can be made that the taking of a distinguished High Court Judge from the Bench of that very important court creates difficulties for the manning of the Bench; it is quite another thing, in my opinion, to say that such a person should not be appointed either as Governor-General or as President because he or she is over-qualified, over-skilled. At the present time, I think it is very important to make this point.

And let me make it clear that I am not speaking specifically or even primarily about the role of the President in constitutional matters. I draw on an experience which tells me plainly that the most significant role that the President will perform will be in the course of daily relationships with many diverse groups of Australians, talking with them, and, hopefully, not at them. The response is often quite remarkable and very moving; it reinforces my view that this is how the Presidency will make itself most effective.

Of course, the Governor-General or President also has important constitutional roles: at intervals relating to appointment of Ministers and dissolution of Parliament, the more regular business of the Executive Council, and fulfilling the famous Bagehot 'rights' - 'to be consulted, to encourage, to warn'.

These constitutional powers will invariably be exercised subject to the continuing conventions of our Constitution, and almost invariably on ministerial advice. But, as I believe, the more important role of the President, as of the Governor-General, is that of representing the nation to itself. That may sound high-flown, but it says what I deeply believe.

The question that must then be asked is whether someone capable of fulfilling the very considerable demands which will be made on a President is more likely to be found by election by at least two-thirds of the Parliament, or by direct popular election? I myself have no doubt of the answer.

What would be the likely outcomes of these alternative systems of election? Let us first take parliamentary election on the terms proposed for this year's referendum. For a person to be chosen by the Prime Minister from the names that come forward in the proposed public nomination process, and for the Prime Minister's nomination to be seconded by the Opposition Leader, and for that bi-partisan nomination to be approved by two-thirds of a joint sitting of the two Houses of Parliament, ensures that the person who becomes President will have to be acceptable widely across the political spectrum.

It seems to me as certain as we could make it that such a system will result in the election as President of a non-partisan person of distinction who is endorsed by all major parties as a suitable person to be President of Australia. The draft legislation for this year's referendum specifically says that the person must not be a member of a Parliament, nor a member of a political party. Even without that provision, it seems to me that election by two-thirds of a joint sitting is safeguard enough.

What would be the case with direct popular election?

Presumably we would have competing candidates campaigning around the country to be elected as President. The most likely scenario is that political parties would endorse candidates for election. There would very likely be a Liberal or Coalition candidate, a Labor candidate, a Democrat, and so on. Where would the candidates secure the resources to run their nation-wide campaigns - to organise their speaking tours and their media conferences, to fund their media campaigns, and to distribute campaign leaflets and how-to-vote cards?

The most likely answer appears to be from political parties. What surer way could there be of guaranteeing that a politician - a partisan figure - will be elected as President? Yet the election of a partisan Head of State is the antithesis of our system of constitutional parliamentary democracy which requires a non-partisan Head of State.

On what issues would the competing candidates campaign?

What would be the issues on which they would debate to gain advantage, one over the other? Presumably they would, like ordinary politicians, appeal to various sections of the community by advancing policies to favour this group or that, to emphasise this priority or that? Again, this seems to me the antithesis of our sort of parliamentary democracy in which the Head of State stands for all the people, and the policy issues are debated and decided in Parliament and in elections for Members of Parliament.

Under direct election, it is highly likely that we will end up with a President elected with, say, 51% of the vote, after distribution of preferences, to a runner-up's 49%. This does not look like representation of all the people.

The system of parliamentary election is much more likely to produce a President acceptable across the whole community, the full breadth of the political spectrum, rather than a person supported by just over half and opposed - opposed - by just under half the people.

What sort of person would stand for election as President under such a system?

It seems that it would be someone who was willing to be subject to a national political campaign of self-promotion, and - it may be - denigration of others or by others. I very much doubt whether the non-partisan figures who have held the office of Governor-General would have been willing to take part in, or be subject to, such a campaign.

This is partly because those who may best serve us as President are not by nature campaigning politicians. They are likely to hold positions from which it is not appropriate or proper to campaign in such a way.

For myself, I can safely say that, although I would have been willing to allow my name to go forward with bi-partisan support to a joint sitting of Parliament, I would not have agreed to take part in a nation-wide election campaign, struggling for media interest and the support of this party or that pressure group.

There is another point. If the President of Australia is directly elected by the people, he or she will be the only holder of public office who is so elected, the only person with that direct democratic legitimacy. The Prime Minister, after all, is indirectly chosen by the people, as the person best able to command the confidence of the House of Representatives, which the people elect. It may well be that, especially in a crisis, a directly-elected President will read the powers of his or her office expansively.

If the people have chosen the President, then he or she - emboldened by an election victory after a stirring campaign - may feel entitled to assert the powers of the Head of State. We may find that over time, gradually in day-to-day governance and perhaps dramatically in a crisis, we have created a presidency which challenges the Prime Minister and the Parliament. Who knows what form of executive or semi-executive presidential system we could end with?

Certainly, it is clear to me that the stable continuation of our present parliamentary system would be prejudiced by the direct election of the President. As someone who - to repeat - wishes to see the continuation of our parliamentary system but with a genuinely Australian head of state, that seems to me most undesirable.

I therefore support the Constitutional Convention's proposal that the President be elected by two-thirds of a joint sitting of the two Houses of federal Parliament. This is the proposal which will be put to the people in November this year, and I believe it can be safely recommended to our fellow citizens as giving us an Australian head of state without radical change to our parliamentary system.

Of course there are other aspects which merit attention. There is one I would like to mention in closing. It is the question of whether Australia's becoming a republic has any implications for Australia's continued membership of the Commonwealth.

Bob Hawke's active participation in Commonwealth affairs as Prime Minister, including his very successful involvement at Commonwealth Heads of Government Meetings, is recounted in his memoirs. I have myself maintained an interest in the Commonwealth as an observer and writer, and I share with many other Australians a desire that our involvement in the Commonwealth should not be diminished by a change in our constitutional arrangements.

The point can be simply put: Australia's becoming a republic is entirely consistent with our continuing membership of the Commonwealth. This point was established almost exactly fifty years ago, when the consequence of a member state of the Commonwealth becoming a republic was considered by the Commonwealth Prime Ministers meeting in London in 1949.

It was there resolved that India, which had put the matter before the Prime Ministers, might maintain membership of the Commonwealth as a republic, and that India would for its part recognize the monarch as Head of the Commonwealth. The resolution was then specific to India and to King George VI. Principle pointed to a more general application, and so it was that a general rule was adopted. The upshot is that the modern Commonwealth includes states which are republics - the majority - those which have their separate monarchs, and a substantial minority which retain the monarch, among these Australia.

To one like me, who had accepted as mother's milk the doctrine that membership of the Commonwealth required allegiance to the Crown, and that the bond was one of common allegiance, the new doctrine, though practically beneficial, came in 1949 as a surprise.

To Sir Robert Menzies, still in opposition on the verge of his long career as Prime Minister, there were great historic difficulties in accepting it. I remember that soon after the decision of the Commonwealth Prime Ministers was made public, I - then a young Oxford law teacher - was sitting alongside Mr Attlee, who was then Prime Minister of the United Kingdom, and a party to the London agreement. A youthful purist (some might say pedant), I asked whether in view of all of the history, he had difficulty in reaching his conclusion. The most laconic of men, he answered directly to the point. 'No.' That was all.

We have come a long way in the fifty years since then. Australia has come a long way since Bob Hawke's Boyer lecture of just 20 years ago. The idea of a republic has moved sharply up our nation's agenda, and now commends itself to many more Australians than was the case two decades, even ten years, ago.

Thank you again for honouring me with your kind invitation to deliver this second annual Bob Hawke lecture. I wish him, and the Centre which bears his name, well.