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Introduction
It
is customary to begin any presentation with
mandatory remarks of gratitude for having
been invited to speak. However, on this occasion,
these remarks are all the more sincere, in
view of the fact that it is highly unlikely
that I will say anything that those in this
gathering will want to hear. As it is the
hallmark of intellectual debate to invite
the uncongenial and court the unpalatable,
the committee of the Society undoubtedly is
owed congratulations for so unprepossessing
a choice of speaker. I feel that these prefatory
and pacific compliments are highly advisable
in view of the fact that what follows is an
entirely unapologetic and uncompromising defence
of the "referendum" or "Convention"
model for an Australian republic. Indeed,
I intend to compound this heresy by going
on to argue that support for the referendum
model undoubtedly is the position that should
be adopted in the upcoming debate by any thoughtful
constitutional conservative who genuinely
wishes to preserve intact Australia's existing
constitutional genius.
In this connection, I feel that it is incumbent
upon me to make clear from the very beginning
the general constitutional position from which
I will be arguing. I flatter myself of few
things, but among those rare crimes that I
do not believe plausibly may be imputed against
me are any based upon a charge that I am a
constitutional radical, a constitutional adventurist,
or one so infected with "Founding Fathers"
syndrome that I desire to re-create the Constitution
in my own god-like image. No-one who has read
me or heard me in the past - and among those
so afflicted will be a number of the members
of this society - reasonably could believe
any such imputations. On the contrary, I have
always - for my sins - been type-cast as "constitutional
conservative", although I believe the more
pungent description applied to me at a number
of Australian law schools is "rabid constitutional
reactionary". This is an appellation that
leaves me unmoved. If the belief that Australia
has an outstanding Constitution, which is
to be preserved alike from the vain meddling
of the High Court and the depredations of
assorted academic vandals qualifies one for
such a description then, indeed, I am a rabid
constitutional reactionary. Indeed, were it
possible to be decorated for suicidally conservative
constitutional impulses, then I undoubtedly
already would have been awarded the Sir Garfield
Barwick Cross (third class) by the common
disapprobation of the Australian academic
community.
Undoubtedly, the professor doth protest too
much, but there is a purpose to this apologia
. To this end, I freely acknowledge that on
the present republican issue, as on any other,
I may be mistaken in my analysis, which is
the common lot of the constitutional commentator.
However, what simply cannot be argued is that
this analysis does not proceed from a reasoned
constitutional perspective that is thoroughly
and undeniably conservative in its genesis.
What this illustrates is the simple truth
that continued support for the monarchy is
not the only constitutionally conservative
position that may be taken within the Australian
republican debate. This is a fundamental point,
and one that should lead all conservatives
to seriously consider their position on the
November referendum: put simply, to be a constitutional
conservative and a monarchist are not one
and the same thing.
My approach in this paper will be, first,
to essay some brief definition of "constitutional
conservatism" in an Australian context. I
will then attempt to isolate the main features
of what might be termed the "rational" case
against the monarchy. It may be observed here
that there are any number of "irrational"
arguments against the monarchy's continuance,
but what will be concentrated upon here are
those which are solidly based in reason. Critically,
the paper will go on to consider the consequences
of the failure of the projected republican
referendum later this year. It is this issue
of the consequences that will ensue from such
a failure that is absolutely critical to the
formation of an appropriate attitude to that
referendum. The conclusion of this paper on
this point will be that the collapse of the
November referendum will in all probability
lead, in the short term to medium future,
to an Australian republic in which the head
of state is directly elected.
This conclusion will lead the paper on to
a detailed examination of direct election,
where it will be concluded that the alteration
of the Australian Constitution to embody such
a method of appointment for the head of state
ultimately would involve the utter destruction
of Australia's existing constitutional order,
and thus (it hardly need be said) would be
entirely inconsistent both with any general
notion of constitutional conservatism, as
with the precepts underlying the most commonly
put arguments for the retention of the monarchy.
Following upon this rejection of direct election
will be a brief defence of the referendum
model, together with a rebuttal of some of
the principal arguments made against that
model. Finally, the paper will conclude that
the only means by which Australia's outstanding
constitutional system may be preserved is
via its translation intact from a monarchical
to a republican constitutional setting, a
translation which only may occur through the
success of November's referendum.
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