Justifications for Initiating a Constitutional Amendment to Establish an Australian Republic: An Empirical Study

AuthorGlenn Patmore
Published date01 March 2012
Date01 March 2012
DOIhttp://doi.org/10.22145/flr.40.1.4
Subject MatterArticle
JUSTIFICATIONS FOR INITIATING A CONSTITUTIONAL
AMENDMENT TO ESTABLISH AN AUSTRALIAN REPUBLIC:
AN EMPIRICAL STUDY
Glenn Patmore*
ABSTRACT
Under section 128 of the Australian Constitution federal parlia mentarians have the
power to initiate constitutional amendments. This paper examines the justifications of
politicians a nd public figures for proposing a referendum to introduce an Australian
republic. From interviews conducted between 2 008 a nd 201 1, three important
justifications for proposing change emerged: promoting a new national identity;
success in passing a referendum and in re-election; and timeliness. An examination of
these justifications raised additional questions, includi ng: what reasons did politicians
and public figures think were significant? How did their justifications f orm and
develop? What were the reasons that inspired political action? The reasons f or
initiation of a referendum for a republic, and recognition of indigenous people in the
Australian Constitution are also compared. The paper adds to t he literature on formal
constitutional change, and also offers a critique of the field.
I INTRODUCTION
In the 1990s, Australia's political lea ders debated and considered a constitutional
amendment that would have introduced a republic. While the resulting referendum
failed, the republic continues to be deba ted in the media and by academics. Recently, it
has been the subject of renewed scholarship.
1
This interest has been accompanied by
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* BA, LLB (Hons) (Mon), LLM (Queens); Senior Lecturer in Law, The University of
Melbourne. I wish to thank for their assistance, Mr Tom Andrews, Mr Patrick Coleridge,
Ms Candice Parr and Ms Claire Tonner who read material to me, transcribed in terviews
and pr ovided research assistance. A special debt is owed to Sarah Shrubb w ho read the
paper and offered comments. Special thanks must also be given to the Law Research
Service. Finally, I am grateful for the comments of the anonymous referees and the editors.
The errors are my own.
1
See, eg, Sir Gerard Brennan, 'The Parameters of Constitutional Change' (2009) 35(1) Monash
University Law Review 1; Glenn Patmore, Choosing the Republic (UNSW Press, 2009); George
90 Federal Law Review Volume 40
____________________________________________________________________________________
public inquiries and government summits. In 2004 the Senate published its rep ort, The
Road to the Republic, in 2007 the Rudd government held the 2020 Summit, and in 2009
the Senate published a report: Plebiscite for an Australian Repu blic Bill 2008.
2
Each of
these has addressed, among other things, the process for initiating a constitu tional
change that would make Australia a republic.
This paper examines a specific aspect of that process: the reasons and justifications
political leaders may have for proposing change. These are import ant sin ce they
prov ide a n expla nation for the initi ation of a n ame ndment to th e Australian
Constitution. A constitutional alteration can only occur if the parliamentarians and the
government propose a referendum. Thus, the research question examined in this paper
is: what reasons and justif ications are offered by political leaders for proposing and
supporting a constitutional amendment to introduce an Australian republic?
The views examined are of thos e political leaders who participated in the 1999
republican referendum campaign and who subsequently supported or opposed such
change to the Australian Constitution. T hey included former Prime Ministers, former
Leaders of the Opposition, Members of Parliament, and public figures including
delegates to the 1998 Republican Constitutional Conventi on. Since 2009, some
constitutional scholars have begun to use in-depth interviewing a s a means of studying
the process of constitutional amendment.
3
The research for this paper adopts a similar
methodology. From interviews I conducted between 2008 and 2011, three important
_____________________________________________________________________________________
Williams and David Hume, People Power: The History and Future of the Referendum in
Australia (UNSW Press, 2010); Sarah Murray (ed), Constitutional Perspectives on an Australian
Republic: Essays in Honour of Professor George Winterton (Federa tion Press, 2010); Peter
Gerangelos, 'The Winterton Thesis, Post-Referendum Reflections, and Reform (Republic or
Not)' (Paper presented a t the Gilbert and Tobin Centre for Constitutional Law Conference,
Sydney, 18 February 2011).
2
See, eg, Senate Legal and Constitutional References Committee, Parliament of Australia,
The Road to a Republic (2004); Department of the Prime Minister a nd Cabinet, Responding to
the Australia 2020 Summit (2009) Australia 2020 <www.australia2020.gov.au/response
/index.cfm>; Senate Finance and Public Administration Legislation Committee, Parliament
of Australia, Plebiscite for an Australian Republic Bill 2008 (June 2009).
3
See, eg, Williams and Hume, above n 1. As Professor Jason Pierce remarked in 2006, 'only a
handful of American public law studies have employed interviews, and most of these
relied on interviewing as a secondary research tool to identify variables and frame
hypotheses': Jas on Pi erce, Insi de th e Mas on Co urt Revolu tion: The High Court of Australia
Transformed (Carolina Academic Press, 2006) 298. See also Clement E Vose, Constitutional
Change: Amendment Politics and Supreme Court Litigation Since 1900 (Lexington Books, 1972);
Karen O'Connor and Lee Epstein, 'The Importance of Interest Group Involvement in
Employment Discrimination Litigation' (1982) 7(3) Black Law Journal 411; H W Per ry,
Deci ding to Deci de: Agend a Se tting in the Uni ted S tates Supr eme Court (H arvard
Univ ersity Pres s, 199 1); Kevin T McGuire, The Supreme Court Bar: Legal Elites in the
Washington Community (University Press of Virginia, 1993); Bernard Schwartz, Decision:
How the Supreme Court Decides Cases (Oxford University Press, 1996); Charles R Epp, The
Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective
(University of Chicago Press, 1998). In Australia, few public law researchers have used
interviews, and most of those who have focused on the courts: see, eg, Pierce ; Robert
Thomson, The Judges (Allen & Unwin, 1987); Garry Sturgess and Ph ilip Chubb, Judging the
World: Law and P olitics in the World' s Leading Courts (But terworths, 1 988); Carolyn Evans
and Beth Gaze, 'Discrimination by Religious Schools: Views from the Coal Face' (2010) 34
Melbourne University Law Review 392.

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