Introduction
Madam Chairperson, Professor Hilary Charlesworth, ladies
and gentlemen. The topic of my address Realising
the Republic is perhaps a little provocative,
as the Government has clearly stated that the question
is one for the Australian people to determine. The Government
did not enter into the republic debate with a fixed
end point in mind. We have consistently said that matters
of national identity should not be reduced to party
political issues to be fought over by politicians.
The recent Constitutional
Convention affirmed the growing support for change
and the issue will now be put to the broader community
to decide. The Convention was an outstanding success.
It attracted popular interest and sustained broad community
support. It was unique in generating wide-spread interest
in and conversation about our constitutional arrangements.
Yet the Convention was only one of a number of possible
steps in the process leading up to the realisation of
a republic. History has shown that the Constitution
is difficult to amend, irrespective of how proposals
for change are developed.
Tonight, I intend to outline the transitional and consequential
steps involved. Those leading up to, and those associated
with the holding of a referendum for change to a republic
or for the maintenance of the status quo and those associated
with the establishment of a republican form of government
by 1 January 2001, should that referendum be approved.
At the 1996 Federal election, the Commonwealth Government
undertook to hold a Constitutional Convention to consider:
-
whether
or not Australia should become a republic
-
which
republic model might be put to the electorate to
consider against our current system
-
in
what timeframe and under what circumstances any
change might be considered.
The
Constitutional Convention held in February this year
considered these questions. It considered a number of
republican options, as well as the no-change option,
in some detail. The majority of the Convention supported,
in principle, Australia becoming a republic. Of the
republican models, the Bipartisan
Appointment of the President Model clearly had the
greatest support. That model contains the following
basic elements:
-
A
nomination procedure under which nominations for
President from individual members of the public,
community organisations, local government and State
and Territory parliaments would be possible.
-
A
broadly representative committee to consider these
nominations before reporting to the Prime Minister.
-
An
appointment procedure requiring the Prime Minister
to consider the report of the committee before presenting
a single nomination, seconded by the Leader of the
Opposition, for approval by a two thirds majority
of a joint sitting of both Houses of the Commonwealth
Parliament.
-
A
dismissal procedure allowing the Prime Minister
to remove the President at any time by notice in
writing (to be ratified by the House of Representatives).
The
Convention voted overwhelmingly in favour of a resolution
that a referendum be held to test that model against
the existing system. The Convention also recommended
that if the referendum to be held in 1999 results in
support for a republic, that the new republic come into
effect by 1 January 2001. There has been some recent
discussion that the republic should come into effect
in time for the Sydney Olympics in the year 2000. I
am not convinced that the timetable for constitutional
change should be set by a sporting event, and I suspect
that few among the worldwide audience will be concerned
with the technical aspects of Australia's constitutional
arrangements.
In any event, if the referendum is approved, 1 January
2001 will be a daunting enough deadline given the range
of transitional and consequential matters that will
need to be addressed.
The Convention also made resolutions with respect to
a range of related
matters. Some of these concerned the Preamble to
the Constitution. The Convention resolved that the present
Preamble should remain 'intact'. It also resolved that,
in addition, a new Preamble should affirm and acknowledge
various fundamental features and values of Australia's
political system and Australian society.
In a statement made in the House of Representatives
on 2 March 1998, the Prime Minister confirmed that it
is the intention of this Government, if it is returned
at the next election, to hold a referendum before the
end of 1999. The Prime Minister stressed that the final
decision about whether Australia becomes a republic
will be put firmly in the hands of the Australian people.
In this regard the Prime Minister has asked me to bring
forward a proposal for consideration by the government
on the necessary processes leading to the referendum.
The success of the Constitutional Convention has given
the Government a clear indication of the substance of
the proposal that should be put to the Australian people
at the referendum. Although at this stage the precise
proposal has not been formulated, it is reasonable to
expect that the resolutions of the Convention will form
the basis of this proposal.
Any other outcome would be inconsistent with the reasons
why the Government established the Convention. Prominent
among these reasons was a belief that the Australian
people should have a say in the formulation of the proposal
which they will ultimately be asked to vote on. This
was seen by the Government as a way of ensuring that
the proposal put to the people stood some chance of
success
Record
of Constitutional Reform
The history of constitutional reform in Australia is
littered with failed attempts. The lesson from past
referenda is that there will be no change until Australians
are generally comfortable with the particular form of
change that is proposed. One is reminded of the observation
of Professor Sawer that "Constitutionally speaking,
Australia is the frozen continent" 1.
Of the 42 proposals put to the Australian people at
a referendum, only 8 proposals were carried. Of the
8 proposals which have been carried, all 8 had the support
of the major political parties. However 5 proposals
which had bipartisan support have failed.
These statistics lead us to question why constitutional
change has been so difficult to achieve. The conventional
view is that a proposal stands practically no chance
of being approved by the Australian people in the face
of significant and well-organised opposition. What is
not clear is why such opposition should nearly always
be successful in convincing a majority of Australians
to retain the status quo. Some commentators have suggested
that this can be attributed to the low level of knowledge
which the average elector has of Australia's constitutional
system. Other commentators argue that, given the political
stability which the Constitution has conferred on Australian
society, electors are wary of constitutional change
and need to be convinced of the benefits of any reform.
Some of the proposals put were, in retrospect, inherently
unlikely to be approved by the electors. Proposals which
would result in an increase in governmental power, particularly
Commonwealth power, ordinarily hold little electoral
appeal. Such proposals are also, of course, likely to
create significant political opposition, giving rise
to a lack of bipartisan support. By the same token,
the electorate has also shown a reluctance to endorse
proposals which would have limited governmental power
by entrenching certain basic rights. In 1988 a proposal
to entrench the principle of one vote, one value at
the Commonwealth, State and Territory level was emphatically
rejected at referendum.
As I said in my address to the Constitutional Convention,
no one who has considered the history of constitutional
referenda in Australia can doubt that broad acceptance
is crucial for the success of proposals for constitutional
change. Constitutional change will not be approved unless
there is broad support for the proposal and there is
no significant opposition. This means, at the minimum,
that there must be bi-partisan political support nationally
and support from the States. Constitutional change will
not succeed if the community perceives that change to
be a danger to present stability.
An
Australian Republic
Few political terms are as widely misunderstood as the
word 'republic'. The Republic
Advisory Committee noted in its 1993 report that
"a republic is a state in which sovereignty is derived
from the people, and in which all public offices are
filled by persons ultimately deriving their authority
from the people" 2.
In my address to the Constitutional Convention I referred
to Australia's independence from the United Kingdom
and said that the modern reality is that sovereignty
over Australia now firmly resides with the Australian
people. The unquestionable corollary of this is that
the Australian people are in a position to determine
their own constitutional future.
This independence from the United Kingdom is manifest
in Australia's legal system, particularly following
the passage of the Australia Acts by the
Commonwealth and United Kingdom Parliaments in 1985
and 1986. The preamble to the Australia Act 1986
states that it is enacted "to bring constitutional arrangements
affecting the Commonwealth and the States into conformity
with the status of the Commonwealth of Australia as
a sovereign, independent and federal nation". Since
the enactment of the Australia Acts, it
has undoubtedly been accurate to speak of the law governing
Australia as 'Australian law'. As the Chief Justice
of the High Court, Sir Gerard Brennan, has said, since
the Australia Acts came into operation,
the law of this country is entirely free of Imperial
control. The law which governs Australia is now Australian
law 3.
As then Chief Justice Sir Anthony Mason noted in the
Political Broadcasts case 4
"despite its initial character as a statute of the Imperial
Parliament, the Constitution brought into existence
a system of representative government for Australia
in which the elected representatives exercise sovereign
power on behalf of the Australian people".
In a practical sense then it can be said that Australia
already is a republic, except to the extent that its
Head of State is an hereditary monarch rather than someone
who derives his or her power, directly or indirectly,
from the people. The replacement of the monarch by an
Australian Head of State is the essence of the question
that will be put to the Australian people in a referendum.
However, the Constitutional Convention went further
than a simple minimalist approach to the question of
Australia becoming a republic and resolved that the
preamble to the Constitution should refer to certain
basic features and principles of Australian society.
It resolved that the preamble should contain elements
such as
-
an
affirmation of the rule of law;
-
acknowledgment
of the original occupancy and custodianship of Australia
by Aboriginal peoples and Torres Strait Islanders;
recognition of Australia's cultural diversity;
-
affirmation
of respect for our unique land and the environment;
and
-
reference
to the people of Australia having agreed to reconstitute
our system of government as a republic.
The
Constitutional Convention also indicated that the preamble
should be drafted in such a way that it does not have
implications for the interpretation of the Constitution.
Some might think it curious that a court should be prevented,
when interpreting the Constitution, from taking into
account the fundamental principles and values which
are said to underpin Australia's political system. On
the other hand, the resolution of the Convention seems
to be a product of concern over the use which a court
might make of such open-ended and general principles
in the interpretation of the Constitution.
How
a republic can be achieved
Perhaps the most obvious consequence of Australia's
independence is that the question whether Australia
should become a republic is not one which falls for
determination by the government of the United Kingdom.
Given section 1 of the Australia Acts,
conversion to a republic by legislation of the United
Kingdom Parliament is not a viable option. That approach
would ignore the reality of Australia as an independent
nation.
It has sometimes been argued 5
that references in the convention debates of the 1890's,
and in the preamble to the convention Bills and the
Constitution, to an agreement "to unite in one indissoluble
Federal Commonwealth under the Crown of the United Kingdom
of Great Britain and Ireland" are evidence of an intention
to entrench some features of the Constitution as unchangeable,
even by referendum under Section 128. In my view that
argument is no longer credible.
That Crown referred to no longer exists and Australia
ceased long ago to be under the Crown of the "United
Kingdom of Great Britain and Ireland". In my view there
is no real doubt that a republic at the federal level
can be established under section 128 of the Constitution.
The Constitutional Convention resolved that the preamble
to the Constitution should be amended to affirm and
acknowledge various fundamental features and values
of Australia's political system and Australian society.
One of the areas of significant debate among constitutional
writers is the extent to which section 128 of the Constitution
can be used to amend the preamble and the covering clauses
of the Constitution Act. 6
The view that my Department has taken in this debate
is that section 128 does extend to the alteration of
the preamble and the covering clauses of the Constitution
Act and that the power to 'alter' the Constitution
is not confined to the amendment of the text of the
Constitution proper. At the very least, a referendum
could give power to do so. It is most unlikely that
the High Court would give section 128 a restricted operation
that would prevent such a result. This is particularly
the case since the Australia Acts have
recognised that it is for Australia alone, and not a
foreign State like Britain, to determine Australia's
constitutional arrangements. In this context, the power
given by section 128 could be said to have expanded
once Australia attained its complete legal independence.
7
Next>
Footnotes
- Australian
federalism in the courts (1967) p208
- The
Report of the Republic Advisory Committee (AGPS,
1993) Vol 1, p.39
- Mabo
v Queensland (No.2) (1992) 175 CLR 1 at 29.
- Australian
Capital Television Pty Limited and Others v The Commonwealth
(1992) 177 CLR 106 at 138
- see
W A Wynes Legislative, Executive and Judicial
Powers in Australia, (Law Book Co). 5th edition
p 541
- See
articles by Stephen Gageler and Mark Leeming and Geoffrey
Lindell and Dennis Rose QC in Public Law Review,
Volume 7, September 1996
- G
Lindell and D Rose, "A Response to Gageler and Leeming:
'An Australian Republic: Is a Referendum Enough'",
Public Law Review, Volume 7, September
1996 at p 160
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