Local Constitutional Conventions Forum, 29 April 1999 Old Parliament House, Canberra

Good Morning. I am pleased to give today's opening address to the Local Constitutional Conventions Forum, and to talk about the referendum on an Australian Republic planned for later this year.

As a member of the Board of the Constitutional Centenary Foundation, I have watched with interest the progress of the Local Constitutional Conventions programme that the Foundation has conducted in association with the Australian Local Government Association. I have also been pleased to see the Foundation continuing to play its role in explaining the factual issues surrounding the republic debate.

This audience would no doubt be aware that Sir Ninian Stephen, the Foundation's patron, and Professor Saunders, the Foundation's deputy chair, have agreed to play a special part in helping to explain these issues. Sir Ninian has agreed to be chair of the expert panel recently established to consider educational materials developed for the Government's neutral public education programme on the republic issue. Professor Saunders has agreed to be a member of the panel. The other members of the panel are Professor Geoffrey Blainey, Dr Colin Howard and Dr John Hirst.

The panel will assist the Government to ensure that the materials are fair, balanced and accurate. The Government is pleased that this eminent group has agreed to provide its assistance. It brings together a wealth of knowledge about Australia's constitutional arrangements and development, and expertise in the process of explaining the issues surrounding the republic debate to Australians.

Overview of progress since the Convention

The Government has been working steadily since last year's Constitutional Convention to prepare for a constitutional referendum later this year. The Government has announced that it plans to put two referendum questions to the people, one on the republic proposal and one on the preamble proposal. In finalising the detail of the proposals, the Government will consult the States and Territories, the Opposition and other political parties and groups. The consultation process will cover the broad approach to the republic issue at Commonwealth and State levels, as well as the detail of the draft legislation. The legislation giving effect to the proposals, and on which people will vote, will be introduced in the Parliament by June. In March, the Government publicly released draft legislation so that all interested parties would have an opportunity to comment on the detail of the proposals.

In developing the draft, the Government has been concerned to flesh-out the republic model endorsed by the Convention, but not to go beyond what is necessary to implement that model. The Government does not see this exercise as an opportunity to generally tidy-up the Constitution. Our aim has been to develop a workable proposal which has broad support as an appropriate legislative expression of the Convention model.

The Government recognises the importance of providing the States and Territories, the Opposition and other political parties, and interested groups with an opportunity to have a say in relation to the development of the proposals. It is for that reason that the Government decided to release its three Bills in the form of exposure drafts. The exposure drafts, in particular the Constitution Alteration (Establishment of Republic) Bill 1999, which I shall refer to as the Republic Bill, may at first sight appear rather formidable.

The Republic Bill may appear to contain a substantial body of amendments and it might be assumed that, if enacted, the Bill would have significant consequences for the day to day workings of our system of national government. However, that assumption would be wrong.

The substitution of a President for the Governor-General and the Queen, and the removal of monarchical references scattered through the Constitution, would not have significant consequences for the day to day workings of Parliament or government. The Republic Bill would not have the same practical consequences as previous constitutional amendments that have been accompanied by much less fanfare.

The Bill would not give the Commonwealth any new powers. The Bill would not give the Commonwealth any new powers such as were given in 1916 in relation to State debts, and in 1946 in relation to a range of social services. It would not give new rights to vote, such as were given to residents of the Commonwealth territories in 1977.

Indeed, it is important to be quite clear about what the Bill would not do:

• It would not alter the day to day operation of the Commonwealth Parliament.

• It would not alter the current federal balance between the Commonwealth and the States.

• It would not give the President powers different to those of the Governor-General.

• It would not create an office of President that is more grand or expensive than the office of the Governor-General. Contrary to some rather colourful predictions, it would not authorise the construction of a presidential palace.

• It would not alter the Australian flag or the national anthem.

• It would not mark a break with our tradition of stable, parliamentary democracy.

In fact it is not unreasonable to suggest that the Bill is of less practical significance than the Australia Acts passed in 1985 by the Commonwealth and United Kingdom Parliaments at the request of all the States - and passed in the absence of a referendum. Already, those Acts have terminated the power of the United Kingdom Parliament to legislate for Australia. Those Acts have confirmed the capacity of the States to enact laws overriding Imperial laws of the British Parliament, or having extra-territorial operation. They have also abolished appeals to the Privy Council.

It should be clear that the Republic Bill would not greatly change the basic governmental arrangements that have served Australia so well. Nor would it graft another country's republic model onto those arrangements. It would change some titles, but not the basic operation of our system of national government.

The Governor-General currently exercises the powers of a head of state, but is not our head of state. The President, exercising the same powers, would be our head of state. The object of the Bill is simply to give Australia an Australian head of state who can fit into our current arrangements in place of the Queen and her representative in Australia, the Governor-General.

Having spent some time talking about what the package of legislation would not do, I should briefly outline what it would do, before returning to consider the republic and preamble proposals in more detail.

The Republic Bill would, if carried at a referendum, alter the Constitution and provide for a President as head of state. The proposed mechanism for selecting a President, including a committee to receive and consider nominations, is consistent with the recommendations of the Convention. The Republic Bill deals with the powers of the President in the way recommended by the Convention. It would also remove the monarchical references from the Constitution.

The Presidential Nominations Committee Bill 1999 is not a constitutional amendment. It is a Bill for an ordinary Commonwealth Act. It provides in more detail for the establishment and role of the nominations committee. In doing so, it fleshes-out the very broad outline provided by the Constitutional Convention.

The Convention resolved that the process for community consultation and evaluation of nominations is likely to evolve with experience and is best dealt with by ordinary legislation or parliamentary resolution. As this Bill would not alter the Constitution it would not have to be approved at a referendum.

Nonetheless, this Bill is likely to be of great interest to voters because it provides the means by which the Australian people can be involved in selecting a President. For that reason an exposure draft of the Presidential Nominations Committee Bill has been released at the same time as the Republic Bill.

The third Bill, the Constitution Alteration (Preamble) Bill 1999, which I shall refer to as the Preamble Bill, would, if carried at a referendum, insert the preamble set out in the Schedule to the Bill in the Constitution.

The Government is now considering comments on the Bills and, over the next month or so, will decide what if any changes should be made. The Government intends to make a final decision on all amendments in May.

The Government's proposal for an Australian republic follows closely the model supported last year by the Constitutional Convention. Under that model, Australia would be a republic with an Australian head of state to be called the President.

Individual members of the public, community organisations, local government and State and Territory parliaments would be able to nominate a person for President and there would be a broadly representative committee which would consider nominations and report to the Prime Minister. The Prime Minister would consider the committee's report and present 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.

The Prime Minister could remove the President by notice in writing, but must seek the approval of the House of Representatives for removal, thereby facing the possibility of a vote of no-confidence. The President would serve a five year term. A person could serve more than one term as President.

Schedule 1 to the Republic Bill contains the main provisions dealing with the office of President. It will, if carried at the referendum, repeal five sections of the Constitution, and insert six new sections. It makes provision for a process for choosing the President, sets out the qualifications of the President and states that the President may be removed by the Prime Minister. It provides for the powers of the President, which are the same as the Governor-General's. The oath or affirmation to be taken by the President, as well as the President's term, are dealt with in Schedule 1.

Schedule 2 contains consequential amendments to the Constitution, primarily to remove monarchical references. Schedule 3 contains provisions to facilitate the transition from constitutional monarchy to republic with minimum disruption to existing institutions and arrangements. It would make provision only for transitional matters which must be addressed in the Constitution itself.

The Presidential Nominations Committee Bill provides for a Nominations Committee to be established whenever it is necessary to choose a person as President. The Bill provides that a committee will comprise 32 members appointed in accordance with rules set out in the Bill. The functions of the committee would be to invite and consider nominations for appointment as President, and to give a report to the Prime Minister.

As I have indicated, the Republic Bill does not have significant implications for the day to day operation of the Commonwealth government. The object of the Bill is simply to give Australia an Australian, non-hereditary head of state with the same powers as the current Governor-General.

Many of the provisions of the Bill are directed to consequential and transitional matters. Many replace current references to 'the Governor-General' with references to 'the President'. Others confirm that the alterations of the Constitution do not affect the continuity of existing institutions such as the Parliament and the courts.

The provisions of the Bill have been designed specifically to facilitate the transition from constitutional monarchy to republic with the minimum disruption to our existing public institutions and arrangements.

A crucial practical issue will be co-ordination between change at the Commonwealth and State levels. The Constitutional Convention resolved that, while it is desirable for any republican arrangements to commence simultaneously in the Commonwealth and all the States, not all States may wish or be able to move to a republic within the Commonwealth's timeframe.

On that basis, the Convention resolved that the Government should consider whether specific provision would be required to enable States to retain their current constitutional arrangements following any change at the Commonwealth level.

The Republic Bill is structured to ensure that appropriate co-ordination can be achieved. Change to a republican form of government would involve change to State constitutional arrangements. In some cases, a State would need to hold a State referendum as a matter of law. In others, the State government may decide that a referendum should be held, even though it is not legally required.

The Government agrees that, if a republic is supported by the people, simultaneous change at Commonwealth and all State levels would be highly desirable. The Government also recognises, however, that not all States may be able to move simultaneously.

The Government's aim is to ensure that any process of change does not create unnecessary tension in Australia's federal system of national government. The Government is of the view that the risk of tension is much less if any change is implemented simultaneously by the Commonwealth and the States.

That said, the Government is conscious that it is not for the Commonwealth to dictate State constitutional arrangements. The Republic Bill would not force change at State level. The Bill would simply provide the means to ensure that no State could be stymied by technical impediments if it sought to change in accordance with its own constitutional requirements.

Of course, the process to achieve simultaneous change, in the event that change is supported at the referendum, is properly the subject of continuing consultation between the Commonwealth and the States.

The Preamble Bill raises quite separate issues. The Convention resolved that a preamble should be inserted in the Constitution itself to reflect contemporary Australian values and aspirations. The Convention did not attempt to formulate a particular form of words, but broadly identified issues to be covered. The Convention further resolved that a range of other matters be considered for inclusion.

The Convention was, however, quite clear that the Constitution should be further amended to ensure that any new preamble could not have implications for the interpretation of the Constitution. It recommended that the existing preamble to the British Act which sets out the Constitution proper - that is the Commonwealth of Australia Constitution Act - be left in place.

Of course, the Convention debate enabled a significant degree of public input on the issues surrounding the formulation of any new preamble. Other public processes, such as the Constitutional Centenary Foundation's recent 'Preamble Quest', have elicited further public input and fostered a spirited public debate on the issues.

All of these factors have been taken into account in the formulation of the exposure draft of the Preamble Bill which has been released for public comment. The Government welcomes further comment on the exposure draft and will consider the comments that it receives. These comments will be taken into account in deciding what if any changes should be made to the Bill.

It must be remembered, however, that there is interest in the inclusion of a preamble in the Constitution even among Australians who do not support a change to a republican system of government. It is for that reason that the Australian people will have an opportunity to adopt a new preamble, irrespective of whether or not Australia becomes a republic.

People will be asked two separate referendum questions, one on the republic and one on the preamble. Consistent with the Convention resolutions, the Preamble Bill would amend the Constitution by inserting a preamble in it. It would also insert a provision in the Constitution making it quite clear that the preamble is not intended to have any legal effect.

I have been talking about the process of developing and explaining the specific referendum proposals. It remains for me to talk about the larger process of putting the proposals to the people at constitutional referenda later this year.

As many here today will know, section 128 of the Constitution provides that, once a proposed law for the alteration of the Constitution has been passed by the Parliament, the Governor-General must put it to a referendum between two and six months after passage.

The Government has announced that the referendum will be held towards the end of this year, probably in November. It will therefore be necessary to introduce the constitutional amendment legislation into the Commonwealth Parliament around the middle of this year, by about June. It will also be necessary to have the legislation passed in good time to allow at least two months between passage and the voting day.

Once the referendum legislation is introduced, a reasonable opportunity for scrutiny by the Parliament, interested groups, the media and the community at large will be essential. A parliamentary committee - probably a joint select committee - is likely to be established to consider the legislation.

The Constitution alteration legislation would need to be passed by the end of August for a referendum in November. The timetable that I have outlined is tight. It is nevertheless realistic.

Another matter which has generated some interest, and which it is appropriate to touch on before concluding, is the question of consideration of further constitutional change. The Convention resolved that, if a republican system of government is introduced, the Government should convene a further constitutional convention.

It went on to suggest, broadly, that the object of the convention should be to review the operation and effectiveness the new republic and 'any other matter related to the operation of our system of government under republican arrangements'. A number of issues were specifically identified, including the rights and responsibilities of citizenship and 'the system of governance and proportional representation'.

The Government is conscious that there are currently a range of constitutional issues beyond the republic and preamble issues which could usefully be addressed. And it may be that a further constitutional convention would be the best way to approach some of these issues.

However, the question whether a further convention is appropriate, and the timing and scope of any such convention, would require careful consideration in the light of this year's referenda. It must be remembered that the 1998 Constitutional Convention considered only one issue over two weeks. Delegates were appointed and elected having regard to their ability to contribute to the debate on that issue.

It is unrealistic to think a convention will be seen as having authority to pronounce on any particular constitutional issue if it is asked to grapple with too many issues at once. Nevertheless, the convention will be one option that the Government considers as it looks for practical means of progressing the public debate on important constitutional issues.

To sum up, the Government has given a commitment to put to the Australian people at a referendum later this year the preferred republic model supported by the Constitutional Convention. The Government is well advanced on the way to meeting that commitment.

Exposure drafts of the referendum legislation have been released, comments are being received, and the Government is working towards introduction of the legislation around the middle of this year with a view to a referendum towards the end of this year.

The Government's proposal would not dramatically change the way our system of national government operates. The Government's aim is to ensure that the Australian people are presented with a safe, workable proposal for a republic that continues our tradition of stable, parliamentary democracy.

I look forward to a continuation of the lively debate that has begun on the republic and preamble issues, and the continued constructive involvement of the Constitutional Centenary Foundation. My best wishes for a constructive and informative forum.