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TRANSCRIPT OF
PROCEEDINGS
Monday, 2 February 1998
Page 14
Mrs HAWKE- We all feel
a very deep sense of responsibility in being part of this
historic Convention. I thank the voters in New South Wales who
have given me the privilege of representing them here and the
Australian Republican Movement for the opportunity of joining in
helping shape Australia's future. The debate about our future
belongs to all Australians regardless of political party, country
of origin, age or gender. The important task here in this place
is to get it right. We must by the end of the Convention give to
Australian people a clear picture of what republic means and what
it will involve for themselves, their families and our country's
future.
No doubt part of our
task involves an education process for ourselves and for those we
are here to represent. I learned a lot from the Convention
election campaign from men and women, young and old, who took the
trouble to discuss the republic in the streets and in the
shopping malls. Best of all, talking with people confirmed
something I had always known in my heart: that we Australians
have a very strong sense of belonging to a family- the Australian
family. The wonderful thing about Australia today is that this
sense of the Australian family, of belonging to one great family,
is growing stronger, not in spite of the increasing diversity of
our peoples but because of it.
The enrichment of our
national and cultural life through immigration goes arm in arm,
side by side with a deepening desire for a single and simple
expression of our Australian nationhood. The family analogy is
relevant to the idea of a republic. In a family the kids change
and grow and mature. As parents we judge ourselves and we judge
our success by seeing them accept more and more responsibility
for their lives. We feel a sense of failure if they do not assert
their independence, `leaving the nest' as we used to call it. The
kids limit their own capacity to grow and to mature if they feel
unable to strike out for themselves.
If we see the idea of
the Australian republic in this way, as part of a natural and
inevitable development, it is easier to understand why the
monarchy of the United Kingdom seems less and less relevant. I
travelled to England in 1953 with my passport stamped `British
passport- Australian citizen by birth and a British subject'.
With due respect to what my grandmother called `the mother
country', I feel that Australia is my mother and I am proud and
grateful to be her daughter. It is beyond question that most
Australians, old and new, young and old, think of themselves not
as British subjects but as Australian citizens and Australia is
our mother.
Through the focus of
Australia as a family, it becomes easier to see why a growing
majority of Australians feel that the House of Windsor is
inappropriate as the chief symbol of the nation. But that is not
the issue. Attitudes change because the world has changed. I am
old enough to remember hearing Mr Menzies, as he then was, saying
on the wireless, as we then called it, that Australia was at war
because Great Britain was at war. Nobody questioned it. In 1939
Australians did not question that we belonged to the British
Empire. If those things seemed a permanent part of life only 50
or 60 years ago, how much more 100 years ago when the Australian
Constitution was drawn up? Not being part of the British Empire
was not even an option for the Australian colonies in the 1890s
and Federation in 1901 did mean striking a bargain.
In return for the
protection we received from the British Empire, the Australian
people gave the empire allegiance. The symbol of allegiance, the
Badge of Empire, was the crown of the United Kingdom. In a
century of immense change, Britain itself and its role in the
world has changed as much as, or perhaps even more than,
Australia and our role. But under our Constitution as it stands
Australia still owes its national allegiance to the head of state
of another country. By saying `another country', I do not want to
downgrade for a moment our historic kinship with the people of
England, Wales, Scotland and Ireland. It is part of my own
family's story. But, unless we are willing to accept that Britain
today really is another country with its own future with distinct
and separate interests and goals, we diminish our own
independence and nationhood, and that means denying the full
sense of our belonging to the Australian family.
We are all witness to
the marvellous growth and development in our national life. Why
don't we match it in our Constitution? Most of us are not
constitutional lawyers, but we do have a strong sense of the sort
of nation we wish to be and we need a constitution which will
protect and nurture us in that great adventure together. It will
have to be changed if we want all Australians to be able to
declare their simple loyalty and individual allegiance to
Australia.
The question of
allegiance is at the heart of the meaning of the Australian
republic. Until the naturalisation law was changed a few years
ago, new citizens of Australia were obliged to pledge their
allegiance to the House of Windsor, their heirs and successors
according to the laws of the British parliament, just as members
of the Australian parliament- the men and women we elect to lead
us today- still must do. It is a joy to attend naturalisation
ceremonies and see the genuine pride and pleasure of new citizens
now that they are able to declare their allegiance to Australia
alone. The pledge of commitment now reads:
From this
time forward, I pledge my loyalty to Australia and its people
whose democratic beliefs I share, whose rights and liberties I
respect and whose laws I will uphold and obey.
There could be no
better statement of what the Australian republic means.
This land of ours is
a powerful land, full of wonders, not to be regarded just as
territory to be tamed and subdued but nurtured, respected and
loved. The Australian Aborigines have always known that and have
revered and cared for the land for thousands of years. Only now
after a mere 210 years of our occupation are we learning to do
the same. Among us, relative newcomers, as most of us are, with
this sense of reverence and wonder, there is also a new sense of
belonging not only to a marvellous continent but to a truly
Australian family. I do believe that the Australian republic is
the next great step toward binding us together as a nation and a
family and binding us, our children and theirs to this our land
and our home forever. Thank you.
Sir DAVID SMITH- Mr
Chairman and delegates, the question is: should Australia become
a republic? The answer is an unequivocal and resolute no. As a
first generation native-born Australian, whose family came from a
non-English speaking background in the late 1920s, I am grateful
that my parents and grandparents were able to find in this
country the peace and happiness that was denied to them in the
land of their birth because of their religion. They turned their
backs on a republic, and they chose the safety and the security
of this constitutional monarchy. I am not about to betray their
memory.
In 1988, the Hawke
government's Constitutional Commission found that almost 50 per
cent of all Australians were unaware that Australia has a written
Constitution and that in the 18- to 24-year age group the level
of ignorance rose to nearly 70 per cent. In 1994, the Keating
government's civic experts group found that 82 per cent of
Australians knew nothing about the content of our Constitution.
Our Constitution may
be altered only with the approval of the people at a referendum.
This is a rare and precious provision in a world where most
constitutions may be altered by parliaments and by governments
without the consent of their people. If the people are required
to give their consent, it must be an informed consent, a consent
based on accurate information about what our Constitution says
now and an ability to understand and evaluate the various
proposals for change. I propose to state some little known facts
about our Constitution. Mr Chairman, I seek leave to table a
document which records the evidence upon which I rely for these
statements of fact.
CHAIRMAN- I do
not think you really require leave. The only comment I would make
is that statements being tabled cannot be incorporated in Hansard.
They become part of the record of the Convention.
Sir DAVID SMITH-
I understand that. We are told that we must become a republic in
order to assert our independence of Britain. That is not true.
The Hawke government's Constitutional Commission included the
Hon. E.G. Whitlam as one of its members, and the commission was
advised by an advisory committee chaired by the Rt Hon. Sir
Zelman Cowen.
One of the
commission's terms of reference required it to report on the
revision of our Constitution to adequately reflect Australia's
status as an independent nation. In its final report, the
commission traced the historical development of our
constitutional and legislative independence, reported that at
some time between 1926 and the end of World War II Australia had
achieved full independence as a sovereign state of the world, and
concluded that the development of Australian nationhood did not
require any change to the Australian constitution. The argument
that we need to become a republic in order to become more
independent is simply not true.
More recently, the
republicans have argued that we must become a republic in order
to have an Australian head of state. This argument is also
untrue. Legal opinions and political decisions over the past 97
years confirm that Australia has two heads of state: a symbolic
head of state in the Queen and a constitutional head of state in
the Governor-General, who is clearly an Australian.
Though republicans
are agreed that they want to remove the Queen from our
Constitution, they are utterly divided and confused over who or
what to put in her place. The reality is that the Crown has a
most important role in ensuring the stability of our system of
government. Behind it lies almost 1,000 years of history and
tradition, which none of the several republican models on offer
could hope to replicate. Indeed, after seven years of, `It's
inevitable,' the republicans are still hopelessly divided over
just what `it' actually is.
Under our present
system of government, the constitutional head of state is chosen
by the government of the day, is advised by the government of the
day and may be removed by the government of the day. Nothing
could be more democratic or more republican. The role of the
Crown in the appointment and removal processes ensures that the
Governor-General's allegiance is to the entire nation, not just
to those whether in the community at large or in the parliament
who voted him or her into office.
In our democracy,
election to a public office, as distinct from appointment,
carries with it the notion of a mandate with policies to pursue
and supporters to be rewarded, and there is no place for such
influences on the person who occupies the desk at Government
House, Canberra. I have known governors-general who have been
deterred from acting or speaking in a particular way simply
because they knew they had been appointed and not elected. I most
strongly urge my fellow Australians not to surrender this very
powerful restraint on what is potentially a very powerful
position under our Constitution.
The claim that the
Governor-General is our constitutional head of state is not some
bizarre theory dreamed up for the purposes of the current debate
for it has been so since the beginning of Federation. The
Canadian Governor-General, Lord Dufferin, described the
Governor-General as a constitutional head of state in a speech he
gave in 1873. Paul Keating referred to the Governor-General as
our head of state in the very speech in which he announced in
parliament on 7 June 1995 his government's proposals for a
republic. The media, so intent on pushing for the republic, have
been referring to the Governor-General as head of state for over
20 years. Of much more significance than all this anecdotal
evidence is the legal evidence for the view that the
Governor-General is our constitutional head of state.
In 1900, Queen
Victoria signed a number of constitutional documents relating to
the future Commonwealth of Australia, including Letters Patent
constituting the Office of Governor-General, and Instructions to
the Governor-General on the manner in which he was to perform
certain of his constitutional duties. In 1901, two distinguished
Australian constitutional scholars- Andrew Inglis Clark and W.
Harrison Moore, later Sir Harrison Moore, both of whom had worked
on the drafting of our Constitution- expressed the view that the
Letters Patent and the Royal Instructions were superfluous or
even of doubtful legality on the grounds that the
Governor-General's authority stemmed from the Australian
Constitution and that not even the sovereign could direct him in
the performance of his constitutional duties.
In 1922, during the
hearing of an application by the state governments for special
leave to appeal to the Privy Council from the High Court's
decision in the Engineers' case, Lord Haldane, Lord Chancellor of
Great Britain and President of the Judicial Committee of the
Privy Council, made it clear that he shared the view of our
constitutional arrangements in respect of the Governor-General's
powers which had been expressed at the time of Federation by
Clark and Moore.
At the 1926 Imperial
Conference, the Empire's prime ministers declared that the
Governor-General of a dominion was no longer to be the
representative of His Majesty's government in Britain. The
conference further resolved that, henceforth, a Governor-General
would stand in the same constitutional relationship with his
dominion government and hold the same position in relation to the
administration of public affairs in the dominion as did the King
with the British government in relation to public affairs in
Great Britain.
The 1930 Imperial
Conference decided that, henceforth, recommendations to the King
for the appointment of a Governor-General would no longer be made
by British ministers but by the Prime Minister of the dominion
concerned. This decision further strengthened the constitutional
role of governors-general and their relationships with their
dominion governments.
In 1953, in the
course of preparing for the 1954 royal visit to Australia, Prime
Minister Menzies had wanted to involve the Queen in some of the
formal processes of government in addition to the inevitable
public appearances and social occasions. But the government's
legal advisers pointed out, as Clark and Moore had done more than
50 years earlier, that the constitution placed all constitutional
powers, other than the power to appoint the Governor-General, in
the hands of the Governor-General, that he exercised these
constitutional powers in his own right, not as a representative
or surrogate of the sovereign, and that the sovereign could not
exercise any of the Governor-General's constitutional powers,
even when she was in Australia.
In 1975 the
Commonwealth Solicitor-General, Mr Maurice Byers- later Sir
Maurice Byers- gave Prime Minister Gough Whitlam a legal opinion
in which he, the Solicitor-General, concluded that the Royal
Instructions to the Governor-General were opposed to the words of
the Constitution, that the executive power of the Commonwealth
exercisable by the Governor-General under chapter II of the
Constitution may not lawfully be the subject of Instructions and
that this had been the case since 1901.
The dismissal of the
Whitlam government later that year was to provide concrete
evidence of the correctness of all the legal opinions which had
been given over the previous 74 years. The Governor-General Sir
John Kerr, a former Chief Justice of New South Wales, did not
consult or inform the Queen in advance and he accepted the full
responsibility for a decision which was his alone to make.
After the
Governor-General had withdrawn the Prime Minister's commission,
the Speaker of the House of Representatives wrote to the Queen to
ask her to restore Whitlam as Prime Minister. Buckingham Palace
replied that the Queen has no part in the decisions which the
Governor-General must take in accordance with the Constitution
and that the only person competent to commission an Australian
Prime Minister is the Governor-General. That reply confirmed, if
confirmation were needed, that the Governor-General is indeed
Australia's constitutional head of state. Even so, it took
another nine years before the matter was resolved by giving
effect to the Solicitor-General's Opinion.
On 21 August 1984, on
the advice of Prime Minister Bob Hawke, the Queen revoked Queen
Victoria's Letters Patent and the Instructions to the
Governor-General and issued new Letters Patent. No new
Instructions were issued. In 1985, parliament passed a bill, the
purpose of which as set out in its long title was 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. This
became the Australia Act 1986.
In 1988 the
Constitutional Commission reported:
Although the
Governor-General is the Queen's representative in Australia, the
Governor-General is in no sense a delegate of the Queen. The
independence of the office is highlighted by changes which have
been made in recent years to the Royal instruments relating to
it.
If there should still
be any doubt about the fact that the Governor-General is our
constitutional head of state, we have the ultimate confirmation
in Prime Minister Keating's statement to parliament on the
republic. After confessing that it was impossible to codify the
reserve powers of the Crown and the conventions associated with
their use by the Governor-General, he admitted that the design,
processes and conventions at present governing their exercise by
the Governor-General should be transferred to the president
without alteration.
Here we see the
hypocrisy of the push for a republic. We are told that we lack an
Australian head of state, that we must get rid of the
Governor-General and replace him with a president. But then we
are told that the president would have exactly the same powers
and exactly the same duties as the Governor-General has now-
nothing would be added and nothing would be subtracted. One
Australian would replace another Australian and do exactly the
same job. All that would be changed would be the title on the
letterhead. If such a president would be an Australian head of
state, then that is precisely what the Governor-General is now.
It is time the
republicans came clean. We have heard a great deal about the
various types of republics we could have but not a single,
credible reason why we should choose to have any one of them. The
truth is that we are an independent nation and we have an
Australian as our constitutional head of state. There is no case
for Australia to become a republic.
Senator BOSWELL- Mr
Chairman, all of us are proud to be here at this Convention
representing the people of Australia, and we have come together
for the good of our country with the ultimate aim to determine
the best system of government for all Australians. This
Convention represents the most democratic process that a
government could deliver where all sections of the community have
a voice about their nation's future. This Convention is charged
with a most awesome responsibility- make no mistake, we cannot
afford to make mistakes here this fortnight.
It is not simply
about who will be head of state, it is not about what is the most
appropriate symbolic response in today's context; it is about how
Australia is to be best governed in the future and what system
will deliver this. In coming to this decision we must factor in
the absolute fundamentals of our present democratic system- the
fail-safe democratic way of life that has been built around our
constitutional system of government, that is enjoyed and
guaranteed to all Australians, that incorporates the essential
checks and balances on the exercise of power, and that has been
tried and tested under our present system. These safeguards have
worked for us for the past 100 years.
The nation's
forefathers crafted a unique Australian system that has endured
as one of the oldest continuous democracies in the world. Only
Britain, the USA, Canada, Switzerland and Sweden have had a
longer period of democratic rule. We have today a `made in
Australia', truly independent and democratic nation. By means of
the Statute of Westminster and the Australia Act, we are
completely free of legislative, executive, judicial,
administrative or other formal links to the United Kingdom.
In practice, the
Queen takes no part in the decisions which the Governor-General
must take in accordance with the Constitution. In 1975, the Queen
herself declined to intervene in our Australian constitutional
crisis. In reality, our head of state is an Australian and always
will be, and by High Court decision `sovereignty does not reside
in the Crown but ultimately sovereignty resides in the Australian
people.'
You do not hear
republicans complaining about the way democracy works under our
present system. Almost all delegates here would agree that our
democratic process not only works well but stands as a truly
working model to the rest of the world. Where the differences of
opinion lie is in the symbols of our present system and a desire
to change the definition of our nationhood by introducing a new
symbol.
Some believe
Australia must take the final step to nationhood and remove the
Queen as head of state when she is also head of state to other
nations, or that a modern statement of our nationhood requires an
Australian as head of state. But if we allow the debate to be
influenced disproportionately at the level of symbolism, if we do
not elevate it beyond these current and temporal concerns to the
real issues of the safest, most secure system of government for
the future of Australians, we are not serving all Australians in
making the right decision for our long-term future.
It is for those who
wish to change the system to prove beyond all doubt how their new
system will function, how it will give all Australians the same
certainty, adaptability and stability that exists under the
present system. The onus has to be on the proponents of change
and the onus must be of the highest order. This Convention must
set the standard of proof against any final proposal that is to
be put to the Australian people.
The present
Australian Constitution and system of government it enshrines has
demonstrated a proven and enduring capacity to deal with and
adapt to all circumstances over the past 97 years. The
Constitution has never presented an impediment to or a
restriction on the development and progress of the Australian
nation. Most importantly, the same adaptability, certainty and
stability is guaranteed for the massive changes that await us in
the 21st century. In relation to our system of government, there
is no such thing as a small change. Any change creates a major
disturbance to our present system.
I stand here as a
parliamentary delegate from the National Party and give you the
following reasons why we, as a party, and I as a party member, an
individual who has examined the issue deeply, support the status
quo. All aspects of our present system are finely intertwined.
This results in the sum total of our present parliamentary
democracy. Remove one aspect, however small, and the intricacy of
the functioning system is lost. Under the present system, having
an independent head of state plays an important role as a check
on the power of the executive which in modern society is an
expanding arm of government.
Eminent Australians
have spoken of how our present system controls power,
centralising in the executive. Sir Daryl Dawson explained it as
the danger of absolutism of cabinet and Prime Minister. The
reserve power of the Crown, especially the power to force or
refuse dissolution, in some instances is the only constitutional
safeguard. Don Dunstan said that in a Westminster system an
independent head of state is necessary to ensure a proper check
on the executive power. However, in this debate, major changes
are being proposed, such as an elected head of state and
codification of the head of state's reserve powers, which all
sides of the debate agree must be codified should the head of
state be popularly elected or appointed by a two-thirds majority.
This is a divergent
shift and invests political power in our head of state- something
that we have never had. With our present system, ultimate
political power rests with the people. In times of conflict or
disapproval, the people ultimately make the decision through an
election. Coming here as a representative of rural people, I know
that people in the bush use their members of parliament more than
most.
They appreciate the
access they have to their elected representatives and, through
them, to the head of power in the Premier's office or the Prime
Minister's office or in cabinet. Introduce a head of state with
its own mandate, bestowed either through a popular election or
appointment by a parliamentary majority, and the average
Australian will have a large piece taken out of their franchise
and be one step further removed from government decision making.
There is every chance
that a popularly elected president will introduce politics into
the position. The head of state would no longer be acting as a
surrogate constrained by the institutions of the constitutional
conventions, as now, but would act on a perceived mandate of the
people. There could be many circumstances where the head of
state, by their own conscience, may believe that they have a
right to act on the basis of their elected office, and feel a
duty to do so to act independently.
An elected head of
state endorsed by a political party would introduce politics and
a political strain between their office and the position of Prime
Minister. We would lose the essential requirement of political
neutrality of a head of state which is achieved under our present
system. We all know that if a Prime Minister loses the confidence
of the people he is replaced swiftly and effectively by either
party pressure or by general election. How will an unacceptable
head of state be removed? Does that not leave the head of state
in a most powerful position?
Without a doubt, the
power base will shift along the path of the United States of
America where the ultimate power rests in the hands of one
person. Sir Harry Gibbs said that the creation of the office of
president will substantially increase the power of the executive.
To increase the power of the executive is to increase the
possibility that sooner or later these powers would be abused for
partisan purposes. As Mr Justice Michael Kirby said, there is a
risk that a local head of state, especially one enjoying the
legitimacy of a vote into office, would assert and exercise
reserve powers which would be most unlikely to be used by an
appointed governor or state government.
Politically elected
or appointed presidents will be totally different to anything
known to Australians or anything they have experienced, and they
will not like it. An essential characteristic loved by all
Australians is our egalitarianism. When you start transferring
real political power into a head of state, with superior rights
and very little likelihood of dismissal, you will have created a
very powerful person.
Similarly, with the
option of appointment or dismissal by a two-thirds majority,
which also introduces a major shift in power into the head of
state, a two-thirds majority decision will divide along party
lines. Never in the past 50 years has a government had a
two-thirds majority in both houses of parliament. Any dismissal
will have to be on party lines, with an opposition deadlocked
against the government.
Mr Beazley and Mr
Turnbull are on record as saying that codification of power is
necessary for either direct or indirect elections. Those with any
knowledge of the legal process involved agree that the process of
codification would be a minefield. It would be impossible to get
an agreement on which powers and conventions to codify. Professor
Winterton agrees that full codification of powers removing all
discretion would be complex and difficult, and my ex-colleague
Gareth Evans has offered the prediction that it would take 30
years to effect and would be almost impossible to achieve.
At this Convention,
we must examine how these options would in fact work and who
would be responsible for nominating contenders. What sort of
person would put themselves forward to stand as a head of state
when it would be a long political process? If this had been the
case, there is no possibility we would have had the
governors-general of the calibre we have been fortunate to have.
These same outstanding governors-general would not have been the
sorts of people to stand for an election.
The McGarvie model
presents the minimalist position. While former Governor McGarvie
has not supported either a republic or a constitutional monarchy,
his aim has been to propose a scheme in substitution of the
Crown. He recognises that we must maintain the unique and robust
brand of democracy that we now have and that there would be a
most substantial alteration in the balance of power arising from
an elected or appointed president. But who would his proposed
substitute council of three eminent Australians consist of? He
has suggested at least one woman, but what should its composition
be? Should this be in the Constitution? If it includes a retired
judge, doesn't this conflict with the separation of powers?
The popular feeling
of the moment is not necessarily the best way to make a decision
for the next hundred years. The ALP and some members of the ARM
are on record as saying that, if the people want it, they will
support a popularly elected president. We must learn from others-
such as what recently happened in New Zealand, where populism
went unchallenged, where there was no official opposition to a
radical change in voting and where now, if you come third, you
have all the power to choose the government and, if you come
second, you come last.
There will also be
incidental consequences from changing our way of government.
While not the main issue here, it would be very difficult to
maintain our present flag with a Union Jack in the corner. Let us
not get spooked into change for change's sake. The one united cry
from all Australians is to ask for a system of government as good
as the one we have today, but we have that system now and none of
the models being put to this Convention give all the advantages
we now have. Ironically, while public opinion is so strongly
against politicians, the polls show a majority want to give
political powers to the replacement for our head of state. It is
up to the supporters of this uncertain experiment to prove it
will work.
I say to the people
at this Convention today and to the people of Australia that we
have an enviable system of government that gives us stability and
adaptability and checks and balances on excesses of government.
It is a system that has always been able to provide the solutions
and resolutions this country has needed over the past hundred
years and it is a system that guarantees to continue to do so for
the next hundred years.
CHAIRMAN-
Thank you. I call Mr George Mye.
Mr MYE- Before I begin,
I would like to pay my respects to my Aboriginal brothers and
sisters on whose land I am standing to make this delivery. I am
pleased to stand before you today to represent the people of the
Torres Strait on this very important and historic occasion of
discussing with other fellow Australians the future of the
Constitution of our country, Australia.
My homeland, the
Torres Strait, the Coral Sea islands of Australia, is the only
part of Australia that is geographically bordering on a foreign
country. Despite the many threats of illegal entry and health
risk- as the Prime Minister recognised publicly on his visit to
the Torres Strait in 1997- we islanders are standing firm in our
commitment to the country's unity and wellbeing and are forever
on the alert in our national responsibility as the front door
keepers of Australia's far northern gateway.
The Torres Strait
Island region, homeland to Australia's second minority group of
indigenous people, is located in the waterways which separate the
southern coast of Papua in Papua New Guinea from the northernmost
tip of North Queensland in the Cape York Peninsula area. It
consists of 150 islands, islets, that are continually washed by
`Kuliss', the westerly flow of currents from the Pacific Ocean
via the Coral Sea, and alternately by `Gutat', the easterly flow
of currents sourced from the Indian Ocean via the Arafura Sea.
Torres Strait
Islanders are proud Australians who volunteered in response to
the call for the defence of Australia in World War II when the
enemy's invasion of Australia's north became threateningly
imminent. From a total population of 3,000 give or take, 800 of
our community's able-bodied men replaced their traditional Lava
Lavas, their fish spears and harpoons with army khaki uniforms
and 303 rifles to form the Torres Strait Light Infantry
Battalion, the pride of every Ailan man even to this day. As
expressed in Ailan Tok by the men: `for the king, the flag and
the country' we swore on oath to fight and die. Whilst Torres
Strait Island society, like others, is subject to change over the
years and may not be today the exact replica of what it was in
1860, it still cherishes Ailan Kostoms which are directly derived
from the original society those many years ago.
The arrival at
Darnley, or Erub, Island in 1871 by the first Christian
missionaries of the London Missionary Society had a profound
influence over customs, tradition and society in the Torres
Strait, the most notable being the `Coming of the Light'- the
establishment of Christianity throughout the Torres Strait
region. The Queen became the head of our church and central to
the religious, cultural and civic traditions of the people of the
Torres Strait. To this day, this remains at the centre of our
cultural life in the Torres Strait. By removing the Queen, we
remove a way of teaching that has been passed on to our children
over many generations. The monarchy is an essential element of
our history and cultural inheritance. Its removal will deeply
affect the fabric of our society.
The debate about the
Australian Constitution which has led to this Convention has not
addressed the considerations of a range of diverse groups such as
my own within the Australian community. Norfolk Island, Cocos
(Keeling) and Christmas Island territories have their own
tailor-made constitutional arrangements within the national
framework of Australia, as does Lord Howe Island within New South
Wales. Torres Strait Islanders want both the islands and
Australia to be the model to the world of positive race relations
and wellbeing.
It is time,
therefore, to consider what sort of Torres Strait regional
administration and political arrangements will best meet the
needs of Islanders and all Australians in the 21st century. The
new report on greater autonomy for Torres Strait Islanders by the
House of Representatives Standing Committee on Aboriginal and
Torres Strait Islander Affairs should focus positive thinking.
While the mechanical problems of change are important to both
sides of the debate, consideration must also be given to the
symbolic nature of our constitutional monarchy.
Our connection to the
monarchy should be part of the consideration of all Australians
in this debate. Delegates may think that life in the Torres
Strait is far removed from the Australian Constitution, but in
1972 the issue of national status of Torres Strait Islanders, as
well as the northern boundary of Australia/Queensland with the
emerging independent nation of Papua New Guinea, was raised in
both national parliaments. Proposals had been sent forth by the
Commonwealth to move the islands of the Torres Strait across the
international border that would be formed with the newly
independent Papua New Guinea as a matter of goodwill to the new
nation. One suggestion by the Commonwealth was that the new
international border would coincide with the 10th Parallel,
ceding eight Torres Strait islands to Papua New Guinea. Torres
Strait Islanders mobilised an effective lobby group, the Border
Action Committee, placing the Torres Strait Islander point of
view before the Australian/Queensland government. The Queensland
government threw their support behind islanders by exercising the
states rights under the Australian Constitution. This significant
event in our history brought home to us an appreciation of a
system that, although complex, has the necessary checks and
balances to deliver history free of political coups and
revolutions.
The role of the
Governor-General in guaranteeing this stability is to ensure that
the laws of the Commonwealth and the Constitution are adhered to
in a manner which gives regard to the public interest. By
introducing an appointed or elected head of state there is a
chance that we will create a dual power system with competing
Prime Minister and President. An elected president would need to
act with regard to an electorate or political power base. A head
of state who is above politics can represent everyone.
The process of change
would be expensive, disruptive and unsettled if it is a process
which pursues changes for the sake of change. I believe the
current system of government has served this nation well since
Federation. We know it, we understand it and it meets the needs
of my people. We are not afraid of change, provided we can see an
advantage to the people.
Dr DAVID MITCHELL- Mr
Chairman, the privilege of standing here and participating in the
debate on Australia's future sits heavily and joyfully on me- a
privilege that I share with each and every delegate here today.
Of course, privilege always carries with it responsibility, and
that responsibility should sit heavily on everyone who is here at
this historic and important time as we participate in the cutting
edge of a debate relating to Australia's future. This great
nation will shortly have enjoyed 100 years of peaceful federation
under a democratic monarchy. Democracy is a keynote of this
nation. Every person, every man and woman in this land who is an
Australian citizen, has a right to vote. That, I have heard
today, is the mark of a republic. May I say, Sir, it is the mark
of a democracy. It is not only republics that claim democracy.
I listened carefully,
as I am sure each delegate present in the chamber listened
carefully, to that inspiring address from Sir David Smith. Sir
David explained in the clearest terms that Australia is
independent. There is no question about Australia's independence
from Britain: Australia is totally and completely independent.
Some may laugh- and I
see some laughing. I was warned before I stood at this podium
that there are some in this chamber today who would put their
fingers in their ears, who would treat with derision what I need
to say at this time; what I need to say by way of introduction to
the useful debate that I trust we will have together. I trust
that there is no-one who has been elected and no-one who has been
appointed who will not listen to other arguments. It is clear
that Australia is independent. Australia will be no more
independent by becoming a republic. It could not be more
independent than it is today.
There is no need for
me to say how much Australia and its people mean to me. Not only
am I now falling into the older age bracket but also I am
privileged to have a heritage of five generations of Australians
on my mother's side and five generations on my father's side.
This is my land. I love it. The Australians are my people. I love
them. And so do you, ladies and gentlemen, fellow Australians-
those who are here at this time and those across the nation who
are concerned with our future.
A head of state. You
have heard from Sir David a brilliant explanation about the head
of state. Of course the Queen is not an Australian citizen. She
is not a British citizen, either. She is the Queen. Historically,
it is the Queen who confers citizenship. No, I should not say
`citizenship': the right to live under a system of law and
government; a system of law and government inherited in this land
and moulded and changed to suit our special needs.
The Australian
Constitution is unique. It is very special. It has been noted
even today that the Constitution does not spell out the rights of
the citizens. It has been noted even today that the Constitution
does not spell out the restrictions, limitations and powers of
the Governor-General. This seems strange, even 100 years ago when
the Constitution was framed, doesn't it? No, fellow Australians,
it is not strange. There was a system of law and government
already in existence. The Commonwealth of Australia Constitution
has the nature of a treaty, a treaty among six states- colonies,
as they were then- independent from each other; a treaty as to
how they would operate together in one federal union.
Every person and
every nation has an ultimate measure of right and wrong. There
are four possible such measures. Either the government determines
the measure of law, the measure of right and wrong in a nation-
we call it totalitarian where the government makes the decisions
as to right and wrong, the government makes decisions as to the
law- or the decisions are made by a majority of the people as
they did in many of the Greek city states in years gone by. The
majority of the people decide what is right and wrong, they
decide the law, irrespective of the consequences for individuals
or minorities.
The third possibility
is that there is no law. Everyone, every person, decides his or
her own measure of right or wrong. We would call that anarchy.
The fourth possibility is that there is a measure of law above
and beyond what any person or any government might say. That
measure of law exists. A Christian or a person of any other
religion would be likely to say that that ultimate measure of law
comes from God. That was the situation in Australia. The ultimate
measure of right and wrong was a measure of godliness. There was
no need for a bill of rights. There was no need to spell out
rights and powers. There was no need to deal with the discretion
referred to in section 58 of the Constitution. There was no need
to do this because it already existed by virtue of the ultimate
measure of right and wrong.
That is still the
measure of right and wrong theoretically existing in this land. I
know it is not necessarily being applied, I know that there are
some elements of totalitarianism, I know there are some elements
of anarchy and I know there are some elements of majorities
making decisions, but the discretion of the Governor-General
referred to in section 58 is not an unfettered discretion. It is
a discretion bounded by the Christian scriptures. This is not
spelt out in the Constitution. It did not need to be spelt out in
the Constitution. It is spelt out in the Coronation.
Do you remember the
Coronation oaths in which Queen Elizabeth and the monarchs before
her for hundreds and hundreds of years declared that they
recognised that the only rule for government is God's law? That
is how the Governor-General is the Queen's representative. He
represents the Queen not personally, not as her delegate; he
represents her fulfilling the measure of right and wrong- the
measure so clearly established in the historic common laws
inherited in this land and onto which our great Constitution that
has lasted these many years is implanted.
As we read the word
`Queen' in the Constitution, in every circumstance except for
one, we should put in the word `Crown'. The one circumstance
where we need to mention `Queen' or `King' is in the appointment
of the Governor-General. The sovereign does this on the advice of
the Australian Prime Minister, not on any other advice. The Queen
must act on that advice. It might be that the Queen would
question it. It might mean that the Queen would discuss with the
Prime Minister whether he really understood what he was doing.
What a wonderful buffer this is.
Neither the McGarvie
model nor any other model put forward is sufficient to maintain
the Christian heritage of this land. This Christian heritage is
not just for people of religious disposition- it is not just for
Christians- but for all people of goodwill. I have no doubt that
everyone here at this Convention is a man or woman of goodwill
who would not want to see Australia throw away this wonderful
measure of right and wrong and replace it with a totalitarian
measure. Not one person here at this Convention would want to see
the measure thrown away and replaced with anarchy or indeed
thrown away and replaced with a system that does not recognise
the needs, wants and aspirations of minorities or individuals.
I know that the
republicans are not saying that that is what they propose or
intend, but that is the necessary implication of getting rid of
the system we now have. If you get rid of the Queen, you get rid
of the Coronation oaths. You get rid of that philosophical basis
and another basis is put in its place.
I am privileged to
follow Mr George Mye, who adverted to this in relation to the
Torres Strait Islands. How important for him and his people, who
have been in this land for many more generations than mine. How
important it is for those whom he recognised have seen the light.
Mr Chairman, I table a booklet which I have circulated to all
delegates. It is available to members of the public and is
entitled Republic? The Hidden Agenda.
I call upon this
Convention to understand that we must be able to explain to the
people of Australia the historic basis of the Constitution. We
have a duty and a responsibility to explain to the people of
Australia the way that the measure of right and wrong is or
should be determined in this nation. The measure is the law of
God. This was established in 888 by King Alfred. Most of us
remember King Alfred for another reason. In 888, King Alfred
declared the Ten Commandments read in the light of the New
Testament and Old Testament to be the Constitution of England,
and so it has remained ever since. It did not start with the
Magna Carta or the Bill of Rights. There was nothing new in the
Magna Carta. There was nothing new in the Bill of Rights. They
were not new documents. They were merely declaring an
understanding of the biblical principles as they applied to that
nation- declaring biblical principles which, perhaps in an
amended form, apply to this land today. My call, Mr Chairman, to
this Convention and the people of Australia is to continue as a
nation under our great Constitution, humbly relying on the
blessing of almighty God.
Mr RANN- Chairman and
delegates: being a participant in this historic Convention is a
privilege that imposes upon each of us special responsibilities
and duties. If these proceedings are to do justice to the
Australian people and to serve future generations, we must enter
into these debates with a spirit of goodwill, commonsense and
civilised respect for each other's views. We must be prepared to
negotiate and compromise in a flexible and pragmatic yet
principled way.
Most, if not all, of
us hold strong views about the issues that we are charged to
discuss during the next two weeks. We would be foolish, however,
to cling to either rigid dogma or to a fixed, non-negotiable
formula. To do so would be to fail the Australian people and,
just as importantly, to fail the test of history. As delegates,
we must have open minds rather than pretend pompously that any
one of us has all the answers.
More than 200 years
ago the founders of the American Constitution, leaders such as
Franklin, Adams, Jefferson, Washington and Madison, were big
enough and great enough to be flexible in negotiating a workable
system that would stand the test of time. The American Convention
in Philadelphia went for four months and saw more than 500
rollcall votes on key issues. Importantly, no individual, no
state delegation and no group or faction was always on either the
winning side or the losing side. There was give and take and a
sense of common purpose. During the ratification process that
followed, there was also a fundamental belief that there needed
to be broad public debate about the various options in order to
achieve not only substantial change but a deeply rooted form of
democracy that would endure.
One hundred years
ago, Australian delegates to the various meetings of the
Constitutional Convention in Adelaide, Sydney and Melbourne
showed that they had the courage and the foresight to put aside
self-interest and short-term political advantage to embrace
far-reaching changes that led to federation and the birth of our
nation. Leaders such as South Australia's Premier Charles Cameron
Kingston showed that their patriotism was underpinned by both a
willingness to lead and to compromise in order to achieve the
best possible result for all Australians.
We as delegates face
a challenge which is not dissimilar to the journey taken by
Australia's founders. For our predecessors, it was inconceivable
to embrace anything other than union under the British Crown,
even though they left us with a unique constitution, which
includes key elements from the United States, the United Kingdom
as well as Canadian and Swiss influences. Here in Canberra we are
considering a new model which reflects our maturity as a nation
with a willingness to chart our own destiny.
I am a republican. I
was born in Britain, raised in New Zealand and migrated to
Australia as an adult. For me, Australia becoming a republic is
not about change for change's sake but about defining what
Australia stands for and about where we are going as a nation.
For me, supporting a republic is not about embracing alien
concepts but about reinforcing our loyalty to Australia as
citizens, not subjects.
Becoming a republic
should not be interpreted in any way as being disrespectful to
the royal family, which has served Australia well and for which
most Australians hold great affection as well as respect.
Becoming a republic is not about ignoring Australia's history or
denying our heritage. It is in fact part of our evolution as a
nation. I believe that as we enter a new century it no longer
makes any sense for Australia's Constitution to insist that our
allegiance is to the person wearing the Crown of `the United
Kingdom of Great Britain and Ireland', according to the law made
by the Westminster parliament. For me, it makes no sense for a
modern, mature Australian democracy that article 59 of our
Constitution states:
The Queen
may disallow any law within one year from the Governor-General's
assent . . .
Constitutional
monarchists will no doubt tell us that this extraordinary power
of the Queen to disapprove acts of the Commonwealth parliament
has never been used. But it is there in black and white in the
Australian Constitution, and it is contrary to every principle of
parliamentary democracy in a free country- in any free country.
We must explain to
our fellow Australians that becoming a republic is not about
abandoning Australia's active role in the Commonwealth of Nations
headed by the Queen. At last count there were 29 republics and 15
constitutional monarchies with allegiance to the Queen within the
Commonwealth- and even five national monarchies such as Tonga and
Brunei with allegiances to their own royal families but still
within the Commonwealth.
Much of the debate
has so far focused on what kind of head of state Australians want
and how that person should be chosen. In December I joined with
my friend and colleague in Western Australia, Geoff Gallop, in
issuing a paper on this issue. We believe that, above all else,
Australia deserves a head of state who exemplifies, unites and
promotes our nation, who lives among us, whose loyalties lie
firmly and solely with the people of Australia, a fellow citizen,
one of us. Geoff Gallop and I argue that a president as
Australia's head of state would immediately remove any ambiguity
at home or abroad about his or her primary allegiances. In our
paper we argue that Australians would also want a president who
is above politics, with similar powers and ceremonial duties to
the Governor-General, who at present is not Australia's head of
state but remains as the representative of the Queen.
Former Prime Minister
Paul Keating, a number of my senior ALP colleagues and many
fellow delegates, both republican and monarchists, have a
preference for the appointment of Australia's head of state by a
two-thirds majority of federal parliament. I am certainly relaxed
about the two-thirds model, a variation of which I would support
as the method of choosing my own state's governor in South
Australia. I am aware that the two-thirds model is principally
designed to ensure a non-partisan choice as head of state by
attempting to entrench bipartisanship into the selection process.
This model would, after all, be a substantial improvement on the
present blatantly partisan process whereby governors and
governor-generals are selected by the party in power, often with
no consultation, let alone agreement, with opposition parties.
In our paper, Geoff
Gallop and I raised another option that deserves both debate and
serious consideration: the direct election of the president. This
is the option most favoured by the vast majority of Australians.
We are aware of the arguments against direct election: that the
elected head of state's popular mandate would rival that of the
Prime Minister and that the election process would become highly
political. Politicians who oppose the direct elect model argue
that those Australians who favour this system because they do not
want politicians to choose their president would simply end up
with a politician as their president if the direct elect model is
endorsed.
In 1897, delegates to
the constitutional convention were directly elected by the
people, all of them. And the deliberations of the convention were
directly voted upon by the people. One hundred years ago, the
concept of full democracy was considered somewhat dangerous and
radical, but there was enough confidence and goodwill to trust
the Australian people. That was 100 years ago.
I firmly believe in
the sovereignty of the Australian people, and I believe we should
listen to the view of Australians who believe that the position
of president should rest upon the ultimate power of people.
Whatever we decide and recommend at the end of this Convention,
all of us who are politicians, professional or amateur, should
endeavour to address the perception that politicians do not trust
the people and that the people do not trust the politicians to
select a decent president. If we do not address that issue, we
are in danger of recommending a system that will be thrown out by
voters in any referendum. I certainly reject the notion that only
the direct elect model requires the codification of the
president's powers.
If we are to
genuinely embrace a real and not a token republic, the
codification of the president's powers in respect of the
parliament, the cabinet and the Prime Minister is essential
whatever model is supported. An Australian head of state with
properly codified and limited powers, elected or at least
nominated by the Australian people, would give the public a real
stake in this important constitutional change. Endorsing this
approach is also more likely to achieve the level of public
support necessary to win a referendum with a majority of votes in
the majority of states. If this happens, the debate should then
focus on the process of how candidates for president are
nominated, and I am impressed with a variation of the Irish model
and some of the ideas put forward by Professor Victor Prescott
that involve an active role by the Commonwealth parliament.
Certainly we have to devise some way of making the Australian
people involved in this process committed to this process and
with an investment in the process for their nation.
There are other
issues that need to be resolved. So far little attention has been
given to the selection and the role of a vice-president or person
who temporarily assumes the powers of the head of state during
his or her absence. At present, section 126 of the Constitution
states that the Queen may authorise the Governor-General to
appoint any person or any persons jointly or severally to his
deputy or deputies within any part of the Commonwealth. In
practice, state governors in order of seniority are usually
appointed to act as deputy during a Governor-General's absence.
What would be the process in a republic? Would it be the same or
would we choose a vice-president by appointment, through a
two-thirds majority or even by election. That is certainly
something that needs to be the considered.
Next week we will
consider the implications for the states. I strongly believe that
individual states should retain control of their own constitution
and will argue that federal governments or Commonwealth
parliaments should have no role in appointing or selecting state
governors. I do, however, believe that bipartisanship should be
entrenched in a republican system in choosing future governors of
South Australia.
I had hoped that this
Convention, held on the eve of both the centenary of Federation
and a new millennium, could have been given a wider brief. Last
year I wrote to the Prime Minister proposing that this Convention
should be the appropriate forum to consider statehood for the
Northern Territory, which was handed over to the Commonwealth by
South Australia in 1911 in exchange for a commitment to build an
Adelaide to Darwin rail link. We are still waiting.
Incorporating the new
state of the Northern Territory into an Australian republic would
be a timely and fitting act of nation building, and I look
forward to a special relationship between the two central states
of South Australia and the Northern Territory in the near future.
The year 2001 would also be an appropriate time to make
constitutional steps towards reconciliation and a recognition of
Australia as a multicultural nation.
Our brief during the
next two weeks may be limited, but it is vitally important. None
of us must act as spoilers, and we cannot afford gridlock or
stalemate. I came here with one mission: to support a republic
with an Australian head of state in a system where the people of
Australia are sovereign. It is their nation and they must have a
sense of ownership of both the process and the outcome. There are
a number of paths that we can choose, but with goodwill, an open
mind, an ear to the people and an eye to the future I am
convinced that all delegates can make an important and historic
contribution to the future of Australia.
CHAIRMAN- I
thank delegates for their attention at the Convention today.
Convention
adjourned at 6.14 p.m.
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Last updated: 21 October 2000
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