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Constitutional Convention: Introduction  The Constitutional Convention of February 1998

Federal Election October 2004:
Which Candidates Trust the People?

TRANSCRIPT OF PROCEEDINGS
Wednesday, 11 February 1998
Page 3

DEPUTY CHAIRMAN- Delegates who want to speak will be able to do so for only a few seconds because there was a resolution yesterday which said that there would be a total of 10 minutes for each report. Professor Winterton took up 9 minutes and 30 seconds and I have taken up a few seconds. You will have the opportunity to speak, I would think, if you are on the list.

 

Dr SHEIL- I have a general question of Professor Winterton. Early in his exposition he laid down a set of conditions for the situation where we got rid of the Crown and created a republic. I am wondering what Crown he is talking about. We cannot obviously abolish the Crown of Great Britain; therefore we must be going to abolish the Crown of Australia. We have our own Crown but as far as I am aware we have not built a Crown. We do not have one sitting in a glass case anywhere. There is none sitting around in Australia. It must be floating around like a wraith in the country. I agree that we have an Australian Crown, but how will you abolish it?

 

Professor WINTERTON- I remind you of the last sentence in point 4. It was included to deal with this problem. The idea was that if this eventuated there would be a provision in the Commonwealth Constitution to enable a state to set up its link with the Crown and thereby, in effect, have a state Crown. That was the purpose of the last sentence in No. 4.

 

Mr WADDY- Is Professor Winterton actually saying that the republicans propose to abolish the Crown of Australia and allow the establishment of six separate Crowns in each of the states of Queensland, New South Wales, Victoria, et cetera, if that is what the states want? Is that what he is actually saying?

 

Professor WINTERTON- Yes, as a theoretical possibility. It is not just me; this committee took that view- it is a theoretical possibility but we did not think it was a really practical possibility.

 

Mr WADDY- So the republicans want to abolish one crown and substitute six. I just want to get it clear.

 

DEPUTY CHAIRMAN- There is clearly intense interest in this. Yet you had a resolution yesterday which said that the total amount of time for each of these reports was 10 minutes. Mr McGarvie is very anxious to have five minutes. I know that there are a number of others who want to speak. I understand that the full time will not be taken up with the next group. We might then use that as a 10-minute period that we can spread around a bit. I would be disposed to give you the call if that were the case. I will ask Michael Lavarch to report. That will give us a bit of flexibility.

 

WORKING GROUP N

There should be simultaneous change across all States if a national majority agrees to change

Mr LAVARCH- Working Group N met briefly last night and this morning. They were not well attended meetings. Unfortunately, the late vote of last night threw the commitments of delegates somewhat out. Inasmuch as there was discussion at the group it was on the desirability of, were we to abolish the monarchy at a national level, abolishing it at the state level also. The group recognised that for a good number of years now it has been recognised that the Crown is divisible and that we do have effectively separate state monarchies as well as a national monarchy. It was also recognised that while it was constitutionally possible to have a national republic with one or more monarchist states, this would be at best anomalous. It would be inconsistent with the fundamental principle that the Australian peoples' allegiance should not be divided between a foreign monarchy and an Australian republic.

The real question is how the states' ties to the monarchy should be severed. There are two broad options. The first is a bill, which will be ultimately put by the Governor-General to the Australian people, to amend the Constitution. This could seek to remove the monarchy at both the national and the state levels. Alternatively, as Professor Winterton has outlined, the question of the states' ties to the monarchy could be left to individual states to determine.

It was recognised that both approaches obviously have advantages. The first would entirely remove the possibility of Australia becoming a republic at the federal level with one or more monarchical states. This would ensure that Australia becomes a republic at both the national and state levels at the same time. The second approach is consistent with the view that each state is, subject to the Australian Constitution, an independent body politic within the federation. Accordingly, a state's constitutional system is ordinarily a matter for the state to determine.

According to this view, constitutional change should not be forced on the people of a particular state by the people of other states approving a referendum under section 128. I note in this respect the finding of the Western Australian Constitutional Committee that most Western Australians feel that the form of government in Western Australia is for that state's people and that state's people alone to decide.

Ultimately, the group believed that nothing would particularly turn on the approach that is adopted. It is considered that it would be highly unlikely that an outcome would be achieved which would see separate state monarchies- for a number of reasons. First, the referendum itself would most likely, if passed at all, be passed in all of the states. As Premier Kennett indicated this morning, given a result of that magnitude, it seems unlikely that an individual state government or state parliament would then reject the will of the people of that state so expressed. There was also a further view expressed that it seemed unlikely that Her Majesty would accept the invitation to be the Queen or the monarch of an individual state against a backdrop where the nation as a whole had voted towards an Australian republic.

Finally, on the question of whether this course of action is legally open to us- that is, the use of section 128 to achieve a national outcome- or whether there is some legal bar through the operations of the provision of the Australia Act and any limitation within section 128 which may preclude there being a national simultaneous outcome, my view is that there is no such bar. It is based on a misinterpretation of the penultimate paragraph of section 128 of the Constitution, which provides:

 

No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law.

 

The reasoning appears to be saying that this mechanism then cannot be used to change state constitutions and that the phrase `the provisions of the Constitution in relation thereto' relates to any provisions of the Constitution in relation to a state. This view is not correct. `The provisions of the Constitution in relation thereto' are the provisions of the Commonwealth Constitution in relation to matters specifically mentioned in section 128. The special requirement does not extend to every proposal which would alter the Constitution of the state. I refer delegates to the final report of the Constitutional Commission of 1998 which canvassed that.

In the end, the group resolved not to present a formal report to the Convention, believing that the options would be canvassed in the other reports and, if delegates were of a view that this option should be taken up, it would be handled by way of amendment to other reports.

 

DEPUTY CHAIRMAN- Has your document been circulated?

 

Mr LAVARCH- No.

 

DEPUTY CHAIRMAN- We will now proceed to the report of Subgroup O, and the rapporteur is Mrs Annette Knight.

WORKING GROUP O

Any change should be simultaneous but should only occur if majorities in all States support change

REPORT

 

Mrs ANNETTE KNIGHT- My working party unanimously supported the proposition that any change should be simultaneous but should only occur if the majorities in all states support change. The recommendations are before you.

I propose to briefly present a broad overview of the working party's deliberations, before calling on my friend Dick McGarvie to address the legal ramifications of this proposal. We are cognisant of the fact that an argument can be advanced that, by accepting to federate, the states accepted the section 128 procedure for altering the Constitution and they should continue to abide by that commitment. We feel that there are other more important issues to consider and that there are additional complications here.

This may be a powerful argument, but we maintain that the question is not simply a legal one and the significance and nature of the change involved is such that by far the best outcome for Australia, if it is to become a republic, would be for all states to agree. If there were less than unanimous agreement, the move to a republic could be divisive. Such an important event should bring Australians together and not divide them. As Sir Francis Burt once observed, the legal changes that must be made must first be made in the hearts and minds of Australians.

The issue identified by our group to be of paramount importance is one based on an approach that is not only practical but symbolic of the cooperation and commitment of the states to support and reinforce the strength of the federal union. The wisdom of such an approach is evident at this very Convention, with delegates drawn from every state and territory. It clearly reflects the benefits of the partners in this great national enterprise working together to achieve the best end result. Such an approach has been a major reason for the success we have enjoyed since federation.

There is a strong feeling amongst some delegates, particularly those representing the youth of this country, that some of the strong views held by individuals and groups here have the potential to create an alienating influence. These same young people see the proposition that we are supporting as the catalyst to securing an outcome that reflects a truly cooperative approach. We share this view. At least four state premiers- Court, Kennett, Olson and Borbidge- have already signalled their support, cognisant of the fact that the success and stability of the Australian polity since federation has been grounded on the political legitimacy given to the federation by the popular vote in all the colonies and that, if there is to be a Commonwealth republic, it should be built on a foundation just as secure.

We urge your support for the proposition, because we believe that it is unlikely that a referendum on an Australian republic would succeed with less than the unanimous support from the states. It is worth remembering that, of the eight referendums that have been approved by the Australian people, only one was passed with less than a majority in every state. I will now hand over to my friend Dick McGarvie who will speak about the legal ramifications of the proposal.

 

Mr McGARVIE- I am about to make a speech which some will regard as the most unpopular speech of the Convention because it brings home the magnitude of the task of resolving this issue, whichever model is adopted.

The constitutional health of our democracy in federation requires the prompt, fair and effective resolution of the republic issue for the whole federation. The notion of resolving it only for the Commonwealth system, as though the states do not matter, would be a repudiation of our federation. Australian commonsense would never tolerate the issue being resolved in a way that could result in the Commonwealth and some states becoming republics and one or more states remaining monarchies. Nor would it tolerate a state being forced, against the will of a majority of its voters, to become a republic, even if that is legally feasible.

Effective resolution requires a process structured so as not to carry inherent bias against either side. Bias will be absent only if electors can make a simple choice between the present system and a republic model that will equally maintain our democracy- the proposed constitutional amendments will have to be valid beyond credible argument and the method of making them will have to preserve the cohesion of our federation. Unless all those features are present, many who favour becoming a republic would vote against the proposed change rather than put our democracy or federation at risk. Effective resolution is achievable, but only if we face up to the difficulties involved.

The requirement for a republic model equally safe for our democracy will be satisfied by adoption of the model I advance. In a state, the governor will become actual head of state, appointed or dismissed on the Premier's advice by a constitutional council of three automatically selected under the state's constitution from categories of former governors-general living in the state and former governors, lieutenant governors or supreme court judges of the state.

Whichever model is adopted, the most practical way of resolving the issue starts with a bill to make the constitutional changes for becoming a republic being passed by the Commonwealth parliament. It would then be submitted to referendum on the basis that, if a majority of Australian voters and a majority in every state approved the change and if it were also requested by every state parliament, the Commonwealth and each state would all become republics together. Unless there were all those approvals and requests, the Commonwealth and all states would remain monarchies.

The constitutional machinery for doing that would rely on the powers in section 128- the referendum provision in the Commonwealth Constitution- section 51(38) and section 15(1) and perhaps 15(3) of the Australia Act 1986. The bill to make constitutional changes would provide that it would only come into operation as an act and make those changes if all those approvals and requests were given.

In saying what I do, I draw much more on a lifetime's observation of referendum campaigns and outcomes than on knowledge of constitutional law. There is a practical need for that complex process, because there are highly credible constitutional lawyers who hold the opinion that the ordinary amendment provisions of the Commonwealth or the states could not validly make the changes from monarchy to republic.

It is argued that Australia could not become a republic without amending the preamble and the first eight sections of the Commonwealth of Australia Constitution Act because they make the monarchy an essential part of the Commonwealth. They argue that the referendum provision can only amend the Constitution set out under section 9 of the act and not the preamble or first eight sections. Others disagree. For present purposes, it is not necessary to determine what the High Court would decide. If it were sought to change to a republic merely by the referendum provision, the lawyers' opinion that invalidity would follow would carry immense weight in a referendum campaign where all flaws and possible flaws are exposed and stressed. Fearing what would happen to the whole system if the new head of state lacked the legitimacy and authority of constitutional validity, many voters, although favouring a republic, would vote no.

Professor Greg Craven drew attention to that in 1992. Credible lawyers have also expressed the opinion that section 7 of the Australia Act, which provides that the Queen's representative in each state shall be the governor, prevents the ordinary amendment provisions in state constitutions from changing the state to a republic. The practical way of changing the whole country to a republic, if a majority of voters in Australia and every state desire that, is by use of the amendment powers of section 15(1) of the Australia Act.

If the Commonwealth bill is approved by those majorities and requested or concurred in by each state parliament, it could, when it came into operation as an act, bring about amendments to the Commonwealth and state constitutions which would change them all simultaneously to republics. It could do that in a way that would override the need, under some state constitutions, to hold a state referendum. This method would overcome the risks of invalidity that have been mentioned and be constitutionally valid beyond all credible argument.

That process fully maintains the position and independence of each state because nothing could change to a republic unless the majority of that state's voters voted to have the Commonwealth and all states become republics. While requests from all state parliaments would give the Commonwealth act power to bring about the amendment of the state constitutions on that occasion, it would confer no future power on the Commonwealth parliament to amend state constitutions which it did not already have under the Commonwealth Constitution. Clearly, only cooperative federalism can bring about the effective resolution of the republic issue. It cannot be done without Commonwealth and state governments working together from the outset.

Even if a majority of a state's voters voted `yes' in a referendum, there would be no guarantee that its parliament would make the request for the Commonwealth act which would change Australia to a republic. The best that could be done would be to build up a community consensus and expectation that state parliaments would act in accordance with the verdict of its state voters. All this illustrates how important it is to start building consensus and for this Convention to adopt the republic model that is utterly and obviously safe for democracy.

 

WORKING GROUP P

The present arrangements for State links with the Crown and the defects of suggested alternatives

Sir James KILLEN- I move:

 

Resolution: that this convention recommends to the Federal Parliament that it extends an invitation to the State Parliaments to consider:

1. The constitutional implications upon their respective constitutions of any proposal that Australia should become a republic.

2. The consequences to the Federation of Australia if a State or States should decline to accept a republican status.

 

I say to my honourable and learned friend Richard McGarvie that I would not look upon that speech of his as being the most unpopular that has been delivered to this Convention. I would regard it with great respect as being one of the most cautionary and one of the most informed that has been delivered. I must confess that, with the manifest imperfections that have over the years been identified in my being by many in this chamber, I would seek to add to them today. I have been astounded- I remain astounded- at what I would describe as the arrogant assumption by many in this Convention that this is some simplistic affair. It is not.

I listened with interest to my friends learned in the law pushing the view that this Commonwealth parliament can decide the issue. I take leave to observe that in the Commonwealth's Constitution the words `state' and/or `states' are referred to on no fewer than 326 occasions. In relation to those who simply say, `We'll use the mechanism of 128 and suffocate the states,' I pause; I step back not in admiration but aghast at the arrogant assumption that that is possible.

This working group has put forward a resolution which is, in essence, an invitation. It is a recommendation to the parliament of the Commonwealth- not to the government, but to the parliament of the Commonwealth- to invite the state parliaments to give their opinion on what is proposed. For my part, I think there are significant alterations that have to be made. For example, I perceive some 43 sections of the Constitution that would have to be altered; some 90 references involving the Crown in one way or another. As a consequence of that, I again step back somewhat surprised at the rashness- to use a gentler word- that some people employ.

This is an invitation to ask the state parliaments for their view. There are two limbs to the invitation. One is simply to say, `If you have any fears about going to a republic, the impact on your constitutions, let us have them.' For example, I acknowledge the presence of an old family friend, the Western Australian Premier. The Western Australian Constitution by dint of section 73 provides that there must be an absolute majority of both houses of the Western Australian parliament voting to disturb the position of the Crown and a referendum. With my own state, an enlightened state-

Father JOHN FLEMING- Which is that?

 

Sir James KILLEN- I did not detect, Sir, that you were so poorly informed. With regard to a referendum I, with respect, would disagree with my honourable and learned friend Professor Winterton. I would have thought it pluperfect clear that in New South Wales and South Australia you would need a referendum to disturb this- and in Victoria, that emancipated state.

 

Mr RUXTON- We don't get a go there.

 

Sir James KILLEN- Oh, no. My honourable and well-informed friend, who brings that robustness of attitude that cheers us all up- Mr Ruxton. We are under obligation to you for your timely warnings from time to time.

In Victoria an absolute majority would be needed in both houses of the parliament. All this postulates that there is going to be immense difficulty. I want to say to the Attorney-General- that is, the Commonwealth Attorney-General- that I listened to his speech the other day with a great deal of interest and that, for a number of counts, I take leave to say this: I think it is a new-found luxury for ministers to be parading in public their private views. The only private views I think they can parade in public are what friends they will make and what horses they will back. If they seem to think that there is some stern message in that, then let them relive. You will not find that advice in any textbook but you will find it in the lessons of history.

The second thing I want to say to the Attorney-General is that he mentioned the word `federation' once in his speech and that was in an historical context- that the referendums since Federation would not encourage much. He did not mention once the Australia Act. I am surprised that the federal Attorney-General- the first law officer of the Crown in the Commonwealth- would not have adverted to the difficulties posed by the Australia Act and that he did not mention the difficulties posed by the existence of the federation. Therefore, I would invite him to present to this Convention his opinion on the impact on the federation of turning into a republic and also on the implications of the Australia Act.

I assure my honourable and learned friend that there would have been no Attorney-General who ever wandered around the corridors of this building who gave an opinion that would be subjected to such meticulous examination. So his labours would not be in vain. I hope he will respond to that and let us have his opinion, because I think this Convention is entitled to it. He was diffident, he said, as shadow Attorney-General and as Attorney-General, to offer his private views. Well, this is a simple request for him to give us his public views on the implications for and the impact on the federation and the Australia Act.

I turn to the Australia Act because this is vital as far as the states are concerned. One could offer the view that, when it was passed in 1986, it was passed peradventure. I have some difficulty to this day believing that those who framed it could have been sharply conscious of the stern political truths that have existed in this country in this century. There must be six state parliaments- this is one limb of approach- to disturb the Australia Act. Six parliaments must make a request to the Commonwealth parliament. Six parliaments, I observed, in the plenary session a few days ago. That encourages me in my racing activities that I will get a winner occasionally. To get state parliaments to agree to that? Well, so be it; it may be possible.

I confess that I have no admiration for the assumption that the Commonwealth parliament can say to the state parliaments, `You will pass this legislation, consider this legislation, when we tell you to do it.' That is to be found in the Attorney-General's speech to this House.

When the Australia Act went through the parliament in the Senate- we used to refer to it in this place so reverently as `that other place'- I would say the speech of the then minister, a former Attorney-General, my friend the honourable and learned gentleman, Gareth Evans, occupied in the committee stages, looking at the facility with which he speaks, some two or three minutes at the outside. He used the expression `I guess' on two occasions. I have never known such tentativeness to be resident in any presentation on his part. But my friend did not advert to the implication as far as the states are concerned. The view is available, and I suggest it is a respectable one, that the provisions of the Australia Act, in a very real sense, doubly entrench the requirements that already exist in the manner and form of the constitution of four states that, in my respectful opinion, can be identified. They are some of the problems. I come back to where I began. I am indebted to my honourable and learned friend Richard McGarvie for identifying some of them. This is a request to the states: please give us your opinion. I am sure that all state supporters will support this motion with a great deal of enthusiasm.

 

DEPUTY CHAIRMAN- Firstly, before I call the Premier of Western Australia, there are three proxies that I should notify. One is from Digger James nominating Damien Freeman for tonight from 6 p.m.; Christine Ferguson nominating Professor Colin Howard for this morning; and Don Chipp nominating Alan Fitzgerald from 6 p.m.

Secondly, the arrangement for lunch has been changed slightly to take account of the continuous sitting. Lunch will be available to delegates between 1 p.m. and 2.30 p.m. Delegates are free to move to the dining room at any time during that period. But, of course, we will continue sitting throughout. I hope that we will be able to maintain reasonable numbers in the chamber through the lunchtime session. We do not have a formal quorum, but I would like to think that the attendance is much higher than it generally is during the lunchtime sessions that we have in the Commonwealth parliament and as a courtesy to those speaking. Also, the Chairman and I want to thank the caterers for their flexibility.

The debate on the subject `How should the links to the Crown at state level be handled?' which, of course, involves consideration of the four reports we have had, begins now and will continue until 1 o'clock. Speakers have five minutes. I now call the Hon. Richard Court.

 

Mr COURT- I hope the five-minute speaking time is not at all symbolic of the downgrading of the states' perspective in relation to this matter. The states' position on this issue of change to the Constitution is fundamental. We should never forget that it was the states that came together in the first place to form our Federation. If all of the states are not supporting fundamental change, it simply will not happen.

I heard Mr Turnbull this morning saying on radio that it was inconceivable that the states would not fall into line if there was to be a republic on the need to change each of the states, that they would be able to leave the timing of that to their own choice. I say thank you for those words, but the states will make those decisions on their own constitutions. They certainly should not be taken for granted.

I remind the delegates to this Convention that Western Australia is the only state in Australia that has never been a part of New South Wales. I just make the point that we will not have any intention of sheepishly following any particular dictates that come out of that state.

Western Australians have demonstrated they have a great interest in the Constitution. Just prior to Christmas we opened a constitutional centre- the first one in this country. Since then we have had 12,000 people go through that centre. At the completion of this Convention, we will be having six public forums in the coming months around the state, and already very strong interest is being expressed by people wanting to attend those particular forums. That is an indication that we take this issue very seriously.

If there is going to be change, it is important that the change does occur in the states at around that time. I accept that with two states, including ourselves, needing a referendum, it might not be possible for it all to happen simultaneously. It gets back to this basic question that there must be broad agreement with the states if we are to have the change.

The Constitution Act of Western Australia must be amended to provide for a suitable republican model for the continuation of the office of Governor. That is a matter which must go to the parliament of Western Australia and also the people of Western Australia must vote in a referendum as alteration to the office of Governor requires such endorsement.

Each state, as has been outlined this morning, has its own process for change. State parliaments need to work together to effect any necessary changes to the Australia acts if we are to achieve this change. It would be totally wrong for a Commonwealth referendum under section 128 to attempt to simultaneously alter the constitutions of the states, overriding the parliamentary and democratic processes of the states. This would set a precedent so that the possibility arises of voters in other states imposing fundamental change upon the Western Australian Constitution even though a majority of Western Australians may vote against it.

A particular model that may be appropriate for the appointment of a Commonwealth head of state also may not necessarily be the best means of appointing a state governor. Further to our insistence that any republican model put in a section 128 referendum apply only to the Commonwealth Constitution, we would strongly urge that the best way for the states to move forward with the Commonwealth is for that referendum to receive a majority of votes in all of the states. I think that issue has been broadly supported at this Convention.

In a practical sense, I believe that this does not set up an unrealistic hurdle. As I stated earlier, it is more likely that any referendum, if successful, will gain a majority in every jurisdiction, as occurred in 1966 and 1977. What we are saying is that this historic change needs to be supported by majorities in each state to give it absolute legitimacy and to create a sense of national unity. On a practical level, yes, majorities in each state give their respective parliaments clear signals to move to consequential change to a practical model that suits their needs. It is the surest and best way to close off the possibility that any state could choose to retain links with the Crown if there was support by majorities in all of those states. I reject any suggestion that this inclusive majority requirement that I am seeking is in any way putting a spoke in the wheels.

Western Australians, as I mentioned, take a deep interest in their federal Constitution. Time and time again they have used their votes to protect it from centralist meddling. I would like to conclude my comments by quoting from the report of the Western Australian Constitutional Committee which met a couple of years ago. It says:

 

As far as national identity is concerned, the committee was greatly impressed on listening to the views of the people of all ages and backgrounds throughout Western Australia by the extent to which people in this state are conscious of being both Australians and Western Australians. They have a dual allegiance that reveals an intuitive grasp of the principles of federalism and commitment to them.

The strong support shown for retaining the federal system is an indication of what national identity means to many Western Australians. For most people who responded to the committee, being Western Australian is an essential aspect of being Australian. To force them to make a choice between the two would be counterproductive, especially if it were for the sake of national identity.

As discussed, broad-based support across the states has historically been required for national referendums to be passed. Heavy-handedness on the part of the Commonwealth with respect to state Constitutions would probably prove fatal to any republican proposal.

 

I think that fairly sums up my views- that is, the challenge for this Convention is to come up with a proposal that does have that strong support in all of the states and then I believe that the issue of how each state handles its own Constitution will be one on which we will be able to relatively easily agree on change taking place.

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