The Foundation for National Renewal
  Working for a better Australia through constitutional reform

The Constitutional Convention of February 1998

A missed opportunity for much-needed reform.

TRANSCRIPT OF PROCEEDINGS
Wednesday, 11 February 1998
Page 4

Mr RANN- The Commonwealth of Australia, whether it be under a constitutional monarchy or under a republic, will have one central unifying continuum as we move into a new century: that we are a democratic and representative federal system that includes state and territory parliaments and governments as well as the Commonwealth parliament and government. It is a system that was devised 100 years ago in a constitution that recognised the geographic reality of Australia: that we are a continent, not just a country, with different regions that have evolved differently as states and territories- and, Richard, South Australia was never part of New South Wales.

It is vitally important that any move to a republic does not alter the federal balance of the Constitution in respect of the powers and responsibilities of federal, state and territory governments. To do so would be political as well as constitutional folly. Above all, each state must be the master of its own constitution.

I am a republican but I want to stress that my support is for a republican system and constitution that enshrines the sovereignty of the states in a federation. There is bipartisan agreement in South Australia that, in a republic, it would still be a necessity for each state to have its own head of state. On Monday, I argued against Australia's head of state being called Governor-General under a republican system. I did so because the very term `Governor-General' by definition means representative of the Crown, and only constitutional monarchies in the Commonwealth of Nations have Governors-General.

But the same is not true of the term `governor', which is used in both republican nations and constitutional monarchies to describe the heads of state in regions, provinces or states. That is why I strongly support the retention of the title `governor' to be used at state level if Australians vote to become a republic. India, the world's largest democracy and a republic within the Commonwealth, has a President as national head of state, a powerful Prime Minister as head of government and Governors as head of state in each of its states. Similar systems with national presidents and state governors occur in non-Commonwealth republics such as the United States, Argentina, Brazil and many other nations. So I will support the retention of the title `state governor'.

If a majority of Australians and a majority of states do support a republic, it is vitally important that all states take as soon as possible the appropriate, consequential, constitutional and legislative steps to ensure they republicanise their institutions. It would be ludicrous, in my view, for any state to try to go it alone- to try to remain as some kind of monarchical island within a broader Australian republic. There must be constitutional consistency within our Federation, and there will be a clear need for the national council of Attorneys-General to get cracking soon after this Convention to both explore options for change and make the necessary preparations to ensure constitutional consistency.

But we want a national model, not a Canberra model. Constitutional consistency does not mean prohibiting regional variations within the Federation. After all, there are considerable constitutional differences between the states already. South Australia has one vote, one value. Western Australia does not. Queensland has a unicameral parliamentary system. Tasmania has the Hare-Clark voting system, which is yet to catch on internationally. Some states, such as Queensland and Western Australia, require a referendum to change their constitutions. Others require a majority in both houses of state parliament.

What I am trying to emphasise is that, under the umbrella of national constitutional consistency, there can also be variations at the state level. Some states might opt under a republic to choose their governor or state president in different ways. Some might opt for election or appointment by the Premier, appointment by a two-thirds majority and so on. But that is for each state to decide following their own deliberations in state parliaments or in state-based constitutional conventions and following public debate.

Certainly, we should not contemplate state governors being appointed by the national president or by the Commonwealth because that would alter the balance of federation. In South Australia, the move to a republic would necessitate a swag of amendments, more than 30, to the South Australian Constitution Act, amendments to the Australia Act and around 350 other South Australian statutes- difficult, complex but quite achievable in an omnibus enabling bill. In South Australia, such an approach would be embraced, I believe, in a bipartisan way and there would be no impediment to achieving consequential changes at the state level before the target date of 1 January 2001.

Fortunately, the South Australian Constitution is much broader in scope and significantly more flexible than the Commonwealth Constitution. Apart from the limitations imposed on state laws by the Commonwealth constitutions, it is much easier to amend the South Australian Constitution by subsequent acts of the state parliament.

In closing, there has, of course, been some debate- and rightly so- about the importance of the preambles to the Constitution as a statement of Australian values. Certainly, this is an area where the states could take the lead and set an example by adopting or changing their own preambles. The states have much in common but different cultures. The preambles, as well as the constitutions, can reflect those different state cultures and different state values.

In South Australia, the state which first gave women the vote and the right to stand for parliament, I would like the South Australian preamble to our Constitution to include a recognition of equality under the law for men and women and a commitment to equal opportunity. South Australia was also the first state in a bipartisan way to legislate for Aboriginal land rights with 20 per cent of South Australia now under Aboriginal ownership. I would like the South Australian preamble to include a clear recognition of the original inhabitants, the indigenous people of South Australia, and also a definition and recognition of multiculturalism and the contribution made by waves of migrants to building and advancing our state. But these matters are for South Australia and each state to decide.

Mr STONE- The Northern Territory is not a state, although we have aspirations in that direction and we hope that we might one day rightfully take our place in the Commonwealth of this great nation of ours. In that context, we do not count when it comes to the referendum, only in the sense of a majority of the people not as a majority of the states. I am sure that our colleagues in the constitutional monarchist ranks would be very pleased to hear that since not a single constitutional monarchist delegate was elected from the Northern Territory.

DELEGATES- Shame, shame!

Mr STONE- But, indeed, not a single representative from the ARM was represented in those who were ultimately elected either. They were elected as independent republicans. I say as an aside that it is a shame that there has been some discounting of the view of those who support the direct election. They are simply representing the views of the people who sent them to this Convention in the first place. For them to have done anything less would have been unacceptable to the people who voted for them.

I say to delegates that you could be excused for believing that there was a degree of paranoia or parochialism about the position that might be put by the states from time to time. Let me read you something:

We know that the tendency is always to the centre and the central authority constitutes a vortex which draws power to itself. Therefore, all the buttresses and all the ties should be the other way to enable the states to withstand the destruction of their powers by such absorption. Government, at a central and distant point, can never be governed by the people and may be just as crushing as a tyranny under republic or Commonwealth forms as under the absolute monarchy.

That was said and indeed later written by Sir John Cockburn in the South Australian parliament in 1901. It is as true today as it was then. The states do have an interest in this Convention. The states, after all, were those that gave birth to the Commonwealth of the federation. So there is a sense of ownership. Often that is forgotten. People form the view that it was the reverse, that the federation of the Commonwealth created the states. But that is quite the contrary.

The states are important stakeholders in these deliberations. But, equally, the states must not become, unwittingly or otherwise, an obstacle to the republic, because I believe that the Australian people will be very unforgiving. I take the view that there should be broad agreement and that will give the republic the legitimacy that it needs. If it does not achieve that, it all will have been for little. The thought that a state would go it alone would, in my view, be absolutely untenable. We are either in this together as a nation or not at all. That is an important consideration in the final wash-up of our deliberations.

Finally, to comment on the remarks of the Hon. Richard McGarvie and of my old friend Sir James, they are interesting points of view but they tend to obscure some of the real arguments in all of this. I hope those sorts of arguments will not be used in the public arena to effectively scare Australians into believing that it is all too hard and too difficult, because it is not. It is not as difficult as it is being presented by some. As I have said, the states do have a real, legitimate interest in all of this. It was the states that created the federation and the Commonwealth, and it will be the states that play an important part in deciding whether we become a republic or not.

Ms BISHOP- I speak as a proud Australian, born a fifth generation South Australian and educated there, my life shaped and my views influenced by living and working in Western Australia. Our Australian states are independent entities under our federal system, so specified in section 106 of the Constitution. Altering the constitutional status of Australia will require a number of complex steps to be taken. We cannot, for example, overlook the fact that the legal and constitutional vehicle that gave expression to the desire of a majority of people in the various Australian colonies is the Commonwealth of Australia Constitution Act 1900, United Kingdom- an act of the then Imperial Parliament.

I turn to the implications for the states. While section 109 of the Constitution allows Commonwealth law to override state legislation in the event of inconsistency, there has never been a successful attempt by the Commonwealth to alter state constitutions en bloc through the referendum power of section 128. There is some doubt as to whether section 128 does have the ability to rewrite state constitutions, all of them predating 1901.

This is far more than a legal question. Australia is a federalist democracy. Our democracy depends upon the dispersal of power that state parliaments inherently provide as a counterweight to the federal parliament. The balance of our federal system would be gravely altered if a precedent were set whereby state constitutions were amended through section 128- or, put another way, whereby voters in New South Wales could override the electors of Western Australia to impose some kind of major change to the Constitution of Western Australia.

Changing state constitutions to reflect a preferred republican model in the event of a successful move to a republic at Commonwealth level must be an exercise in federalist cooperation, not in centralist coercion. It seems generally agreed by all shades of opinion that it would be divisive and undesirable for any state to try to continue as a monarchy when Australians have voted for a republic. The best way to avoid this would be to ensure that so fundamental a change be carried with the concurrence of a majority of voters in all states. Thus, there would be a clear mandate for the parliaments of the states to cooperate in necessary amendments to the Australia acts and to change their own constitutions by legislation or by referenda as the case may be.

The Western Australian Constitutional Committee in its 1995 report made a firm recommendation that a republic should not proceed unless the majority of voters in all states favoured it. This was not a means of raising the hurdle to bring about the defeat of a referendum by giving one state the power of veto. Rather, it is a means whereby the move to a republic be an inclusive one, where there would be strong popular support for the republican model, giving it an inherent legitimacy. We take comfort that in a practical sense the eight referenda that have been carried received the support of a majority of voters in all states. The only exception was the 1910 referendum on state debts, when New South Wales was the recalcitrant state. So history suggests that the electors of any one state are unlikely to stand out against a consensual national tide.

To make sure that there is such a spirit as we go into a referendum, it is absolutely essential that this Convention recognises: that the state parliaments and their electors are the writers of their own constitutions; that, in the event of a successful referendum for a republic, the states can be trusted to take action by legislation or referenda to amend their constitutions to institute a republican form of government; that the actual form of republican governments at state level are the business of the individual states and territories.

For example, the Western Australian Constitutional Committee suggested that, if the monarchy were removed from the state Constitution, we should retain a local head of state with the same standing and possibly the same title as the Governor. The position of Governor under the Western Australian constitution act can only be altered by a referendum of the electors of Western Australia. These electors have the inalienable right to decide for themselves what kind of republican constitution we will have at state level.

The precondition for a truly just republic is respect for the constitutions of the states and the confidence that the states will replace the Crown in a manner that they see fit if Australians vote for a republic via referendum under section 128. It will be so much safer and smoother if that referendum, should it be successful, succeeds in all jurisdictions.

DEPUTY CHAIRMAN- I call Mr Tom Bradley. I should explain: as Chaucer would have called him, the very parfait knight Sir James Killen has taken an uncharacteristic vow of silence and ceded his place to Mr Bradley.

Sir JAMES KILLEN- I'm practising, Mr Deputy Chairman.

Mr BRADLEY- Fellow delegates, ladies and gentlemen: the argument put so cogently here this morning by Sir Richard McGarvie is a compelling argument, and there seems to be no alternative to it. If one turns to the Australia Act, section 7(1) establishes the positions of the state governors. Why would such a matter be put into the Australia Act? For the very simple reason that the independence of the states within this Federation depends crucially upon the independence of the state governors. The moment that the state governors suffer the fate of being appointed by an Australian president, the independence of the states is gone.

Section 15(1), as Sir Richard McGarvie pointed out, prevents any alteration to the Australia acts, unless the parliaments of all of the states of Australia agree to request it. The only exception to that is if the people of Australia, in a referendum under section 128 of the Constitution, agree to make such a change.

If one turns to the referendum provision in our Constitution, it makes it abundantly clear that an alteration to the Constitution which affects the rights of the states or particular states under that Constitution must be approved by a majority of voters in each of those states. Section 101 of the Constitution establishes the status of the state constitutions. They cannot be amended by any simple referendum under section 128; they can only be amended by a referendum which is carried in a majority of each of the states whose constitutions are to be altered. The arrogant centralist assumption of the Australian Republican Movement and its patron saint Paul Keating that, somehow or other, the Australian Constitution and the federal balance could be tampered with through a decision of the Commonwealth government alone has been shown to be meaningless.

The view that the rest of Australia is simply an outer suburb of Sydney is a view that must be repudiated. The expression that has been used here by republican delegates in referring to the states of Queensland, Western Australia, South Australia and Tasmania as merely `the outlying states' underscores the arrogant attitude which seems to assume that a fundamental shift in the balance of power under our Constitution can be achieved without reference to the people of those states.

The assumption seems to be that somehow the states are the wayward children of the Commonwealth. Rather, it is the reverse: they are either the older, wiser sisters of the Commonwealth or, indeed, they are the parents. It was the states that agreed in the compact which is the Constitution to create the Commonwealth, and not the reverse. If that compact, which was to unite in one indissoluble Commonwealth under the Crown, is to be dissolved, it seems an injustice that, unless all the states agree, any state which does not wish to subject itself to the rule of a Canberra president- whether appointed by a majority of voters in the populous states or by their representatives in the federal parliament or by Mr McGarvie's gang of three- should not in justice be permitted to withdraw from the Commonwealth. I ask the republicans to consider seriously whether they would propose to continue to impose their will on any state of Australia that resisted the moves they propose.

The people of my state think that Queensland itself is too big often to be ruled from Brisbane. But I am certain that the people of all the states of Australia would agree that Australia as a whole is too large to be ruled from a centralised power in Canberra alone. The decisions about these grave matters which affect the whole of the nation must be decisions of the whole of the nation. In the absence of agreement from a majority of electors in each of the states and each of the state parliaments, the changes proposed here by the republican movement cannot be carried further than the dinner parties of the eastern suburbs of Sydney.

Mr BEATTIE- We should get one thing clear: I do not regard Queensland as one of the outlying states; I regard it as the centre of the universe. I grew up in a small country town in North Queensland called Atherton, which has 3,500 people and is about an hour's drive from Cairns. When I was a kid, we talked about southerners. This was just after the war and we were getting over the Brisbane Line. We talked about southerners and all those people in Townsville. I mention that, along with the fact that when I am at the Brisbane airport I am closer to Jeff Kennett in Melbourne than I am to Cairns, because I want to ram home the fact that the tyranny of distance and the attitude of Queenslanders, and indeed a number of other states, is such that we will want to appropriately determine what republican model exists in Queensland. It is that simple. We will make the decision at a state referendum about the model to apply in Queensland.

There are arguments from time to time that Australia is overgoverned and, further, that we should abolish one tier of government. The tier most frequently suggested, unfortunately, is the states. During my long political involvement, I have seen a number of power plays by the power brokers from Sydney and Melbourne, all designed to basically exclude the other states. I do not like it. That is why I am a strong supporter of the states and I am a strong supporter of the current powers of the states. In other words, in my view, the states are not only here to stay; they are an essential ingredient for equity and fairness in the development of Australia as a complete nation. That is why they are so important. To anyone who wants to use this debate over constitutional reform as a means of trying to remove the states from the Federation, my advice is that the states should never and will never be removed from the structure of government in this country. I even say that when Brisbane in 2015 is going to be bigger than Melbourne. I notice that Jeff Kennett has left.

The federal referendum for the Australian republic is only part of the republican story. The other part lies with the states. I see the outcome as very simply this: there has to be a national referendum on the issue determined by this Convention. Australians will vote in a majority of states and by a majority, hopefully, for some form of republic. Once that process is completed, in my view the states should consider the issue. Because of the Queensland legislation and a range of other matters, in Queensland there will be a state referendum.

In my view, I do not see any difficulty in having different models in the different states. I do not want that. I would prefer to see a republican model nationally and some uniformity. But, if there is diversity, so what? Let the Queenslanders make their decisions, let the Western Australians do the same. There is nothing wrong with a bit of diversity. As Mike Rann said before, in Queensland we have the good commonsense to have only one house of parliament. Judging from what I see elsewhere, that is a darned big improvement. And it is not only the parliamentary structure that is different there, it is the method of voting and a range of other issues. So there is nothing wrong with diversity.

I am simply saying this: under the Constitution, there are a couple of choices. I heard what Sir Richard McGarvie said before, and understand that the Commonwealth Attorney-General's Department has provided legal advice that says there are two alternatives. We can have a section 128 referendum which would be binding on all. I do not accept that we should do that. You have already heard my view that there should be a state referendum in my state to determine this issue. I do not believe that there should be a federal position imposed on the states. While that can apply section 128 for the Commonwealth position, it should not apply to bind the states. But I understand that the legal advice from the Commonwealth Attorney-General's Department in relation to the states says that they can change by their own referendum. They can have some diversity, should they so wish.

I understand the argument that is being put forward here by some. But my view is: let Queenslanders decide what model they will have. Hopefully, it will be a republican model. I will be the first person out there arguing for it. But, if they choose to have a different model, my view is: so be it. We are a big enough nation and a big enough country to be able to cope with that. In terms of some of the details, I do not have a lot of time to go through them.

DEPUTY CHAIRMAN- You have no time.

Mr BEATTIE- I have no time. I conclude by saying that I am happy to see the retention of the position of governor. There will obviously need to be consultation with the people of the state about how that person is appointed, but I see no reason why we cannot retain a governor who will be the representative of the people.

Mr COWAN- The question before the chair is how should links to the Crown at state level be handled. There is a very short answer: by the states. If Australia is to become a republic, there will be a myriad number of state and Commonwealth acts which will need to be changed. However, the main vehicles for change will be the Commonwealth constitutions act, the Australia acts and state constitution acts. I will deal with those three main vehicles, putting a Western Australian perspective.

The first is the Commonwealth constitution act. Any change to that act should not undermine the powers, the roles or the responsibilities of the states nor threaten the very existence of the states or, indeed, of the federation. I was very dismayed to hear some of my state parliamentary colleagues advocate support for the use of a referendum under section 128 of the Commonwealth Constitution to amend state constitutions. If that were attempted in Western Australia, I assure you that it would be vigorously opposed and it would guarantee failure.

I came here as one who was very anxious to preserve the status quo but charged with the responsibility of delivering a model which could be put to the Australian people at a referendum. In that sense, we need to give some consideration to whether or not that model will succeed or not. To seek to amend state constitutions by the use of a section 128 referendum would certainly be regarded by Western Australians as something that should be strongly opposed.

I will turn to the Australia acts. As claimed by the Hon. Richard Court, the Premier of Western Australian and by the Hon. Richard McGarvie and Sir James Killen, through their provisions to allow the states to influence any proposed moves towards a republic these acts offer the greatest protection to the states, because the states are required to support any particular proposal to amend the Australia acts. Again, these acts will be very important, because the approval of all the states will be required. Once more, if in any referendum there is a matter which includes the states- and some people have advocated this- and the capacity to overturn something which might exist within the Australia acts, you will find that the issue of states rights will arise. Please be assured that any referendum on a republic is doomed to failure if it is submerged by the issue of state rights.

The third part of change will be the change to the Western Australian Constitution. In Western Australia, any amendment to our constitution which impacts upon the role of Governor or the upper house requires not only an absolute majority of both houses of parliament but a referendum. In that sense, if the state is in any way antagonised and it believes that its place in the Federation or the Federation itself is threatened, or there is to be a greater move to centralism because of a move towards a republic, naturally Western Australia will be one of those states which oppose the move to a republic.

In conclusion, one of the greatest attributes of the Westminster system- perhaps I can add that it is sometimes its most frustrating quality, especially for government- is that it ensures the preservation of the status quo. Advocates of change must convince a majority of the need for change. That is, as my parliamentary colleagues can tell you, quite often a long and tortuous process, because the support for change must be demonstrated time and again.

It would appear that the Commonwealth Constitution, the Australia acts and the state constitutions in each of the respective states have provided significant checks and balances if this country does choose to become a republic. None of these are insurmountable. However, any change will succeed only if there is overwhelming support of the people and their parliamentary representatives in all states. That, in my view, is entirely appropriate.

Mr MYERS- I came to this Convention with an open mind. I still very much have an open mind. One of the main considerations that will play a part in whether or not I support a move to a republic will be the role that the states are to play in the process. This question really goes beyond whether or not Australia should become a republic. It moves into how Australia should become a republic. The real issue here, the real point of the matter, is that Australia will not become a republic unless this matter is resolved fully.

To resolve it fully I believe that a majority of people in all the states need to be able to express their support for a republic. As I look around this room I see many fellow Queenslanders. I am sure that, like me, they are proud of the fact that they come from the `sunshine state'. I was brought up on sun, rugby league and Golden Circle pineapples. As a Queenslander, I am far too proud to admit that AFL is anything but a girls' game. I am sure that there are many other people around the country who feel the same.

Whenever we travel overseas, we are Australians. When we travel in this country, we are from our respective states. Any referendum that seeks to impose its will upon people in a particular state will fail. From a Queensland point of view, I can assure you all that any pressure to force Queenslanders to conform to the rest of this country will not get off the ground. When considering any republic model and when in particular considering the role of the states in this issue, I urge you all to vote in favour of cooperative federalism. Federalism is what has made this country the great place that it is. Federalism is what has made our parliament so effective. At the end of the day, do not ignore the states.

Professor SLOAN- Our working group and the other working groups were asked to address how the links to the Crown at the state level should be handled. I must say that I am in complete agreement with Peter Beattie and Hendy Cowan in saying that the answer to this question is simple: allow the states themselves to decide.

The states, of course, are separate constitutional monarchies from the Commonwealth, with their own vice-regal heads of state. They have their own distinct constitutions, some of which can only be changed by referendum of their people. The vast majority of state governors have served their states with enthusiasm, energy and dignity; and we, as a group, have been privileged this week and last to share the company of some former state governors in this chamber.

I am now a devoted federalist. It was not always so. Dame Leonie, some gratuitous autobiography: I was born and raised in Melbourne. The notion that Australia is governed by and for the benefit of Melburnians and Sydneysiders caused little discomfort to me in my youth. But, having lived in South Australia for nearly 20 years, I now clearly see the benefits of federalism.

We are told that we are overgoverned. Frankly, I would prefer to be overgoverned by democratically elected politicians than to be undergoverned. Democracy may be messy- a bit like markets, Chairman- but so be it.

Federalism has the virtues of creating some proximity between the voters and the politicians, as well as establishing benchmarks for good government across the states. The benefits of competitive, as well as cooperative, federalism have restricted- although not totally restrained- irresponsible actions by state governments.

So what about the question at hand? Leaving aside some legal technicalities- and, speaking as an economist, I think economics looks quite simple compared to constitutional law- which appear to be numerous and ambiguous, I can see no harm in a combination of a Commonwealth of Australia which is a republic, some states which are also republics and some states which remain constitutional monarchies. To be sure, this would be messy; but if the republican model is seen to offer the advantages argued by so many, then over time a streamlined system of a Commonwealth republic and republican states is likely to emerge.

Are there any practical problems with such a mixed model? Would the Queen seek to throw in the towel, so to speak? The reality is that, at most, two states would remain constitutional monarchies even in the short term, given that a majority of states would have passed the federal referendum bringing the Commonwealth republic about. It seems unlikely, in the short term, that the Queen would throw in the towel for the states remaining constitutional monarchies.

Let me finish by saying that, as someone from the central state of Australia as opposed to someone from an outlying state, my advice to this Convention is to leave the balance of power between the states and the Commonwealth as it is. Let each state retain control of its own constitution and allow each state to decide if, when and how to convert to being a republic.

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Last updated: 21 October 2000