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  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 6

CHAIRMAN- I urge all convenors of the working parties to examine their reports. Having examined them, I believe that there is only that resolution to be proposed by the Hon. Sir James Killen for us to consider this afternoon. Each of the other working groups could look at their reports and, if they wish to move a resolution, I suggest that those resolutions be submitted to the secretariat. I call on the Hon. Denver Beanland.

Mr BEANLAND- It is day 8 and, at long last, we have arrived at what is a very crucial issue in this whole debate- that involving the sovereign states and the federation which makes up this country. Of course, not only do we have the sovereign states, the compact, that make up the federation; we have the independent legislatures within each of those states and we have the Governor who is responsible to that state, not to the Commonwealth. In some of the debates we hear around this chamber, we could be excused for thinking that there is some relationship between the Governor and Governors-General and that there is no independence.

At the end of the day, it is terribly important that the states retain the position of Governor- there is a range of issues and arrangements that must be looked at in relation to that- and that those Governors should retain the independence of the Commonwealth which they currently have. The last thing we would want to see is some arrangement- I am sure the state of Queensland would and I would be totally opposed to it- where the state Governor was in some way appointed by a federal president. What a disaster that would be. That would lead to the destruction of the sovereign states as we know it.

There are three or four issues that must be taken into account in this whole matter: firstly, the arrangements of the Governor and the Crown; secondly, we have the Australia Act and the importance of that; and, thirdly, we have those sections that are entrenched. The role of the state Governors is well known. Whether we should go to a republican form of government or mirror the Commonwealth arrangements for the president is a matter for each state and the people of each state. The role of the state Governors must remain. The appointment, dismissal and powers are matters for the people of the states and not something that would involve the Commonwealth.

As I have already indicated, I believe it is essential to retain the name of Governor. Many republics have Governors, including places such as India, not to mention the United States of America, which are two different systems. In addition, I believe it is one of the reasons why we must have the approval of all the states in any changes that take place. I say all the states, because it is not good enough to have four of the six states voting in favour of a republic. If we are going to go forward with cooperation and goodwill to a republican form, it is essential that the governments- not only federally but of all the states- have the moral authority of the people of their state. Therefore, it is essential to have all six states voting in favour.

That also relates to the entrenchment provisions. Queensland- and Western Australia- has a number of important entrenchment provisions in relation to the Crown and the role of Governor. Those arrangements are entrenched within the state constitution. It would be a dreadful situation if we got to the stage where Queensland did not vote in favour of a republic, yet the people of Queensland were expected to make arrangements to the state constitution and then turned around and refused to do so.

There is no point in people coming forward and saying, `Section 128 of the Commonwealth constitution will override the states.' I tell you it will not override the states and will certainly not override the moral authority and the people of those states, no matter what state it is- whether it is Queensland, Western Australia, Tasmania, New South Wales or whatever. It is terribly important, therefore, that we get the moral authority of all the states if this proposal is going forward. Whilst Queensland and Western Australia have more sections entrenched and others do not, nevertheless, the moral authority is still essential.

The third matter is that of the Australia Act. I will not go through all the details, because others have, except to say this: it is quite clear that it requires certain authorities and approvals of state parliaments. If it does not get that, it will end up in the courts- no doubt, in the High Court. One could well see, halfway through changing to a republic, a huge legal battle going on in the High Court of Australia.

What happens if the view of the state which is bringing on this challenge is upheld? The whole republican issue will start to unravel. What a laughing stock this country will become. Therefore, again, I return to the issue. It is terribly important that we have the moral authority of all the states in support of any change that goes forward to ensure that the people of those states are supportive of that change.

Ms THOMPSON- Mr Chairman, delegates, ladies and gentlemen, the states are the rocks upon which our Federation was built. We must remember this. We Western Australians feel strongly about this, and we know that we are here to speak and act in the interests of Western Australians and Australians. Mr Bradley, let me tell you that republicanism is alive and well in Western Australia, despite the fact that I have never been to a dinner party in the eastern suburbs of Sydney.

Some of my Western Australian colleagues forget who elected them. Let me remind them, although I note that I do so in their absence. Western Australians voted 42 per cent for the Australian Republican Movement and 30 per cent for my colleagues from the monarchists. In fact, four per cent of Western Australians voted for a candidate who did not know what he wanted before they voted for a direct election.

We have one Western Australian delegate who walks around this chamber and cries, `Compromise!' That means that he gets his way and only his way. This is a delegate who achieved a mere three per cent of the vote. Yesterday we had the spectacle of this delegate busking on the floor of this house for sympathy, as well he might. He is a delegate who cries, `Compromise!' Compromise? The Australian Republican Movement's model has been on the table for over three years. We have modified it. We have talked to people. We have built in changes as people have raised concerns with us. Over that three years-

Professor PATRICK O'BRIEN interjecting-

Ms THOMPSON- Be quiet, Professor O'Brien, your turn will come.

Councillor TULLY- Mr Chairman, I raise a point of order. I am a bit concerned about these comments because this group went into the election claiming that they would compromise, not have a fixed position. They have not compromised at all.

CHAIRMAN- Councillor Tully, will you please resume your seat. That is not a point of order. I would suggest, Ms Thompson, that you might address your remarks to the subject and not to the person who might advocate other causes.

Ms THOMPSON- Their model finally saw the light of day on Monday. We hear of democracy, of equality, yet some people believe that democracy means that Sydney and Melbourne get their say in who the president is or we stay put. This is not democratic; this is not compromising. It merely means that some people are a little bit more equal in the Federation than the rest of us.

I implore you all to remember where you came from. Remember what is good for your state and for Australia. Remember that we in Western Australia demand a say in who our president is, and a directly elected president will not get us that. Politics is the art of the possible. We Western Australians will not have a presidency which gives us no say, which is what some people want. We in the smaller states will not allow anyone to confine us to the dustbin of democracy by stripping us of the only method we have of anything like a fair say. The states must stand up and be counted and be given a say.

Ms PANOPOULOS- Clare may be from South Australia, but she was born in Sydney. I suspect that she is still part of the Sydney putsch. How quickly some of us forget our history. Ninety-seven years ago it was the states that made the Commonwealth, not the other way around. This Convention should have started with an examination of the Crown as it relates to the states, yet the Canberra centralists have relegated this discussion to the tail end of the Convention, in between grubby deals, to cobble together the mixed lolly bag of a republic.

When ACM moved an amendment that would have incorporated alteration of state constitutions as part of the time frame of moving to a republic, most federal parliamentarians in this chamber voted against it. I wait to hear their excuses when they go back to their respective states. It is sad and disillusioning for a young woman like me to observe our elected representatives determine their political views according to geographic location. In his opening speech, Mr Beazley said:

Any of the models we consider will to some extent rebalance the political process in this country.

He expressly included the McGarvie model. Yet no republican at this Convention has explained how their model would rebalance the separation of powers doctrine. They have either not thought about it or hoped they could easily gloss over it. How can republicans expect to be taken seriously when they do not address the fundamental issues of our Federation? For the last week and a half, the republicans have bleated ignorant slogans and refused to answer the questions of substance. I can only assume that their advertising people have advised them to keep repeating their meaningless and ignorant jingos. Repeating something that is not true will not make it so.

I for one am not seduced by the calls for compromise. Our Constitution with its own Australian head of state, which has delivered one of the most stable democracies in this world, should not be compromised. The Australian people deserve more. The centralists are calling for compromise. What they really mean is that Canberra will decide and, if the states do not follow, too bad.

What they do not appreciate is that we will only have a republic when the majority of people in all the states vote to support a republic. The states, as colonies, came together to form a Federation under the Crown. If republicans want to rip the Crown out of Federation, they need the consent of all the states if the Commonwealth of Australia is to remain intact. This is not some red herring but the opinion of two distinguished lawyers, Sir Harry Gibbs and Dr Colin Howard, both of whom demand greater respect as constitutional experts than does any one else in this chamber.

Republicans have been warned: do not insult the Australian people by throwing a grubby deal of a republic in their face. When you put two completely different republican dogs in one room, you get a mongrel. The states, the people of Australia, will not throw away their Constitution for a hastily conceived mongrel.

Dr GALLOP- It is clear that questions related to the position of the states have been ever present in this Convention, but indeed they have been unresolved at this Convention. There are both legal issues and political issues that have to be addressed in any move to a republic.

As a republican at this Convention, I will put the following proposition forward: the starting point of any move to a republican future should be to ensure that the ability of a recalcitrant and obstructionist state government, and their monarchist allies, to use taxpayers money and obscure legal argument to hold up a positive decision at a national referendum under section 128 of the Constitution should be avoided at all costs. For that reason, the option put forward by Working Group M is clearly the way forward. Leave the states to their own devises. The option clearly establishes that the states are autonomous, both in respect of the process of change and in respect of the republican forms they may wish to have and, by implication, whether they wish to maintain their current arrangements. This will mean that the political process in each state will determine the outcome.

Within that political process, as a Labor leader and supporter of a republic, I will do all I can to ensure that Western Australia will respond positively to a successful federal referendum. Indeed, I will do all I can to ensure that it is part and parcel of that successful referendum. I have an obligation to do that not just because I am a supporter of the republic but also because I am a supporter of our federal Constitution, which does provide a means for its alteration, including a move to a republic.

Let me now make a point about the republic and our states. The republic will strengthen the federation by removing the Crown from the Constitution. Let me give one very clear example of this to delegates at this Convention. I refer to section 2 of our federal Constitution. Section 2 provides for the Governor-General to be the Queen's representative in our nation, exercising powers as she `may be pleased to assign to him'.

Let us imagine a situation. Let us do the sort of thing that all the monarchists have been doing at this Convention by looking at words and probing the implications of them. Just imagine a nasty Prime Minister very keen to get rid of a state Governor. Delegates, it is not beyond the realms of constitutional possibility that a referral of the power to appoint and dismiss state Governors could be shifted to the Governor-General. That would then mean that the Governor-General, acting on the advice of a Prime Minister, could dismiss a state Governor.

I would like everyone in this room today to tell me why that constitutional possibility could not occur, given the nature of our current system of government. By going to a republic we will guarantee that the states will fully in law as well as in fact govern the arrangements by which their Governors are appointed, the powers and functions they have and the way that they are dismissed.

Let me also say that it will be a good thing for our federation if our states have different systems, if only in emphasis and nuance. It will mean that the ways and means of making a republic work better will be subject to continual review and change, just as they have been in respect of electoral systems, upper houses and parliamentary practices. In other words, we should leave the republican future within each state to the political and constitutional devices of those states. That will create a genuine process within our federation of testing new ideas and allowing new ideas to develop.

I am sure that the different states will establish different models for appointing and dismissing state Governors. In my own state, I will be keen to see that the governorship is preserved and that the people of the state have some ownership of the process by which such Governors are appointed. We need a system that will engender pride and that will be linked to the aspirations and desires of our people.

The monarchists make one very important point at this Convention and that is that there is, amongst some of our people, a strong link with aspirations and desires of the monarchy. We have to replace that with something in which people can have great pride. I believe that in many of the models we have seen so far that cannot be done.

Mr HODGMAN- In the last four days I have been back in the real world. My constituents have given me four messages to bring to this Convention. The first is that, objectively, they have reached the conclusion that the constitutional monarchists and those who support our current Constitution are currently winning the debate which is being carried to them by the media. The second thing they have told me to tell you is that they have reached the conclusion that a move to even the most minimalist republic will be constitutionally difficult, indeed prickly. The third thing they have noted is that the republicans at this Convention are hopelessly divided. They are saying to me that, if they are divided, we will not vote for a republic.

The last was not really a message of felicitation, if I can quote Sir James Killen. They said that, with the greatest of respect to this Convention, which refused to have the matter investigated, they, the ordinary people of Australia, the ordinary men and women of Australia, want to know what this republic is going to damn well cost. Whether you believe it or not, out there in the real world they are staggered to hear that the republic could cost the taxpayers of Australia in excess of $4,000 million in year one and $1,000 million for every year sequentially for the next seven years.

Like Sir James Killen, I want to put on record my amazement that the republicans have been in this debate now for eight days and most of them have ignored the fact that the Commonwealth of Australia is a federation. I remind you: it is one indissoluble, federal Commonwealth under the Crown.

Our federal Attorney-General, for whom I have great regard, addressed us the other day and never once mentioned the fact that we are a federation and never once mentioned the states. My dear friend Professor George Winterton went further today. But, with great respect to that academic of great distinction, I have to say, `Get your facts right.' He said, `In Tasmania you probably wouldn't even need a referendum to get rid of the governor.'

I will quote a distinguished Tasmanian- a great constitutional lawyer who was head of the Attorney-General's Department in Tasmania, who was head of the Department of the Premier and Cabinet, who served our state under both Liberal and Labor governments and whose integrity has never been questioned- who topped the ticket for the republicans in the state which I come from where, out of six seats, the election to this Convention returned two republicans only, three constitutional monarchists including my friend Dr Mitchell from the Australian Monarchists League, and one independent. And what did Mr Julian Ormond Green tell you yesterday? Ignore it at your peril. I quote from the Hansard transcript specifically. He said:

For example, the Tasmanian Constitution states that the parliament consists of the governor, the Legislative Council and the House of Assembly. The office of governor is an essential element in the legislative as well as the executive side of the Constitution of that state.

He went on:

Under any legislative mechanism to achieve a republic at the federal and state levels, a vigilant approach needs to be adopted to ensure that the federal government and the federal parliament not use the opportunity of the change to a republic to give the federal president power to appoint state governors or state presidents. I say this as a warning because, during negotiations and discussions on the Australia Bill in 1984 and 1985-

which later became the Australia Act-

in which I was involved, the Department of the Prime Minister and Cabinet-

under the Hawke government-

pushed for the appointment of state governors by the Governor-General. When that push failed, it was then proposed that nominations for the appointment of state governors be made through the office of Governor-General and then passed to the palace. That, too, was not agreed.

So you can see what was on the agenda in 1984- state governors would have been appointed by the Governor-General. Can you imagine what would happen in a republic forced on us by people like Mr Malcolm Turnbull? The state governors would be removed by the president. You are not just tinkering with the Constitution- the republicans are actually trying to rape it. Let me put it bluntly: back off.

We on our side know that the people of Australia cherish this Constitution and cherish our Federation. We will fight to preserve it and we will succeed. You might have the numbers here, but I cannot wait for this to go to a referendum out there in the electorate because the republicans are going to get the father and mother of a hiding, if I can conclude on a totally non-sexist note.

Mr WRAN- This has been a very interesting debate. As one would expect, there have been very positive stances taken by state Liberal leaders, both in government and in opposition.

However, I think- indeed I am sure- that the legal and constitutional complexities upon the states in the event of Australia becoming a republic have been vastly exaggerated in the debate. It has had the effect of creating almost every delegate as an instant constitutional lawyer who can find either the frustrations of the change or the solutions. I think the important thing to remember is that, when Australia becomes a republic, when we have our own head of state, states retain their autonomy. The states are part of a federation. Under the constitutional arrangements between the Commonwealth of Australia and the states which make up that Commonwealth, they have the right to appoint their own head of state of the state. Nothing will change that by virtue of Australia becoming a republic.

This notion that federation will be fractured and that suddenly Sodom and Gomorrah will arrive is absolutely nonsensical to my mind. The fact is that the Queen is the head of state of each of the Australian states. The Queen at present is represented at the state level by the state governors. It is open, irrespective of whether there is constitutional change in respect of the republic, for each of the states or for all of the states to retain the Queen as their head of state. It is open to the states- all of the states- to remove the Queen as their head of state. There are various ways of doing it, depending upon the terms of the state constitutions, but, nevertheless, the machinery is there to do it.

It is open to one or more of the states to appoint their own head of state. The argument that section 7 of the Australia Act entrenches the monarchy at the state level is an interesting argument but one which I repudiate. Nevertheless, what is the answer? You either amend the Australia Act or acts to make it clear that the Australia Act does not entrench the monarchy, or, alternatively, as is set out at page 127 of the report of the Republic Advisory Committee, you can have an alteration under section 15(1) of the Australia Act upon the request and consent, as my learned friend Delegate Killen pointed out, of all the states. All of that is complex but feasible. There are no enduring hurdles to the change. The change to a federal republic will in no way create a problem for the relationship between the federal government and the states and nor should it.

The one thing I would like to emphasise is this: there is absolutely no need for the Commonwealth to force the states or any one state to abandon the monarchy against its will. If, despite the fact that the Commonwealth of Australia is a republic, some state wishes to retain a monarchical system within its own borders, then that is its choice. To that extent, the constitutional arrangements will be quite adequate to cater for any change. The probability is that, if a state hangs out and maintains a governor appointed by the Queen, ultimately, I would think, the Queen herself would say, `Enough is enough. You've got a republic out there in Australia. I really don't feel comfortable being the Queen of XYZ state.' Thank you.

Lady FLORENCE BJELKE-PETERSEN- I am pleased to be able to speak on these motions before us today. I want to remind you all that, in 1901, the states agreed to unite for federation. They did not do it in two weeks; they took some years to settle the whole argument. It is amazing to me that it has taken us eight days to get around even to thinking about the situation that would apply to states in our Federation. This is something that we really have been very slow to look at.

The issue of whether we should be a republic or not was thoroughly debated when the founding fathers wrote the Constitution. In the end, it was decided by the people that they would be better off with a constitutional monarchy than with a republic. The question was put to the people at a referendum and it was the people who chose the Crown, not the Crown that chose the people. The Crown was not forced on us at all and the sovereign certainly has never interfered with our constitutional development.

I want to remind our gathering here that, in 1977, the Queensland government made the Queen the Queen of Queensland. Apparently, they decided that not only should she be Queen of Australia but also that she should be the Queen of Queensland, and they wrote it in with consultation and with legal opinion from Oxford in England. They seemed to feel that that was where they would get very good advice. I do not know whether the lawyers in Australia thought they were being overlooked. Because of this, I believe it is certainly necessary for Queensland to have its own referendum about being part of the republic. I wonder whether, in the end, it might be a stumbling block to a federal republic; I am not sure about that. But Queensland has certainly often been called different. Western Australia could be in the same situation.

Then we have the matter of governors of our states and what will happen to them. There have been great discussions about whether they are to be called governors or whether they are to be called vice-presidents if we have a president of the republic. As I mentioned earlier in one of my speeches, the thing that worries me is that there could be a move, if we become a republic, to do away with the states. When I mentioned this last week, Mr Wran shook his head and said, `No.' But on Monday a republican delegate from the Northern Territory, Mr Michael Kilgariff, said that we should examine whether the current system of states should be maintained, a recognition of a stronger role for local and regional government, as well as other constraints imposed by current constitutional arrangements. I am sure that our Brisbane Lord Mayor fancies the Brisbane City Council having a lot more power and perhaps even taking over the state in Queensland. Please forgive us; I certainly would not like that to happen.

In the main, we know too that the federal government holds the purse strings- that is another matter- and everybody wants to pay less tax. When I was in the Senate, in my maiden speech I talked about having a single rate of tax. I thought it was a good idea at the time but not everybody agreed with me. I think if it had been adopted we might be in a better position now because people are always wanting to pay less tax.

We know that when Mr Keating started to talk about a republic he defined the Senate as `unrepresentative swill'. I class the Senate as being very important to the states. If you do away with the states you will have to do away with the Senate, and I think that that would be very bad indeed. I am sure the senators here would be upset about it too. I have often wondered whether Mr Keating thought about doing away with the Senate as part of his republican plan. He mentioned it was unrepresentative swill, with which of course I did not agree.

The Senate, together with the states, is certainly an important part of the democratic system of government in Australia which I believe should be protected. Our present Constitution under the Crown certainly does this and that is why I stand before you today as a constitutional monarchist hoping that we will retain our present system of constitutional government here in Australia.

Professor PATRICK O'BRIEN- I generally support Working Group M's proposition, for several reasons. Firstly, I believe that diversity is the staff of life and this model does make it possible for different states, in the event of Australia becoming a republic, to have different forms of republican government. It is my personal belief, based upon much reading and the judgment of others, that in a sense the Westminster system is unreformable. It is what Sir Ivor Jennings, Lord Hailsham and Lord Hewart call the `elective dictatorship'. This model makes it possible for some states to move away from elective dictatorship to a more direct form of democracy better suited to our times.

The Economist pointed out recently that in this day and age the doctrine of absolute parliamentary sovereignty is an anachronism. My colleague Professor Martin Webb has written a model constitution for Western Australia and that model will come up when Western Australia finally gets its Constitutional Convention. It greatly disappointed me that the Western Australian Republican Advisory Committee decided to delay any decision on the future of Western Australia's Constitution until the decision had been made at a federal level. I was very saddened that our Premier, usually an ardent states rightist, supported that because it seems to me that if you did believe in the states you would get in first and try to provide a model for other states and the rest of Australia. In Western Australia we had that opportunity and we lost it.

There is another very important reason which I touched on in my opening remark- diversity. Just as with Judith Sloan, who went from Melbourne to South Australia, I was a Victorian and a Melburnian and, like most Victorians and Melburnians, I believed that that was the centre of the universe. The question of federalism did not particularly pre-occupy me except in a theoretical way as a student because Melbourne-Sydney-Canberra was the centre of power. But having moved to Western Australia and having lived there for nearly 30 years, I did see the great value of federalism because it does give particularly the remote and isolated states- and there could be no more remote and isolated state than Western Australia, apart from the Northern Territory and the northern sections of Queensland- the opportunity to have a greater say in affairs.

While secession is dead and is not going to occur, the secessionists do have a point. Their main point is that a very large percentage- something like 27 to 30 per cent- of Australia's national income is derived from WA exports. So although Western Australia is numerically small in terms of the total percentage of the national population, it does provide 30 per cent of the national wealth. That does raise the problem of how you weight voting systems. But as far as maintaining a very healthy, strong diversity, model M does that.

Quite clearly, if Australia becomes a republic, regardless of what form we adopt, there will be hitches. Things will not work immediately. There will have to be changes and amendments.

If you have a variety of governments in a variety of states under the general mantle of the Commonwealth, it provides competition, which is very important. For instance, take the bay area of San Francisco, where you have a huge population with many different republics, in reality, existing. I think it was in 1993 that San Francisco increased its sales tax in order to help pay for the large number of street people who had moved into San Francisco from other states. Then Alameda County lowered its sales tax and it boomed. So for the reasons that I have given, in particular cultural diversity would be best maintained in advance through general support of model M.

DEPUTY CHAIRMAN- We will now hear from Mr Tom Keneally as proxy for Steve Vizard.

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Last updated: 21 October 2000