Paper by Richard E McGarvie and Jack Hammond QC placed
before the Mayor of the Corowa Shire Council and members
of the Corowa Federation Centenary 2001 Committee on 16
and 17 December 2000. On 19 December 2000 the
Council decided to hold the Corowa Peoples Conference
2001 at Corowa on the weekend of 1-2 December
2001. The paper has been revised and updated and
now refers to a study published since the paper was
written.
The
initiatives of Sir Zelman Cowen and the federation town
of Corowa could come together to give Australians a
unique opportunity of deciding the future of the monarchy
in this country in an informed and practical way.
We approach our century of nationhood, knowing that
before the 1999 referendum, opinion polls were showing a
high majority discontented with the central
constitutional feature that we have as our head of state
whoever is monarch of our former colonial power.
Constitutionally that is an unhealthy way to start our
second century. It is vital that there be an early
resolution of the issue whether we separate the
constitutional systems of the federation entirely from
the monarchy, with the result that Australia would become
constitutionally self-sufficient and fit the description
of a republic. In his notable lecture of 31 October
2000, former Governor-General, Sir Zelman Cowen,
identified a practical process for choosing from the
models and progressing to an early resolution of the
issue of constitutional change by a referendum vote of
the people. For reasons given below, the referendum
of 1999 did not resolve the issue and the move to resolve
it has stalled. As in 1893, when it initiated the
process that restarted the stalled move to federation,
Corowa may again rise to the national need and decide
to hold a conference in 2001 to enable people to express
a strong view on the importance of early resolution of
the issue and how to do it.
Need
for early resolution of the issue
Australia’s
constitutional health requires an early resolution of the
issue. Support for the colonial legacy of having our head
of state in another country on the other side of the
world has almost evaporated. The Newspoll of city and
country voters in September 1999 showed 95 per cent
agreeing that the head of state should be an Australian,
88 per cent strongly agreeing (Weekend Australian, 9-10
October 1999, p. 8). A study made since the referendum as
part of the Australian Election Study series and
published since this paper was written, shows 89 per cent
agreeing an Australian should be head of state, 70 per
cent agreeing strongly (Bob Birrell, Federation: The
Secret Story, Duffy & Snellgrove, Sydney, 2001,
pp. 325-7). But only 45 per cent voted for the package
offered in the referendum and in no state was there
majority support. That indicates that over 40 per cent of
voters were not satisfied they were offered an acceptable
package and voted no despite their desire for an
Australian head of state instead of the monarchy.
It
is unhealthy to leave the body politic with a
constitutional running sore where around 90 per cent do
not identify with a central feature of their constitution
close to national sentiment. The succession of
long-lasting disputes over Canada’s constitution
since the late 1970s has weakened the authority of that
constitution and accordingly the democratic and federal
compact of the country (R.E. McGarvie, Democracy:
choosing Australia’s republic, Melbourne
University Press, Melbourne, 1999, pp. 5-6). Events could
force a decision on us without much warning. Britain
could abolish its monarchy or something could quickly
produce an urgent consensus here to separate from the
monarchy. With the complexities involved and the time and
consensus necessary to amend Australian constitutions,
the sooner we know our preferred way of adapting our
present system so as to detach the monarchy, the better.
We should not risk having to decide that under pressure,
with insufficient time for proper consideration while
time is running out.
What
is the issue?
It
is important from the outset to be clear as to what the
issue is. It can be stated as whether we detach the
monarchy from the constitutional systems of the
federation so as finally to achieve complete
constitutional self-sufficiency and autonomy. It can just
as accurately be stated as whether Australia becomes a
republic. Thus the Republic Advisory Committee said:
Australia
is … a state in which sovereignty resides in its
people, and in which all public offices, except that at
the very apex of the system, are filled by persons
deriving authority directly or indirectly from the people
… All that is required to make Australia completely
republican is to remove the monarch; no other
constitutional change is required (Republic Advisory
Committee, An Australian Republic: The Options
(Malcolm Turnbull, Chairman), Australian Government
Publishing Service, Canberra, 1993, vol. 1. p. 39).
In
the interests of clear thinking it is best either to
express the issue as one of detaching the monarchy or, if
it is expressed as one of becoming a republic, to make it
clear that only the detachment of the monarchy is
necessary for that and no change in the operation of our
system of democracy is necessary. Unless it is clear that
the word is used in this sense, its use can create a
misunderstanding of what is meant and an automatic
aversion to change to any republic. While they know there
are republics with good and stable democracy like the
United States and Ireland, Australians have lifetime
knowledge of the republics that allowed Hitler, Stalin,
Mao Tse-Tung, Idi Amin, Pinochet and Mugabe to take
control with disastrous consequence to millions of
people. (Compare the comments of NSW Premier Bob Carr in,
Michelle Grattan, ‘Republic-lite only chance says
Carr’, Sydney Morning Herald, 12 June 2000,
p. 4). That largely explains why, although the Newspoll
mentioned earlier showed 95 per cent agreeing (88 per
cent strongly) in September 1999 that the head of state
should be Australian, the Newspoll taken the month before
showed only 51 per cent in favour of Australia becoming a
republic, (Australian, 17 August 1999, p.2). A
neat way of referring to the issue free of that aversion
factor is to call it the ‘head-of-state issue’.
While
the monarchy could be detached in a way that does not
disturb the operation of Australia’s present
constitutional system, it could also be done in a way
which would alter that a little or a lot. That is why it
is important to examine the proposed models carefully and
in detail to see whether, and if so, how they would alter
the operation of the system that gives us our democracy.
Sir
Zelman Cowen’s call
In
his St James Ethics Centre 10th Anniversary
Annual Lecture in Melbourne on 31 October 2000 and in
Sydney on 14 November, Sir Zelman Cowen commenced:
‘I
speak of Wisdom and Hope, a title which has been
chosen for me. I concentrate on one hope – a
suitable Australian republic rather than scattering my
shot more widely.’
In
referring to the move towards federation he said:
‘Our
founding fathers assembled in two major conventions. The
first in Sydney in 1891 was attended by representatives
from New Zealand as well as from the Australian colonies,
and under the leadership of Sir Samuel Griffith of
Queensland, a draft constitution was prepared. Without a
plan or clear idea about the steps which should then be
taken, the project languished. In New South Wales, local
issues were seen as more pressing. In 1893 at a meeting
at Corowa, New South Wales, Australian citizens played a
leading part in formulating a path which a second
convention might take in framing a constitution, to be
followed by a referendum and, if successful, an
application to the United Kingdom parliament to enact the
Bill. The steps were followed pretty well.’
After
outlining those steps, the achievement of federation and
later constitutional developments, he turned to take
stock of where we are in the debate on a republic, and
where we might go. On the latter point he said:
‘Some
two months ago, the former Governor of Victoria, Mr
Richard McGarvie, who opposed the 1999 referendum
proposal as significantly defective, urged a renewal of
the discussion about a model of a republic that might
command widespread assent. Interestingly, he did so while
launching a volume, Faces of Federation,
which is an illustrated history of the federation
movement of a century ago.
In
launching it, Mr McGarvie referred to the process by
which federation had come about, several years after the
abortive effort of 1891, after a practical process for
resolving the federation issue was put forward at Corowa
in 1893 – for constitutional conventions and then
referendum - and given momentum when the Premiers
representing their respective governments met in
conference in Hobart in 1895. Given momentum by the
Premiers, who involved their own, the process continued
through the conventions of the late 1890s and the
referendums, on to federation in 1901.
Mr McGarvie said, and I quote:
The move to resolve
the issue whether Australia [should] become a republic
has stalled, as federation had in 1893 .… We now
have a unique opportunity to make a fresh start and must
use it while it lasts. For the time no political party is
promoting a particular model in a partisan way that
repels supporters of other parties and destines the model
to referendum death.
Mr McGarvie continued:
The most acceptable way for
Australia to become a republic is … one which could
catch public imagination and vision. It could genuinely
be presented as finally completing Australia’s two
centuries of evolution by ending the federation’s
reliance on whoever is monarch of the former colonial
power to be its head of state… That would be highly
symbolic change giving Australia for the first time
complete constitutional self-sufficiency and a formal
autonomy to match our long-existing independence as a
nation.
Mr
McGarvie’s proposal for a process by which to
achieve “a fresh start” is this, and again I
quote:
As
in 1895, the obvious activating agency is a meeting of
the heads of government, the prime minister, premiers and
chief ministers. Parliaments would best be brought in by
an agreement to set up an all-party committee within the
Commonwealth Parliament, including representatives from
the state and territory parliaments. It would investigate
and report on two questions. Which republic model would
best preserve the strength of our democracy? What method
of deciding the republic issue would least strain the
federation?
Mr
McGarvie envisages this process leading on, through votes
in individual states, “to a referendum in which
Australian voters would vote yes or no to whether the
whole federation” – that is, all States as well
as the Commonwealth – “should change to a
republic”.
Mr
McGarvie places great stress on involving leading
politicians of all parties at the Commonwealth level and
in all the States, and on their investigation of his two
questions about the best model of a republic, and the
best process by which to decide on the issue.
I
would very much like to see a process such as Mr McGarvie
proposes tried. It is not obvious that such a process
would lead to consensus either on republic model or on
decision process. There would no doubt remain monarchists
opposed to change, and republicans preferring the
monarchist status quo to a republic which does not
satisfy their criteria, either of popular election or of
Parliamentary election. But the McGarvie process would
put squarely before our parliamentarians, state and
federal certain important challenges.’
After
discussing also the challenges to those who have taken
various positions upon the republic issue, Sir Zelman
concluded:
‘I
urge that a process be undertaken which combines
political realism with expert advice, and which aims to
produce for Australia a republican model which, so far as
possible, provides a rallying point for a sufficiently
wide spectrum of mainstream opinion to lead to its
adoption.
This,
then, is the principal hope I have for Australia on the
eve of the centenary of federation: that, just as our
forebears found a process by which they devised a
federation that was acceptable to the people of the
Australian colonies, so we might find a process by which
we can devise a republic which is acceptable to the
people of this clearly independent and increasingly
self-confident nation, the Commonwealth of Australia.
I
would like to think, Mr Chairman, that I may have offered
wisdom. In any event, if I have offered hope, then I am
well pleased’.
Since
that lecture, Mr McGarvie, with Sir Zelman Cowen’s
authority, has sent copies of it to the Prime Minister,
Premiers, Chief Ministers, all Leaders of the Opposition
and to other opinion leaders. It is significant that Sir
Zelman and Mr McGarvie join in advocating that the
process be followed, despite holding different positions
on the republic issue. Sir Zelman supports Australia
becoming a republic and favours a model such as the one
proposed in the referendum or a variation of it. Richard
McGarvie does not take sides on whether Australia should
become a republic but is concerned to ensure that if we
decide to become a republic, we do so without weakening
our democracy or federation. He favours the model he has
advanced, which was the runner-up at the 1998
Constitutional Convention. These differences do not
inhibit them from joining to urge that we follow a
careful and practical process for the early resolution of
the republic issue. Obviously they unite on that because
they share the desire and objective of maintaining at
their highest the twin pillars of our system of
government, its democracy and its federation.
There
is every reason for a process such as they advocate
receiving the support of republicans, whichever model
they favour, of monarchists and of all other citizens.
Supporting the process does not involve giving support to
changing to a republic, or to remaining a monarchy, but
involves support for ensuring that if a constitutional
majority votes to change to a republic, it will be one
suitable for the democracy and federation of future
generations. Supporting the process does not involve
support for any model but for the introduction of a fair
and informed process for allowing the people to choose
from the models. Support for the process does amount to
affirming that it is not in the community interest for
the issue to be allowed to drift, unresolved, for too
long.
Present
constitutional position
By
gradual and evolutionary steps Australia’s
commonwealth and state systems have become almost
entirely detached from the United Kingdom. The slim
remaining constitutional connection is that whoever is
monarch of the United Kingdom is monarch and formal head
of state of Australia and appoints or dismisses the
governor-general and governors as advised by the prime
minister or state premier. The governor-general and
governors have long been the de facto heads of state of
their systems, exercising their own constitutional powers
and the remaining powers of the Queen, as advised by
their federal or state ministers. The Queen has no
authority to direct, control or veto a governor-general
or governor. (Democracy, pp. 16-23). Neither the
British government nor parliament has any control over
our federal or state governments or parliaments or the
Australian people. For years Australia has been a totally
independent country in all that it does. Yet because of
the remaining connection with Britain which survives from
colonial times, Australia constitutionally is not totally
self-sufficient and autonomous. Removing the monarchy
from any involvement in the systems of the commonwealth
and states and making Australia entirely a republic would
finally secure that autonomy by updating the formal
constitutional structure to correspond with the practical
substance of the present operating system.
In
1995 in his book, A Federal Republic; Australia’s
Constitutional System of Government, Professor Brian
Galligan made a perceptive and prophetic statement.
Having concluded that Australia is already in substance a
republic he recognised that his book ‘might not be
congenial to modern-day monarchists or republicans since
it undercuts their often passionate debate and the claims
that both sides make. If Australia is already in
substance a republic, monarchists are overstating the
significance of the monarchy in the present order and the
consequences of regularising the republic by eliminating
monarchic forms altogether. Likewise, Australian
republicans make similar exaggerated claims in order to
fire up themselves and the public to make what is in fact
a relatively small but technically difficult change to
the constitutional system’ (Brian Galligan, A
Federal Republic: Australia’s Constitutional System
of Government, Cambridge University Press, Melbourne,
1995, p. 4). There have been many examples of the
overstatements and exaggerations he identified.
A
deep problem flows from the fact that while the change
appears a small and formal one it is technically
difficult. Many practical people are not interested to
involve themselves in working out a change they see as a
formality. Most of the theorists who take it up have no
appreciation of the unacceptable risks produced by
distortions of the sophisticated balances on which the
democracy of our system depends. There are no villains in
the piece who want to damage our democracy. The peril
comes from enthusiasts who think it easy and proceed
without the knowledge, thought and care which are
crucial.
The
current stall
The
referendum placed great strains on the major political
parties. The Liberal Party endured the risks and tensions
produced when its members, as they were allowed to do,
publicly opposed each other on the issue. The Prime
Minister clearly favoured a no vote but only 65 per cent
of the party’s most recent electoral constituency
voted that way. The National Party opposed the package
but a number of its members publicly supported it. Only
80 per cent of its most recent electoral constituency
voted no. The Labor Party has had to live with the fact
that Paul Keating as prime minister advanced a republic
model which, in the form it took until the constitutional
convention, would clearly have been inconsistent with the
democratic operation of our system, as few of its then
supporters would now deny (e.g. Malcolm Turnbull, ‘Dismissal
Mechanism Keeps PM in Check’, Australian, 10
July 1998, p. 13; Fighting for the Republic: The
Ultimate Insider’s Account, Hardie Grant Books,
Melbourne, 1999, pp. 39-40). The Labor Party supported a
yes vote but only 57 per cent of its most recent
electoral constituency voted yes. (The percentages
indicating how the most recent electoral constituencies
of the parties voted were calculated by Associate
Professor Malcolm Mackerras).
Each
of the major parties has reason to postpone its
reinvolvement and identification with the issue. The
Coalition is treating the issue as having disappeared
with the referendum. The Labor Party proposes that there
should first be a plebiscite on whether we wish to be a
republic, then another plebiscite on which model we
prefer and finally a referendum on whether to change the
constitution. That would postpone resolution for many
years.
The
media is giving practically no attention to restarting
the move to resolve the issue. The move is stalled
as completely as the move to federation was in
1893. How can it be restarted?
The
constitutional way
The
basic constitutional issue of whether Australia removes
the monarchy will only be settled by a referendum vote of
the people which is accepted as a true test of
Australians’ real desire. It will be resolved only
by a referendum vote upon a proposal which can genuinely
be presented so as to catch the public imagination and
vision, and where people can vote free of partisan
political impulse and secure in the knowledge that
whichever way the vote goes our democracy and federation
will be safe for future generations. The package for the
1999 referendum certainly did not satisfy all these
requirements and its rejection did not resolve the issue.
The
need to resolve the issue in a constitutional way was
demonstrated on the other occasion when Australians
resolved by referendum a basic constitutional issue
involving both the quality of our democracy and our
character as a nation. This was the resolution of the
federation issue a century ago. Effective resolution in a
constitutional way requires the resources of people,
parliaments and governments all to be used in working out
the proposal ultimately put to referendum.
Instead,
following the fashion of the time, we have sought to
resolve the republic issue in a privatised way. It has
not worked. In substance we left the proposal ultimately
put to referendum, to be worked out by a private
organisation, the Australian Republican Movement (ARM).
Scrutiny of the proposal was left mainly to another
private organisation, Australians for Constitutional
Monarchy (ACM).
Mr
Keating, having raised the republic issue, did not refer
it to a parliamentary committee but in 1993 appointed the
Republic Advisory Committee (RAC) to consider and
describe the viable options for a republic after
consulting with the community. The committee’s
chairman was Malcolm Turnbull, who later that year became
the chairman of the ARM. All members of the RAC favoured
Australia becoming a republic. The submission of the ARM
to the RAC was that a president should be elected by a
two-thirds majority of both houses of parliament. (Democracy,
pp. 123-4). The clear tenor of the RAC report favoured
that method of election and that the president should be
dismissible in the same way. That model was advanced by
Paul Keating. At the Constitutional Convention the ARM
had the largest delegation which caucused and voted as
its majority decided (Malcolm Turnbull, Fighting for
the Republic, pp. 34, 57). With the other votes it
could count on, it prevailed on all major issues. The
legislation for the referendum reflected the convention’s
decisions.
Under
this privatised mode of resolution there was little
influence upon the form of the referendum package by
republicans other than those favouring parliamentary
election, by monarchists or by the vast numbers whose
main concern is to retain the strength and stability of
our democracy and federation if we become a republic. In
complete contrast to the way federation was achieved, the
contribution of members of governments and parliaments
with their experience and feel for the constitutional
system, the realities of politics and the electorate has
been minuscule. That has shown.
The
first move towards federation stalled. None of the
colonial parliaments passed legislation that would enable
the federal constitution drafted by the 1891 convention
to be adopted. Then a process which brought to the task
the constitutional way of resolving the issue was
developed.
It
began on 1 August 1893 at a conference in Corowa
organised by federation supporters.
Helen
Irving in her book, To Constitute a Nation,
records that at the conference ‘a desire for action
had begun to grow in the participants. With it came a
feeling that the conference was to wind up with nothing
but “words, words, words”’. (Helen Irving,
To Constitute a Nation: A Cultural History of
Australia’s Constitution, Cambridge University
Press, Melbourne, 1997, p. 136).
Then
in the hope of changing from routine to inspiration, it
was suggested a small committee retire. After some
minutes it returned and Dr John Quick, the representative
of the Bendigo Australian Natives’ Association,
moved his motion which proved to be the turning point
where a stagnant move to federation regained momentum and
forged a path to federation (Irving, p. 135). The motion
was that the parliament of each colony should pass an Act
providing for the election of representatives to attend a
convention to consider and adopt a bill to establish a
federal constitution for Australia and upon its adoption,
the bill be submitted by referendum to the verdict of
each colony. It was received with acclaim and passed
unanimously. It was a superb amalgam of the practical and
the inspirational. Above all, by their election of
representatives to the convention and their later
referendum vote, the people were brought into the process
with a central and controlling responsibility.
The
Corowa peoples conference provided the principle and plan
of the process for restarting and resolving the
federation issue, but history showed that more was needed
before the process provided the fully constitutional way.
Mechanisms were still needed to introduce the positive
input from governments and parliaments that would give
the process political momentum.
The
introduction of those mechanisms was initiated by an
influential political leader, George Reid, Premier of New
South Wales, who saw his political advantage in giving a
lead on federation. He arranged the premiers’
conference in Hobart in 1895. John Lahey in his recent
book, Faces of Federation, tells us that, at that
meeting of heads of government, ‘there was an
important change: politicians were brought into the
process’. (John Lahey, Faces of Federation: An
Illustrated History, Royal Historical Society of
Victoria, Melbourne, 2000, p. 33). The premiers decided
to bring in the parliaments. When the convention had
drafted its bill it was to go to each colonial parliament
which could propose amendments. Then the convention would
reconvene, accept or reject those amendments and the
resulting bill would go to referendum. Lahey says, ‘The
Hobart conference and its outcome were like the peak of a
mountain. Once the premiers had been there and seen the
view – or the vision – there was no going back’
(p. 90).
Over
a century later, political momentum for restarting the
stalled move to resolve the head of state issue will
await an influential political leader or leaders seeing
political advantage in taking the first step to generate
it. That political advantage will be sensed if it becomes
clear that there is a widespread desire by people that a
practical process for early resolution be carried
forward. One of the vital contributions of the Corowa
Peoples Conference 2001 would be in giving the lead in
revealing the existence of that desire and expanding it.
As
in 1895, the obvious agency to activate political
momentum today is a meeting of the heads of government.
The Prime Minister, Premiers and Chief Ministers meet as
the Council of Australian Governments (COAG).
Parliaments
would best be brought in by a COAG decision to set up an
all-party committee within the federal parliament,
including representatives from the state and territory
parliaments. It would investigate and report on two
questions. Which republic model would best preserve the
strength of our democracy? What method of deciding the
head-of-state issue would least strain the federation?
The committee should consult a lot with practical people.
The model recommended by the majority, and any with
minority support, should be described with the detail
required by the 1998 Constitutional Convention, and its
supporters give full reasons for favouring it over the
other models.
Would
the reports of the committee be based on the genuine
individual opinions of its members acting in a bipartisan
manner? Parliamentary committees on a subject where the
major parties have conflicting interests usually divide
on partisan lines. Where there are no such conflicting
interests they operate very effectively. Much of our best
legislation results from all-party committee reports. We
have reached the stage where no party is promoting a
particular model or a particular method of making the
final decision. The major parties share a reluctance to
take the lead on the issue and their interests would be
served by encouraging the responsibility to be taken by a
distinguished parliamentary committee operating in a
bipartisan way. All parties share an interest in
preserving the strength of our democracy and federation
if we become a republic. There is the example of a
century ago. If the leaders on the federation issue,
instead of adopting the common objective of seeking the
best constitutional structure within which to continue
their political contests in future, had divided into
freetraders campaigning for one model of federation and
protectionists for another, the Australian nation would
not have been born when it was.
The
community would expect a bipartisan approach from the
committee. After all, the committee would not be
reporting on whether we become a republic but on the best
model to preserve the strength of our democracy if
we become a republic, and on a method of making a
decision which will leave our federation strong.
Some
cast doubt on the feasibility of such reliance on a
parliamentary committee and claim there is now little
faith in our representative institutions. (e.g. Malcolm
Turnbull, Fighting for the Republic, p. 248). That
overlooks the federation experience. As Helen Irving
records, ‘the ever familiar character of
intransigent party rivalries and public disdain for
politicians as a type were well entrenched’. They
were frequently the subject of ridicule, criticism and
popular amusement. They were mistrusted for their motives
and often assumed to be ruled by self-interest. But when
it came to the constitutional creation of a nation,
almost all those elected to the conventions were
politicians. Their experience and knowledge were
recognised. (Helen Irving, To Constitute a Nation, pp.
137, 142-3). A good constitution resulted.
There
is a practical method of deciding the head-of-state issue
with minimal strain on the federation, which would also
most-effectively engage governments, parliaments and
people in working out the ultimate referendum proposal.
The parliamentary committee would be highly likely to
recommend it.
Under
that method the first step would be that within each of
the commonwealth, state and territory systems its
government and parliament would decide on and pass the
necessary legislation and hold a plebiscite on which
republic model the voters of that system would prefer if
it became a republic. All models with majority or
minority support in the parliamentary committee report
would be included in the vote. That would give the
commonsense of the people of each system, informed by the
committee report, the vital role of showing voter
preference within the system. Ascertaining that
preference would greatly influence the building of
political consensus on the model for the system. There is
no constitutional reason why different systems could not
have different models but that is not a likely outcome.
Then
a bill would be drafted and passed by the houses of the
federal parliament proposing constitutional amendments to
go to referendum. There would be a single referendum
where voters would vote yes or no to one question,
asking, in effect, whether they approved the proposal to
make the whole federation republican. The systems of the
commonwealth, states and territories would each convert
at the same time to its preferred model of republic if
the proposal received support from an overall majority of
Australia’s voters and the voting majority and
parliament of each state. Australia would then have total
constitutional self-sufficiency and be entirely a
republic. The support of each state parliament, necessary
to enable the whole federation to change together to a
republic, would be expected to follow as a matter of
course if majorities in every state voted yes. If the
support necessary to convert all systems to a republic
were not received all would remain monarchies.
The
process outlined above was proposed by Richard McGarvie
in his book, Democracy, at pp. 255-263. It was
developed and the practicality it draws from the
experience of federation emphasised in Papers 36 and 37
on his website www.chilli.net.au/~mcgarvie
Amendment
of the commonwealth constitution in reliance only on its
s.128 requires referendum support from the overall
majority of voters and majorities in at least four
states. The proposed method would simultaneously amend to
republican form the constitutions of the Commonwealth and
each state and territory in reliance also on s.15(1) of
the Australia Acts 1986 and s.51(38) of the commonwealth
constitution. The amendments would occur only if,
in addition to the overall majority of voters, there were
a majority in every state, and every state parliament
requested or concurred in the amendments. The higher
requirements of support than s.128 specifies, would not
be a requirement significantly higher than has in
practice usually been obtained in Australia. We moved to
federation after all states (then colonies) approved in
referendums. Seven of the eight amendments made to the
commonwealth constitution – all those made after
1910 – had referendum support from an overall
majority of voters and majorities in every state.
As
appears from Paper 37 on Richard McGarvie’s website,
before his book was published, he asked Sir Daryl Dawson,
formerly Solicitor-General of Victoria and High Court
judge, to read the chapter containing the proposal for
the above constitutional amendments and he confirmed that
they would be valid in constitutional law.
It
is useful to look at requirements for resolving the head
of state issue which the proposed process would satisfy
but which were absent from the process which led to the
1999 referendum.
Strength
of federation
The
1999 referendum was not upon whether the monarchy be
removed from the federation but only upon whether it be
removed from the commonwealth system of government. If it
had passed, the state systems would have still been
monarchies. Further process would have been necessary in
each of them to decide whether the monarchy was to be
removed from the state system.
The
wellbeing of the federation was given little attention
and the states were treated as of minor and subordinate
importance and expected to follow the Commonwealth.
Public reports in three states had urged that, to
preserve the compact and unity of the federation, the
commonwealth system should not be changed unless every
state supported it by the majority of its voters in a
referendum or by its parliament. But in the way the
decision was made, if there had been an overall majority
of Australian voters and a majority in four states, the
commonwealth system would have changed to a republic even
through two states voted strongly against it. Not only
would dissenting states have been forced to accept the
federation with a commonwealth system of a type they
opposed, but in practice they would have been forced by
circumstance and ridicule to change themselves to
republics at state level. That would have weakened the
cohesion of the federation (Democracy, pp.
246-255).
The
process proposed by Richard McGarvie and endorsed by Sir
Zelman Cowen would neither weaken nor impose strain on
the federation. There would be no change to the
commonwealth system or any state or territory system
unless there were support from the overall majority of
voters and the voting majority and parliament of every
state. If that support were present, the whole federation
would remove the monarchy together.
Catching
public imagination and vision
In
considering constitutional amendment we must constantly
keep in mind that Australians a century ago adopted a
constitution with the democratic provision giving the
people the final say on amendments. Quick and Garran
emphasised that, while provision for amendment is
essential, a constitution is a charter of government
which should not be lightly or inconsiderately altered.
They saw the requirement by s. 128 of a double majority
as a necessary safeguard to secure maturity of thought,
encourage discussion, and delay change until there is
strong evidence that it is desirable, irresistible and
inevitable. They commented that, ‘Where a community
is founded on a political compact it is only fair and
reasonable that that compact should be protected, not
only against the designs of those who wish to disturb it
by introducing revolutionary projects, but also against
the risk of thoughtless tinkering and theoretical
experiments’ (John Quick and Robert Garran, The
Annotated Constitution of the Australian Commonwealth (1901),
Legal Books, Sydney, 1995, pp. 988-9).
The
republic issue will be resolved only in a referendum
where the proposal for change from monarchy to republic
is soundly constructed and soundly advocated. Without
that it will not be a fair test of public opinion which
would resolve the issue.
History
shows that with a proposal for constitutional change of a
basic nature, such as becoming a federation or becoming
or republic, something more is needed. The community will
only adopt the proposal by referendum if it is seen to
rise above mundane considerations such as sectional
advantage and disadvantage and if it generates an image
which creates a public feeling and sentiment that it
would be an accomplishment very good for the community.
Helen Irving, in her book, To Constitute a Nation,
shows that while considerations such as defence,
business and tariffs played their part, it was the image
of an Australian nation that played a very significant
part in moving people to the idea of the inevitability
and desirability of federating. That attracted the
necessary support in the referendums in the six colonies.
Because
there are few credible claims which can be advanced to
show that practical advantage would accrue from removing
the monarchy, an awareness of the needs of good advocacy
should have impelled those designing the referendum
package to design one which would enable the symbolic and
sentimental dimensions of the change to be pitched at
their zenith.
The
way in which a proposal to change to a republic can be
advocated so as to catch the imagination and vision of
contemporary Australians is obvious. The system of
colonial government which started in Australia in 1788
was not constitutionally autonomous in any way but relied
entirely on the sovereignty of the colonial power. By
evolution over more than two centuries, Australian
initiatives, either not resisted or even encouraged by
Britain, have taken us to the stage where we are an
entirely independent country with constitutional
self-sufficiency except for the slim connection to the
former colonial power existing through the person who is
Britain’s monarch. It would have placed advocates
for change in a strong position if they could invite
fellow-Australians to take the last step and bring that
broad historical sweep of Australian initiative to its
inevitable conclusion by giving Australia, at last,
entire constitutional self-sufficiency so that it becomes
in every sense an autonomous nation state.
The
designers of the referendum package seem to have placed
little importance on the fact that we are a federal
country and democracy. The package on which we voted
could not be claimed as ushering in the culmination of
the inevitable sweep of history and bringing complete
national maturity. The referendum proposal related only
to the commonwealth system. Even if it had passed, most
of the federation – all of the states – would
still have been monarchies. It was a monumental mistake
to forsake the spirit of a century-old federation,
disregard the states and concentrate only on the
commonwealth. Without the opportunity of inviting the
country to complete the architectural design, the package
promoters concentrated instead on new fixtures and
fittings.
The
process now proposed would result in a referendum vote on
a proposal to separate the monarchy from the whole
federation and finally give Australia entire
constitutional self-sufficiency. It could fairly be
presented as a vote to complete the long sweep of history
by separating finally from the former colonial power and
assuming entire autonomy as a nation.
Free
of partisan politics
Referendums
pass only if they have consensus support right across the
political spectrum and support from the major parties. As
John Button has written, Australians like to think of the
republic issue as something above or beyond politics. He
adds that Paul Keating woke up republican sentiment in
1993 and understood its symbolic power. ‘He held it
in his hand like the Welcome Stranger gold nugget. Then
he dropped it in the murky waters of acrimonious partisan
politics’ (John Button, On the Loose, Text
Publishing, Melbourne, 1996, p. 131). To negate the
political advantage Keating derived from promoting a
republic and criticising the Coalition for not supporting
it, John Howard undertook to hold a convention and put to
referendum a model which had clear support, and the
referendum followed from that. Although it received some
extras and alterations from the constitutional convention
in 1998, the referendum model was Paul Keating’s
original one and never lost the identity of its birth.
For a political party to brand a model as its property
for use in extracting political advantage from its
opponents, is to brand it a referendum reject. This would
have to be a major factor in the extent of correlation
between party support and referendum vote appearing from
a Newspoll of voting intention taken in the week before
the referendum. It indicated 53 per cent of ALP voters
voting yes with 2 per cent uncommitted but 63 per cent of
coalition voters voting no with 2 per cent uncommitted (Australian,
2 November 1999, p. 6).
Paradoxically,
the unhappy experience of the political parties in the
referendum which leads them to postpone their
reinvolvement and identification with the issue, makes
its early resolution now more feasible. Since the
referendum, no party is promoting a particular model, so
that factor which destines a model to referendum death is
absent. While this state of party inactivity lasts, the
time is ripe to initiate a non-partisan process for
resolving the issue in a constitutional way. We must use
that opportunity while it lasts.
The
Corowa Peoples Conference 2001 would aim to include
people of all political viewpoints and people without any
fixed political preferences.
The
Council of Australian Governments which would receive the
Conference’s recommendations and become the
coordinating authority in respect of the process, in
practice includes members of various political parties.
The all-party parliamentary committee, of its nature has
members of various parties. These features give a good
prospect of the process developing in a non-partisan way.
It
should be emphasised that the process does not aim to
produce consensus on whether the federation should retain
or remove the monarchy or on the model for head of state
if it is decided to remove the monarchy. The process does
aim to produce as much consensus as possible on the
methods by which those points are to be decided.
Involving
people, parliaments and governments
The
proposed process involves the resources of the people,
parliaments and governments being used in working out the
proposal ultimately put to referendum.
Members
of the Corowa conference in 1893 were supporters of
federation. The members of the Corowa conference in 2001
will be supporters of the early resolution of the
republic issue. As in 1893, the Corowa conference in 2001
will be a peoples conference, with members from various
backgrounds who choose to attend because they regard it
as important. The recommendations of the conference would
be designed, among other things, to produce a widespread
demand among the people of Australia for early resolution
of the issue. The proposal for plebiscites on detailed
models recognises the importance of the people in
constitutional change in our democracy. It is
unacceptable that anyone but the people of the
Commonwealth or the people of a particular state or
territory decide which is to be the preferred model for
the Commonwealth, state or territory if it is decided
that the federation separate from the monarchy.
Ultimately it is the people who will decide in a
referendum whether to remove the monarchy from the
federation.
The
parliaments will be involved in passing the legislation
to enable the all-party committee to be set up in the
commonwealth parliament. Members of the parliaments will
constitute the committee. The parliaments will appoint
them. Each parliament will legislate for the holding of a
plebiscite on the preferred model for its system. The
commonwealth parliament will pass the bill proposing
changes to the constitutions of the federation on which
people will vote in the final referendum. If the
referendum passes with majorities in every state, each
state parliament will request or concur in the
amendments.
All
governments will be involved in the process, particularly
through the Council of Australian Governments, which will
decide on setting up the all-party committee and act as
the authority coordinating the process after the
committee gives its report.
As
was the case in the move to federation, the practical
process for now moving to the resolution of the republic
issue is quite complex. However, we now have the
advantage of a century’s experience of cooperative
federalism and the constitutional machinery to make all
the necessary changes ourselves. For federation, when
Australians had decided on their federal constitution,
legislation of the British parliament was necessary.
Today if we decide to change, Britain plays no part in it
whatsoever. We must remember Samuel Griffith’s words
to the 1891 convention, repeated by Edmund Barton to the
1897 convention: ‘It is no use for hon. members to
want federation while they refuse to accept the means
necessary to obtain it’. (John Lahey, Faces of
Federation, p. 39). If we again attempt to resolve
the issue in an easy way, we will repeat the futility of
1999. The referendum will fail without resolving the
issue.
Corowa
We start from the historical
fact that the peoples conference in Corowa in 1893
restarted the stalled movement towards federation. It
stands as a milestone in the journey to federation and
nationhood. It is a powerful symbol of what can be
achieved when practical people focus in a non-partisan
way on a practical process for the resolution of a basic
constitutional issue. During 2001 near the anniversary of
the conference of 31 July and 1 August 1893, Corowa will
remember and celebrate that important role. It also has a
unique opportunity to play a vital contemporary role in
providing a practical process for resolving the
head-of-state issue.
Corowa
is the ideal town to host a peoples conference in 2001 to
focus on the process for restarting the stalled issue of
whether Australia’s head of state remains a monarch
or becomes an Australian. Corowa held the conference of
1893 because of the strong desire for action on
federation by the people of its area (Helen Irving, To
Constitute a Nation, p.134). It is famous as the town
that restarted the stalled federation move by a practical
decision concentrating on process. It has pride in that
record. One of the most vital changes of approach if the
current issue is to reach early resolution is, instead of
treating only the commonwealth system as important, to
recognise the need to resolve the issue for the whole
federation. Australians value the whole of their
federation. Respect for federation and an awareness of
its importance is ingrained in the people of Corowa.
It
is entirely suitable for the Corowa Shire Council to take
the lead in organising the 2001 conference. Local
government is the first rung of our system of democracy
and the one closest to the people.
Helen
Irving tells us that country people played a key role in
the federation debate and that the contribution of rural
Australia was disproportionately greater than its
numerical size (pp.14-15). In the debate on the future of
the monarchy in Australia, the people of rural areas have
so far not had an important role. It is time to correct
that and draw fully on the clear-sighted practical
reality of the people of regional areas.
What
could be expected of the Corowa Peoples Conference 2001?
The
purpose of the Corowa Peoples Conference 2001 would be to
discuss and make recommendations on an informed and
practical process for early resolution of the issue of
whether Australia removes the monarchy from its
constitutional systems. This does not involve discussion
or recommendations by the Conference on whether we should
remove the monarchy and thus become a republic, nor on
the preferred model if we decide to do that. To achieve
its purpose the Conference would aim to draw on the
contributions of conference members who would share a
concern to maintain and enhance Australia as a nation and
its twin pillars of federation and democracy. It would
seek to unite in its purpose people of all political
viewpoints: and those who favour becoming a republic,
whatever model they prefer, those who favour remaining a
monarchy, as well as those with no fixed position on the
head-of- state issue.
Because
its purpose would be the entirely practical one of
initiating a process which would attract a high degree of
consensus support, it would be expected that the
Conference would seek to attract the attendance of people
likely to favour a practical, consensus approach. That
would include representatives of the main political
parties, people with constitutional, business or
organisational experience and people of every shade of
opinion on the head-of-state issue.
The
recommendations the Conference would make would depend
entirely on its decisions. To illustrate the potential of
the Conference one possible outcome is outlined which
assumes the approval of the process proposed by Richard
McGarvie and endorsed by Sir Zelman Cowen. With the
advantage of the lessons of history, the Conference would
be expected to make recommendations which outlined the
whole plan for resolution of the issue and included
recommendations designed to attract to that plan the
political momentum that would ensure that it operated.
The Conference would seek to achieve a result from its
recommendations, similar to that achieved through the
decisions of the Corowa Peoples Conference 1893 and the
premiers conference of 1895.
The
recommendations could be along the following lines:
1.
That in the community interest steps be taken to achieve
the early resolution of the issue whether the monarchy be
removed from the constitutional systems of the Australian
federation, or, in other words, the issue whether the
federation becomes a republic.
2.
That the Prime Minister, Premiers and Chief Ministers,
meeting as the Council of Australian Governments (COAG),
decide to set up within the Commonwealth Parliament an
all-party committee with representatives from the state
and territory parliaments to investigate and report on :
(a)
The model which would best preserve our democracy if we
removed the monarchy and became a republic;
(b)
The way of deciding the head-of-state issue that would
least strain the Australian federation.
3.
That a drafting committee, as representative as possible
of the various political viewpoints, be appointed by the
Conference and
(a)
draft proposed bills for the commonwealth, state and
territory parliaments to pass to enable the all-party
committee with representatives from the state and
territory parliaments to be set up and members appointed
to it; and
(b)
forward the proposed bills to the members of COAG and
Leaders of the Opposition, and to the presidents and
speakers of all parliaments, the media and other
interested people.
(The
drafting committee would do much the same as was done by
Dr Quick after the peoples conference of 1893: Helen
Irving, To Constitute a Nation, p.138).
4.
That after consideration of the proposed bills, the
parliaments pass the necessary legislation and set up the
all-party committee.
5.
That the all-party committee investigate and report on
the questions, with each model considered on the first
question described in at least the detail required by the
1998 Constitutional Convention.
6.
That the Commonwealth Parliament distribute the report to
the other parliaments and widely to the Australian people
and media and place it on the Internet.
7.
That after consideration of the report, the Council of
Australian Governments decide on the process to be
followed to reach early resolution of the issue and
accept responsibility for acting as the coordinating
authority to ensure that the process is implemented
without delay.
(Because
it would be the responsibility of the all-party committee
to recommend the process to be followed after its report
in order to decide the issue with the least strain on the
federation, the Conference’s recommendation on that
would be expected to be in the form of requesting the
committee to consider steps such as the following.)
8.
That the all-party committee be requested to consider
recommending that the following steps be taken to achieve
early resolution of the issue with least strain to the
federation:
(a)
Each parliament to legislate for a separate plebiscite to
be held within its system upon the detailed model
preferred for the system in the event of the removal of
the monarchy from the system : and each detailed model
with majority or minority support in the all-party
committee report to be included in the plebiscite;
The
Corowa Peoples Conference 2001 would take one action
which went beyond making recommendations. It would
appoint the drafting committee to draft and distribute
proposed bills for the setting up of the all-party
committee. As the first action in a process designed to
operate in a non-partisan way, it would underline that
approach if the drafting committee were as representative
as possible of the various political viewpoints. It would
be desirable that it include suitably qualified people
from the major political parties with members in the
parliaments and one representative of the small
parliamentary parties and the independent members.
State
and territory all-party parliamentary committees
Authors' Note 8/10/01: In the original design of the Corowa
Peoples Conference 2001 the detailed proposed process which we had prepared
was to be placed before the conference, which it could amend, substitute for or adopt.
That detaild process, as now amended, is set out in Paper 47. It extends the
parliamentary committee involvement beyond that advanced in Paper 38. The
initial hearings, investigations and report within each
state and territory would be the task of a committee
formed within its parliament. That is the most practical
way. It brings the process closer to the people and
recognises that the head-of-state issue has to be
resolved for the whole federation. It will inevitably
increase community knowledge of what is involved in the
Australian federation separating from the monarchy, the
traps to be avoided and how it could safely be done
without risk to the strength and stability of our
democracy or federation. It also provides a method which
gives a realistic prospect that the state and territory
representatives to the Federal All Party Parliamentary
Committee set up within the Commonwealth Parliament will
be appointed on a non-partisan basis. The Federal
Committee will make the final report on the two questions
in their correct form, after considering the state and
territory reports and such further investigation and
consideration as it chooses.