AUSTRALIAN HEAD OF STATE? the final step from colony to nation state

Article by Jack Hammond QC published in Overland, No. 163, Winter 2001, p. 93

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Just over a century ago in 1893, Corowa, a border-town on the New South Wales banks of the Murray, seized the opportunity to re-ignite flagging enthusiasm for Australian federation. The move towards federation had stalled and Corowa staged what is now an historic conference. On the second day, a unanimously-adopted motion moved by Victorian Dr John Quick¹ paved the way for Australia to become a nation.

 Today, in this centennial year of federation, Corowa is back in the national spotlight. Now, it is the head of state issue which has stalled, and in order to break that impasse, on December 1-2 this year, Corowa will host the second Corowa Conference - designed to recommend a non-partisan process to resolve the head of state issue.²

 In a year dominated by partisan politics, in which we may see one federal, five state and territory elections and one federal by-election³, Corowa's non-partisan approach provides a welcome contrast. Representatives from all major political parties, those with no involvement in politics and the public will meet to kick-start the stalled head-of-state issue.⁴ Former Governor-General, Sir Zelman Cowen, patron of the conference, will deliver the opening address.

 This second Corowa conference will not deal with "what is the preferable constitutional model" nor whether a constitutional change should be made. They are matters for later consideration. Instead, it is proposed that the Conference set up a high level, non-partisan drafting committee to prepare legislation to establish all-party committees within each of the parliaments. Those committees will cooperate in investigating and reporting on two questions:

• which head of state model would best preserve our democracy if it replaced the monarchy?
• which method of deciding the head of state issue would place least strain on our federation?

After that, it is suggested, with the community informed by the reports, that there be plebiscites in which the people of each state and territory will choose their preferred head of state model for their state or territory. They will also choose the model they prefer for the commonwealth. There is no constitutional necessity for Australians to choose the same kind of model for the states, territories and the commonwealth, although that is the most likely outcome.

 Finally, all Australians would vote in the one referendum on the single question of whether the whole federation (ie. the commonwealth, states and territories) should separate from the monarchy. All powers of constitutional change would be relied on, particularly the new powers created in 1986 by the Australia Acts. If supported by the overall majority of voters and the voting majority and parliament of each state, the whole federation would separate from the monarchy at the same time, with the commonwealth and each state and territory converting to the model chosen in its plebiscite. In this way, constitutional and politically legitimate change can be made without straining the federation. Otherwise, there would be no change. Either way, the issue would be resolved in Australia's interest.

 There is an overriding reason why the head of state issue should not be permitted to languish. It appears that most Australians reject the monarchy as a fundamental aspect of their constitution, yet in the same breath vote for its retention.

 Whoever occupies the English throne automatically inherits the constitutional and legal position of Australian head of state.⁵ The November 1999 republic referendum demonstrated that only 45% of voters supported the "Yes" vote, and no state recorded majority support. Yet a poll of city and country voters before the referendum showed that 95% agreed the head of state should be an Australian, with 88% strongly agreeing.⁶ Furthermore, an Australian Constitutional Referendum Study after the referendum found that when asked if the head of state should be an Australian, 70% strongly agreed and another 19% agreed with the proposition.⁷

 Those figures suggest that of the 55% of voters who voted "No" in the referendum, the overwhelming majority want Australia to separate from the monarchy, but were not satisfied with the republican package on offer. Those polls coupled with the referendum exposed a latent instability in Australia's constitutional framework. It is politically unhealthy for Australia to have a majority of its people dissatisfied with a key element of their constitution.

 From a British colony in 1788, Australia has inexorably advanced towards a self-sufficient nation state. Most constitutional links with England have gone. The final step is to have an Australian head of state.

 Some Australians are impatient to take that final step; however, many believe there is no pressing need to take it immediately. For all practical purposes, Australia already has an Australian head of state. The Governor-General performs that role and discharges those duties. And, as the referendum showed, a majority of Australians do not want to take that step unless they are satisfied that it will preserve the stability of our political system, underpinned as it is by the twin pillars of federation and democracy. Nevertheless, an unresolved head of state issue erodes that stability.

 Sir Zelman Cowen recently urged Australians to follow the practical non-partisan process that former Governor of Victoria, Mr Richard McGarvie has proposed for early resolution of Australia's head of state issue⁸. Sir Zelman and Mr McGarvie do not share the same view of a model for head of state, should Australia wish to separate from the monarchy, yet they share a common view of the non-partisan process needed to resolve the issue.

 Australians are entitled to expect that their elected representatives - local, state, territory and federal - will put in place a non-partisan process by which Australians can decide whether, when and how an Australian may become head of state. At the local level, supported by state, territory and federal political representatives, the regional Corowa Shire Council has started this process. The Corowa Conference in December this year will provide a powerful symbolic book-end to Australia's centenary federation celebrations. That will be a fitting end to the centenary, and an ideal beginning for the resolution of the head of state issue.

19 April 2001

Endnotes

1 "That in the opinion of this Conference the Legislature of each Australasian colony should pass an Act providing for the election of representatives to attend a statutory Convention or Congress to consider and adopt a Bill to establish a Federal Constitution for Australia, and upon the adoption of such Bill or measure it be submitted by some process of referendum to the verdict of each colony." (John Quick and Robert R Garran, The Annotated Constitution of the Australian Commonwealth, (1901), Legal Books, Sydney, 1995, p. 153.)

2 The Corowa Conference proposed draft program and proposals are set out in "Invitation to Comment", Paper 40 on Richard McGarvie's website at www.chilli.net.au/~mcgarvie

3 The Federal, Western Australian, Queensland, Northern Territory, ACT and South Australian elections, and the Queensland seat of Ryan-election.

4 To date, political representatives include ALP national president Greg Sword; Liberal Party federal president Shane Stone QC; Australian Democrats national president, Dr Michael Macklin; ACT Chief Minister, Gary Humphries (Liberal); ACT Leader of the Opposition, Jon Stanhope (ALP); NSW Leader of the Opposition, Kerry Chikarovski (Liberal); Tasmanian Leader of the Opposition, Sue Napier (Liberal); Victorian Leader of the National Party, Peter Ryan; a Shadow Minister representing the Victorian Leader of the Opposition, Dr Denis Napthine (Liberal), and former Leader of the National Party and federal member for Farrer, Tim Fischer. Others attending include former Prime Minister, Malcolm Fraser; former High Court Chief Justice, Sir Gerard Brennan; former High Court Justice, Sir Daryl Dawson; former Victorian Premier, Sir Rupert Hamer; ACTU President Sharan Burrow; Chairman of the Australian Republican Movement, Greg Barns; National Convenor, Australians for Constitutional Monarchy, Professor David Flint; Baptist Minister, Reverend Tim Costello, and former independent federal member, Phil Cleary.

5 Australian Constitution, Preamble: "Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established.". Presently, there is lively debate in England as to whether the monarchy should remain. If it goes, the Australian Constitution would require immediate amendment.

6Weekend Australian, 9-10 October 1999, p.8.

7 Australian Election Study series, cited in Federation: The Secret Story, by Bob Birrell, Duffy & Snellgrove, Sydney, 2001, p. 325.

8 Sir Zelman Cowen, "Wisdom and Hope", St James Ethics Centre 10^th Anniversary Annual Lecture, Melbourne, 31 October 2000, pp.11-17; Richard McGarvie, "The Wisdom of Hindsight - The 1999 Republican Referendum - Lessons for the Future", opening paper, seminar of Australian Association of Constitutional Law on Planning for a New Republic, Notre Dame University, Fremantle, 7 October 2000, Paper 37 on Richard McGarvie's website at www.chilli.net.au/~mcgarvie; see also Paper 36.

 
* Jack Hammond QC is neither a monarchist nor a republican. He is an "inevitabilist". He is satisfied with the existing system, however he believes that Australia will inevitably separate from the monarchy. It is not a case of "if", but rather one of "when" and "which" model is to be adopted. Accordingly, he believes that a non-partisan process is necessary to enable Australians to make that choice. He is one of those assisting the Corowa Shire Council with organising the Conference. Written comments and suggestions are invited on the draft program and proposals (see endnote 2) and should be sent to Cr Gary J Poidevin, Mayor, Corowa Shire Council, PO Box 77, Corowa, NSW 2646.

 
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