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Second Reading Speech
Constitution Alteration
(Establishment of Republic) 1999
10 June, 1999
Introduction
I place before the House today a Bill to provide the basis
for a referendum on whether Australia should become a republic.
The Prime Minister made a commitment to the Australian
people at the close of the 1998 Constitutional Convention that the Government would put
the Convention’s model for an Australian republic to a referendum in 1999.
The Government aims to meet that commitment by putting
before the Australian people on 6 November the proposal for constitutional change that I
have introduced today.
As a Government, we recognise that the Australian
Constitution has served Australia well.
It binds our nation together.
It has established a stable federal framework of government
and endures as the foundation for our democratic institutions.
It is precisely because the Constitution has served us so
well, and proven so durable, that constitutional change must not be undertaken lightly.
However, as a Government, we recognise that the Constitution
is not immutable, and was never intended to be.
As Sir Robert Menzies recognised, the Constitution is not a
social or political straitjacket inhibiting consideration of change in a changing world.
In providing for its own alteration in section 128, the
Constitution looks to the future and acknowledges the possibility of change.
It gives the Australian people the right, and the
responsibility, to decide whether there shall be change. In the referendum procedure, it
provides what is arguably the most rigorously democratic mechanism for constitutional
change to be found in any national constitution. A majority of electors must vote in
favour of change. In addition, there must be a majority vote in a majority of States.
It might once have been thought that the preamble to the
Imperial Act which originally set out our Constitution, in referring to a federation under
‘the Crown of the United Kingdom of Great Britain and Ireland’, could preclude a
decision by Australians that Australia should become a republic. However, this is no
longer credible.
Similarly, the idea that a republic might be established by
legislation of the United Kingdom Parliament is no longer credible. It ignores the reality
of Australia as an independent nation.
At the end of the twentieth century, the question whether
Australia should become a republic is one for Australia and Australians.
The Republic Debate and
the Constitutional Convention
Whether or not Australia should become a republic has been
the subject of discussion over a number of years.
The Prime Minister recognised this when, in March 1997, he
announced the Government’s plan for a Constitutional Convention.
The Prime Minister said that the Convention would provide an
opportunity to involve the Australian people in discussing whether or not Australia should
become a republic.
It would be a forum for all voices in the debate.
One hundred and fifty two delegates attended the Convention,
which met for ten days here in Canberra, in Old Parliament House.
Half of the delegates were elected and half were appointed.
The reason for the Convention was quite clear. It was to
provide a forum for discussion about whether or not our Constitution should be changed to
establish an Australian republic. Three questions were identified for the Convention:
- whether or not Australia should become a republic;
- which republic model should be put to the electorate to
consider against the status quo; and
- in what timeframe and under what circumstances any change
might be considered.
The Government recognised that there are sincerely held
views – in the Parliament and across the broader community – on both sides of
the debate.
The Government’s objective was to allow the Convention
to explore these views constructively, in full public view, and to consider which republic
model could be put against the existing constitutional arrangements at a referendum.
The Prime Minister announced at the time that if clear
support for a particular republic model emerged, that model would be put to a referendum
in 1999. He proposed that, if the republic model were supported at a referendum, the new
arrangements be in place for the centenary of Federation on 1 January 2001.
The model which clearly attracted the greatest support at
the Convention involves a president appointed by a two-thirds majority of the Commonwealth
Parliament. At the close of the Convention, the Prime Minister made a commitment to put
that model to the people. That commitment was re-stated in last year’s election
campaign.
Developing the
referendum legislation
In March this year the Government released exposure drafts
of the referendum legislation relating to the republic model: the Constitution Alteration
(Establishment of Republic) 1999, which I shall refer to as the Republic Bill; and the
Presidential Nominations Committee Bill 1999, which I shall refer to as the Nominations
Committee Bill.
In developing the drafts of these Bills, the Government has
been concerned to flesh out the republic model endorsed by the Convention, but not to go
beyond what is necessary to implement that model.
The Government’s aim has been to develop a workable
proposal, which has broad support as an appropriate legislative expression of the
Convention model.
It was therefore important to provide the States and
Territories, the Opposition and other political parties, and interested groups and
individuals with an opportunity to have a say in relation to the development of the
proposal.
It is for that reason that the Government decided to release
its legislation as exposure drafts for public comment.
And the Government has been very pleased to receive careful
and considered submissions on the exposure drafts.
One hundred and eleven submissions were received on the
legislation relating to the republic model.
On behalf of the Government, I would like to thank all of
those who contributed their ideas and opinions. Those contributions have been of real
assistance in the process of refining the referendum proposal and have borne out the
importance of public involvement and consultation.
The Republic Bill and the Nominations Committee Bill have
been revised in light of the submissions received, and the revised Bills are introduced
today.
In developing this legislation, the Government’s aim
has been to ensure as far as possible that the Australian people are presented with a
safe, workable proposal for a republic that continues our traditions of stable,
parliamentary democracy.
The object of the Republic Bill is to give Australia an
Australian head of state who can fit in to our current arrangements in place of the Queen
and her representative in Australia, the Governor-General.
The Nominations Committee Bill is not a constitutional
amendment but a Bill for an ordinary Commonwealth Act. It provides in more detail for the
establishment and role of the nominations committee, filling in the very broad outline
provided by the Constitutional Convention.
The Convention resolved that the process for community
consultation and evaluation of nominations is likely to evolve with experience and is
best-dealt with by ordinary legislation or parliamentary resolution.
As this Bill would not alter the Constitution it would not
have to be approved at a referendum.
Nonetheless, it is likely to be of great interest because,
in the event that change to a republic is approved at the referendum, it would provide the
means by which the Australian people could be involved in selecting a President.
I shall return to the Nominations Committee Bill in my
second reading speech for that Bill.
Public information
activities
The Government proposes to give the Australian people every
chance to understand the proposal on which they will be asked to vote.
A public education programme scheduled for September will
alert people to the approaching referendum, remind them of the issues and provide them
with balanced information in an accessible form.
Educational material will be distributed which explains the
republic model, the existing constitutional arrangements, the implications for State
constitutions and the referendum process.
The Government has established an expert panel, chaired by
Sir Ninian Stephen, to provide advice on the educational material to ensure that it is
fair, balanced and accurate.
The Government has also established Yes and No advertising
campaign committees, drawn from delegates to the Constitutional Convention, to plan and
manage robust national advertising campaigns for and against the republic proposal in the
final weeks leading up to the vote.
In addition, the Australian Electoral Commission will
distribute to all electors Yes and No cases prepared by Parliamentarians, in accordance
with the Referendum (Machinery Provisions) Act 1984.
The Republic Bill
I shall now briefly turn to the specific provisions of the
Republic Bill.
The Bill comprises 3 technical clauses and 3 schedules,
which follow closely the Convention model.
The Bill would establish Australia as a republic from 1
January 2001, with an Australian citizen as head of state. The head of state would be
called the President.
Schedule 1 would establish the office of President and
entrench elements of a mechanism for choosing the President.
Under this mechanism, a committee would be established to
invite and consider public nominations for President. The Prime Minister would consider a
report from the committee before putting forward a single nomination to a joint sitting of
both Houses of the Commonwealth Parliament. The nomination would take effect if seconded
by the leader of the Opposition and approved by a two-thirds majority of all the members
of the Commonwealth Parliament.
The Constitution would require the nominations committee to
be established and operate as provided by the Parliament.
Only Australian citizens qualified to be elected as members
of the Commonwealth Parliament could be President. A person could not be President if he
or she were currently a member of the Commonwealth Parliament or a State or Territory
legislature, or a member of a political party.
Before taking office, a person chosen as President would be
required to make an oath or affirmation of office.
The President would have the powers, including the reserve
powers that the Governor-General has now. And the Constitutional conventions that now
apply to the exercise of the reserve powers by the Governor-General would apply to the
exercise of those powers by the President.
The President’s term of office would be five years.
The Prime Minister could remove the President by issuing a
written instrument of removal. The grounds for removal are not specified. The Prime
Minister would be required to seek the approval of the House of Representatives for that
action within 30 days, unless an election were called and the matter taken directly to the
people.
Schedule 2 sets out consequential amendments of the
Constitution that would be required to alter Australia’s system of national
government from a constitutional monarchy to a republic.
Many consequential and transitional issues can be addressed
by ordinary legislation or administrative action. Those that must be dealt with in the
Constitution are set out in Schedule 2. Most of these are concerned with the removal of
monarchical references from the Constitution. Almost all references to the Queen, the
Governor-General and the Crown would be removed.
The Government does not regard the Bill as an opportunity to
generally tidy up the Constitution. Spent provisions of the Constitution would be altered
or removed only where they refer specifically to the monarchical system of government.
Schedule 3 would add a schedule to the Constitution setting
out provisions aimed at facilitating the transition from constitutional monarchy to
republic with minimum disruption to existing institutions and arrangements.
The new schedule to the Constitution would make provision to
ensure the continuity of existing institutions; and the continuity of legislative,
executive and judicial action undertaken before the transition to a republic.
It would make provision for choosing the first President
before the commencement of any republic on 1 January 2001; and for enacting legislation in
the transitional period, so that the first President could take office immediately on the
commencement of the republic.
It would also make provision to put beyond doubt that
transition to a republic would not jeopardise the continuity of the Federation or the
co-ordinated operation of the Australian system of law. Provision has also been included
to ensure that the constitutional conventions relating to the exercise of the reserve
powers are not stopped from evolving in the way that has been possible since Federation.
Commonwealth/State
Co-ordination
A significant practical issue in any change will be
co-ordination between change at the Commonwealth and State levels.
Change to a republican form of government would involve
State constitutional arrangements, and in some cases a State referendum would be required.
In others, the State government may decide that a referendum should be held, even though
it is not required.
The Constitutional Convention resolved that, while it would
be desirable for any republican arrangements to commence simultaneously in the
Commonwealth and all the States, not all States may wish or be able to move to a republic
within the Commonwealth’s timeframe.
On that basis, the Convention resolved that the Government
should consider whether specific provision would be required to enable States to retain
their current constitutional arrangements following any change at the Commonwealth
level.
The Convention was of the view that the Commonwealth should
not dictate State Constitutional arrangements in the event that the Australian people
voted for a republic. It recommended that a referendum be held first on whether the
Commonwealth should adopt a republican form of government, and that the States then make
any necessary arrangements for change at State level.
The Republic Bill would not force the States to change.
But the Government is firmly of the view that, if change is
endorsed at the referendum, it would be best for change to occur simultaneously in the
Commonwealth and all States. The Prime Minister has written to all Premiers seeking their
firm agreement that, should the Australian people vote for change to a republican form of
government, their governments will do everything within their power to facilitate
simultaneous change at Commonwealth and State levels.
Provisions in Schedule 3 of the Bill – which were
settled only after considering closely State comments and concerns – would ensure
that no State would be confronted by technical barriers if and when it sought to change in
accordance with its own constitutional requirements.
In particular, these provisions would give the Commonwealth
Parliament a ‘fall back’ power to amend the Australia Acts to rule out any
argument that those Acts entrench Crown links at the State level.
This is not intended to allow Commonwealth legislation to
directly affect the State links or change the processes a State would follow to amend its
constitution. Instead, it would merely ensure that the States could proceed with
confidence in their own processes for considering change.
The Commonwealth would not need to rely on this power if all
the States were to pass legislation under the Australia Acts requesting the necessary
amendment.
The States have indicated that the latter is their preferred
approach and that they aim to enact request legislation by the end of July. Consideration
will be given to removing the fall back power altogether if all the States are able to
pass that legislation by the time the Republic Bill is finally debated.
But unless all States have enacted suitable request
legislation by that time, the fall back provision must be retained. Without it, the risk
is that if one State fails to secure passage of its request legislation the Commonwealth
would be unable to amend the
Australia Acts for the benefit of any State.
Conclusion
The Government’s aim is, as far as possible, to present
the Australian people with a republic model of government which is consistent with the
outcomes of the Constitutional Convention and is a workable proposal that continues our
tradition of stable parliamentary democracy.
It is already a matter of public record that sitting Liberal
Party members will be allowed a conscience vote in the referendum.
Some members of the Government are likely to vote against
change at the referendum and others are likely to vote for it.
The Government is united, however, in its commitment to let
the Australian people vote on the issue.
We are confident that the proposed legislation is a fair and
effective expression of the Convention’s model, and an appropriate basis for the
question that will go to the Australian people.
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Second
Reading Speech
Presidential Nominations Committee Bill 1999
10 June, 1999
Introduction
Earlier today I placed before the House a Bill to provide
the basis for a referendum on whether Australia should become a republic: the Constitution
Alteration (Establishment of Republic) 1999, which I shall refer to as the Republic Bill.
The Republic Bill sets out the changes to the Constitution
necessary to establish a republic based on the Constitutional Convention’s preferred
model.
Those changes include a new section 60 establishing a
mechanism for choosing a President.
Under this mechanism, a committee would be established to
invite and consider public nominations for President. The Prime Minister would consider a
report from the committee before putting forward a single nomination to a joint sitting of
both Houses of the Commonwealth Parliament. The nomination would take effect if seconded
by the leader of the Opposition and approved by a two-thirds majority of all the members
of the Commonwealth Parliament.
However, the Prime Minister could present that nomination
only after considering the report of a committee established for the purpose of inviting
and considering public nominations.
The Bill I now place before the House – the
Presidential Nominations Committee Bill 1999 – would provide for the establishment
and operation of such a committee.
The Convention resolved that the process for community
consultation and evaluation of nominations is likely to evolve with experience and is best
dealt with by ordinary legislation or parliamentary resolution.
Accordingly, the Bill is not a Bill for a constitutional
amendment, but a Bill for an ordinary Commonwealth Act.
It provides in more detail for the establishment and role of
the nomination committee.
In doing so, it fleshes out the very broad outline provided
by the Constitutional Convention.
As this Bill would not alter the Constitution it would not
have to be approved at a referendum.
Indeed, the Government does not propose that this Bill be
passed before the outcome of the referendum is known.
In the event that the people approve the establishment of a
republic, the Republic Bill would authorise the passage of the Presidential Nominations
Committee Bill in the year 2000, in time for the commencement of the republic on 1 January
2001.
Passage of the Bill in the year 2000 would enable the first
President to be chosen in that year, so that he or she may take office on 1 January 2001.
The Bill is likely to be of great interest because it
provides the means by which the Australian people can be involved in selecting a
President.
The Convention Model
The Convention made recommendations about how the Committee
should be composed and operate.
It said that the committee should be of a workable size and
should have a balance between parliamentary and community members.
It said that all parties with party status in the
Commonwealth Parliament should be represented on the committee and the composition of the
committee should take into account so far as practicable considerations of federalism,
gender, age and cultural diversity.
The Convention said the committee should be mindful of
community diversity in the compilation of a shortlist of candidates for consideration by
the Prime Minister.
Finally, it recommended that no nomination be disclosed
without the consent of the nominee.
The Bill is consistent with these recommendations.
It provides a framework for the establishment and operation
of the committee without going unnecessarily into matters of detail.
It would, of course, be open for Parliament to make
additional provision if that were seen to be appropriate in the light of experience.
The Nomination Procedure
The Convention described the objective of the nomination
procedure as being ‘to ensure that the Australian people are consulted as thoroughly
as possible’.
It said that the process of consultation should involve the
whole community, including State and Territory Parliaments, local government, community
organisations and individual members of the public, all of whom should be invited to
provide nominations.
The Bill would allow these objectives to be met, both
through the composition of the committee and through the nomination procedure.
Any Australian citizen or group of citizens would be able to
nominate a person as President.
Nominations would have to be accompanied by the
nominee’s written consent.
Establishment of the
Committee
The Bill provides for a Presidential Nominations Committee
to be established whenever it is necessary to choose a person as President.
A Committee could be established some months before the end
of the incumbent President’s term so that a new President could be chosen and be
ready to take office at the end of that term.
However, if a President resigned or died in office or was
removed, it can be expected that a Committee would be established as soon as possible
after the office became vacant.
Composition of the
Committee
Under the Bill, a Presidential Nominations Committee
comprises 32 members. Members would be formally appointed by the Prime Minister, but the
appointments would have to be made in accordance with rules set out in the Bill.
There would be 8 Commonwealth members, drawn from the
Commonwealth Parliament.
To start with, each political party with 5 members or more
in the Commonwealth Parliament would be entitled to one place on the Committee.
If there were more than 8 parties with at least 5 members,
the 8 places on the Committee would go to the 8 parties with the highest number of
members.
If places remained after this formula was applied, the
parties with at least 15 members would be offered second and any subsequent places in
turn, starting with the largest party.
In addition, there would be 8 State or Territory members,
comprising one member of each State legislature and one member of each of the Northern
Territory and Australian Capital Territory Legislative Assemblies.
These members would be nominated by the legislatures.
There would also be 16 community members, appointed by the
Prime Minister, who would not be members of any legislature.
The Prime Minister’s broad discretionary power to
appoint community members, together with the large number of community members, permits
the Prime Minister to appoint a diverse membership.
The Prime Minister would, of course, take account of the
diversity of the Australian community in appointing community members.
Functions of the
Committee
The functions of the Committee are to invite and consider
nominations for appointment as President of the Commonwealth of Australia and to give a
report on the nominations – including a short list – to the Prime Minister.
Confidentiality
The Bill contains provisions designed to ensure the
confidentiality of nominations and material received in connection with nominations.
Those provisions are intended to prevent the disclosure of
nominations except with the consent of nominees, as recommended by the Constitutional
Convention.
Conclusion
The Bill fills in the broad outline for a Presidential
Nominations Committee provided by the Constitutional Convention.
If the Republic Bill is approved by the people at the
referendum, the Government will seek passage of the Presidential Nominations Committee
Bill 1999 shortly afterwards.
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CLERK
of the SENATE
SENIOR REPUBLICAN OF INTEGRITY CRITICISES THE
'MODEL'
Republican Mr Harry Evans, Clerk of the Senate
and Australia's most senior Parliamentary officer lists his adverse comments on the
proposed 'Republic Model'. He describes the 'Model' as being "the
most ridiculous Constitutional alteration proposal I have ever heard of" - "NO other republic has such an arrangement"
- "NO other country has been so misguided as to adopt such
an obviously unbalanced arrangement"
hc/misc/12280
10 June 1999
COMMENTS ON
CONSTITUTION ALTERATION (ESTABLISHMENT OF REPUBLIC) 1999
- The long title (at the very beginning of the
bill) is what the electors are asked to approve when they vote (the question put to them
is: Do you approve this proposed alteration?). The long title is misleading in that it
mentions that the President would be chosen by a two-thirds majority of the members of the
Commonwealth Parliament, but does not mention that the President would be liable to be
dismissed by the Prime Minister at any time and could be kept in office indefinitely at
the Prime Minister’s discretion (see (4) below).
- The unspecified reserve powers of the
Governor-General (s59, p. 3), hitherto matters only of convention, would be fixed in the
Constitution, unalterable except by a further referendum, and presumably justiciable. In
the event of any dispute, the High Court could be called upon to engage in an exploration
of British history to determine what the reserve powers were in 1901 and prior to the
alteration of the Constitution, only to find that there was no agreement as to what the
reserve powers were. The consolation is that a President dismissible by the Prime Minister
is unlikely ever to exercise the reserve powers, however justified their exercise might
be. The provision for the reserve powers to "evolve" (schedule 3, s8, p. 16)
would only confuse the issue.
- If the Prime Minister’s motion for the
appointment of a President were not approved, no President would be appointed (s60, pp
3-4). It could well suit a Prime Minister to leave the office vacant, or to threaten to do
so to ensure agreement to the nomination.
- The President would not have a fixed term, but an
indefinite term ending only on death, resignation or dismissal by the Prime Minister (s61,
p. 4). A Prime Minister could keep a compliant President in office indefinitely, and
ensure that compliance by offers of continuation of the presidential term.
- No grounds are specified for the Prime Minister to
remove a President (s62, p. 5). A Prime Minister, in dismissing a President who had
offended the prime ministerial ego, could claim that there were
undisclosable grounds of a
scandalous nature for the removal, and neither the dismissed President nor the public
would be able to test such a claim.
- There is no requirement for the Prime
Minister’s notice dismissing a President to be made public at any time (s62, p. 5).
There would therefore be no opportunity for the public to attempt to ascertain, for
example, whether the Prime Minister had been carrying around with him an undated or
backdated dismissal notice.
- No provision is made (s62, p. 5) for the situation
of the Parliament being prorogued at a time when a dismissal of a President occurs. A
Prime Minister could prorogue the Parliament for several months, dismiss the President and
then claim that there was no obligation to consult the House because it could not meet.
There should be provision for both Houses to be recalled in case of a dismissal. If there
were a dissolution before or in conjunction with a dismissal, the Prime Minister would be
a dictator during the election period.
- There would be no consequences arising from a lack
of House of Representatives approval of a dismissal of a President (s62, p. 5). In the
unlikely event that the House, controlled by the Prime Minister, disapproved of the Prime
Minister’s action, nothing would follow, thereby demonstrating the impotence of the
House and the total power of the Prime Minister.
- The Prime Minister could dismiss all of the persons
specified as acting Presidents by serial dismissal notices (s63, pp 5-6). Any acting
President unacceptable to the Prime Minister could be passed over by a dismissal notice.
- The Prime Minister would be the sole judge of any
incapacity on the part of a President (s63, p. 5), and so could suspend a President at
will.
- A Prime Minister could keep a President who offended
the prime ministerial ego out of the way (for example, by overseas trips) and ensure a
more compliant holder of the presidential office by exercising the power to appoint
deputies (s63, pp 5-6).
- The royal prerogative would be fixed in the
Constitution and could be altered only by legislation requiring the Prime Minister’s
approval (s70A, p. 6). Monarchical powers, in reality held by the Prime Minister, would be
perpetuated, not altered.
_________________________
PRESIDENTIAL NOMINATIONS COMMITTEE BILL
- The Prime Minister would have exclusive control over
appointments to the Nominations Committee (cl 8-12, pp 5-6); the only limitation would be
that party and state parliamentary appointees would have to be the nominees of the party
or parliament concerned. The Prime Minister would "have the numbers" on the
committee, even without his own party supporters, by appointing the non-politician members
who would make up half the membership, and by appointing the Convenor, who would have a
casting vote (cl 6, 11, 12, pp 3, 6).
- The Prime Minister would determine the terms and
conditions of members of the Nominations Committee, other than those determined by the
Remuneration Tribunal or by regulation (cl 14, p. 7). By not making any regulations, the
Prime Minister would have virtually complete control over the terms and conditions.
- The Prime Minister could dispose of any unfavourable
members of the Nominations Committee by arranging for them to be nominated as president
(cl 15, p. 7).
- The Prime Minister could allow the Nominations
Committee to function with up to 16 vacancies (cl 17, p. 8). By manipulating vacancies,
the Prime Minister could doubly ensure that he "has the numbers" on the
committee.
- The nomination process would be entirely secret
(part 5, pp 11-12). The public would have no way of judging whether the Prime Minister has
picked the best nominee or, indeed, whether the Prime Minister’s choice was nominated
at all. There would seem to be no good reason why the names of all nominees should not be
made public.
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