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AUSTRALIAN REPUBLIC REFERENDUM

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PAGE INDEX

Constitution Alteration (Establishment of Republic) 1999

Presidential Nominations Committee Bill 1999

Comments by the Clerk of the Senate - Mr Harry Evans

 

Republic Referendum Documents

 

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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:

  1. whether or not Australia should become a republic;
  2. which republic model should be put to the electorate to consider against the status quo; and
  3. 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

  1. 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).

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. 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.

  8. 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.

  9. 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.

  10. 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.

  11. 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).

  12. 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

  1. 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).

  2. 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.

  3. 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).

  4. 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.

  5. 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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