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CONSTITUTIONAL CONVENTION PROPOSAL

The following paper proposed a possible solution for an equitable
result for both sides of the debate at the Constitutional Convention
by
Nick Hobson

Index
Proposed outcome for the Constitutional Convention
  1. Head of State
  2. Powers of the Governor-General
  3. Changing the Powers
  4. Options
  5. McGarvie Model
  6. An Australian Head of State
  7. Changes required and an Alternative
  8. The Convention
  9. Conduct of a plebiscite
  10. The Proposal
  11. Summary
  12. Conclusion
  13. Recommendation
Proposed amendment to the Australia Act 1986
  1. Introduction
  2. Proposed Amendment
  3. Schedule

Head of State

The term "Head of State" is not mentioned any where in the Australian constitution or in any other of Australia's constitutional documents. That said, the term is generally acknowledged in the diplomatic world as meaning that person who holds the highest office within a country's constitution. Accordingly, the Queen of Australia is nominally Australia's Head of State. However, and depending on one's interpretation, this role is held and exercised by the Governor-General who, in accordance with Section 2 of the Constitution, is Her Majesty's representative in Australia. Section 2 of the Constitution also provides for The Queen, but subject to the Australian constitution, to assign such powers and functions of the Queen as Her Majesty may be pleased to assign the Governor-General.

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Powers of the Governor-General

One aspect, and possibly the most important thing to consider, when addressing any change to Australia's Head of State arrangements is the question of the powers currently held by the Governor-General. The powers can be briefly described as follows:
  1. Those powers contained in the constitution which the Governor-General in Council is required to act with the advice of the Federal Executive Council,

  2. All other powers contained in the constitution which the Governor-General acts, by unwritten convention,on the advice of the Federal Executive Council,

  3. The reserve powers which are not contained in the constitution and which are not codified in writing but some of which are undertaken in accordance with convention, and

  4. Any other powers and functions of the Queen, but subject to the constitution, as Her Majesty may be pleased to assign the Governor-General in accordance with Section 2 of the Constitution.

These powers, whilst enormous, are difficult for a Governor-General to abuse in that:
  1. the Governor-General's office is a representational role and thereby the Governor-General acts in accordance with long-held conventions undertaken by the crown, and

  2. the Governor-General's commission may be withdrawn instantly by the Queen on the advice from the Prime Minister.

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Changing the Powers

It is highly unlikely that any republican constitution could retain the power structure currently enjoyed in the Australian constitution. While acknowledging that there may be several ways of changing the power structure for a republic with a President as Head of State there are, essentially, only the following possibilities:
  1. Leave the power structure as it precisely is now for a president which would give the president enormous if not dictatorial powers,

  2. Change the power structure, to include the reserve powers, so that the president would be required to act on the advice of the Federal Executive Council at all times in respect of all powers, or

  3. Change the power structure, to exclude the reserve powers, so that the president would be required to act on the advice of the Federal Executive Council at all times in respect of all powers except for the application of the reserve powers as proposed in the Keating, Turnbull, Winterton and Teague models.

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Options
  1. Most Australians would find the first option in 3A untenable especially if the president were to be popularly elected. Additionally, this option would more than likely set up grounds for a power struggle between the President and the Prime Minister - a situation that is unlikely to happen with the current constitution.

  2. The second option in 3B involves a total shift of the powers which begs the question "Who gets these powers?" The answer is "the Federal Executive Council." This is a subliminal and massive change of powers in favour of the Prime Minister and cabinet - something that most Australians would not want if they really understood the consequences of such a change. Indeed, if there were to be a ministry of two or perhaps even one, and noting the precedent for a ministry of two has already been established by former Prime Minister Whitlam, this scenario may deliver a dictatorial Prime Minister who could also become the de facto Command in Chief of the Defence Forces 

  3. Option 3C also offers a similar subliminal and significant shift of powers from that previously held by the Governor-General to the Federal Executive Council with the exception of the reserve powers. This option still provides for an extensive increase in powers to the Federal Executive Council but less than that in the case of 3B. It should also be noted here that, unless the reserve powers are codified, a repetition of the events of 11 November 1975 could still occur. This aspect, and the fact that the reserve powers would be difficult to codify, was acknowledged by Paul Keating in his speech to the Parliament on 7 June 1995.

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McGarvie Model

Another, but not as well known, possibility is the option suggested by the former governor of Victoria, The Hon Richard McGarvie. Briefly, this option involves the establishment of a constitutional council, consisting of several eminent people such as former Governors-General, Governors and Chief Justices, which would replace the role of the Queen while the President would replace the role of the Governor-General. While apparently solving the power problem, it could well be argued that this is an academic approach to a practical problem. Interestingly, the application or functionality of this concept has not been demonstrated in any draft republican proposal by Mr. McGarvie. Therefore, it is difficult to comprehend its practicality or vulnerability when placed alongside the current constitution. This proposal also invokes a streak of elitism in that membership of such a council is highly restricted. This appears to be at odds with the chant of republicans that any Australian citizen should be able to become Head of State. Given this mantra, republicans may find it difficult to accept that membership of such a council should be restricted in any way what-so-ever. Comprehension of this power dilemma by Australians has been limited due to the preoccupation by some groups advancing the more emotive mantra of "we must have an Australian Head of State" to the exclusion of other more important issues that relate to the republican debate.

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An Australian Head of State

Given that the Australian constitution does not make provision for a Head of State role must beg the question "Do we need one?" Australia seems to have survived extraordinarily well without this position. However, acknowledging that there is possible perception for such a role to be formally established then the next question that must be asked is "How can this be done?" To some Australians, the most obvious solution calls for the establishment of a republic which would, by necessity, involve manipulation to the powers which would not guarantee the continuity of our current stable power structure. Other options for consideration which would not affect the balance of power are:
  1. alter the constitution (as proposed by Mr Tony Abbott MP) to establish the role of Head of State and for the Governor-General to hold and exercise that role as Her Majesty's representative except for when the Queen is personally in Australia,

  2. alter the Letters Patent relating to the office of Governor-General in accordance with Section 2 of the constitution to establish the role of Head of State and for the Governor-General to hold and exercise the office of Head of State as Her Majesty's representative except for when the Queen is personally in Australia,

  3. establish an Act of the Parliament of the Commonwealth of Australia (as proposed by Mr Tony Abbott MP) to establish the role of Head of State and for the Governor-General to hold and exercise that office as Her Majesty's representative except for when the Queen is personally in Australia, and

  4. amend the Australia Act 1986 to establish the role of Head of State, not only of the Commonwealth of Australia, but also of each of the States of the Commonwealth of Australia and for the Governor-General to hold and exercise that office except for when the Queen is personally in Australia.

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Changes Required and an Alternative

It goes with out saying that if Australia were to become a republic it would require some 70 changes to numerous clauses within the Constitution itself. It would also require changes to the Constitution Act, The Statute of Westminster Adoption Act 1942/Statute of Westminster 1931, The Australia Act 1986 as well as repealing numerous other Acts. State Constitutions would, more than likely , also require change. Regardless of the question of powers raised earlier, changes for a republic to take effect would be significant. Alteration to the Constitution itself or the establishment of an Act of the Parliament of the Commonwealth as proposed by Tony Abbott, MP may hold the answer but do not involve the States which, given that Australia is a federation, should be included. Similarly, altering the Letters Patent relating to the office of Governor-General would also lack State involvement and would not offer any security of tenure as any Prime Minister could subsequently ask Her Majesty to override such changes at a later date. A further alternative may be to amend the Australia Act 1986 which would involve the States. This would offer a minimalist change in that only an amendment would be required albeit that this option would require either the support of all of the State parliaments or the conduct of a referendum. This option also offers an opportunity to include the provisions of the Royal Powers Act 1953 and the Royal Style and Titles Act 1973 which would cement further State involvement in respect of the role of the Crown in each of the Federal and State constitutions. It would also ensure that any future proposal to move to a republic would ensure total involvement by the states rather than it be just a federal initiative. Surely, it makes sense that if Australia were to become a republic it should be accomplished fully to include the states rather than in a mish-mash fashion. Alteration to the Australia Act 1986 would ensure such an inclusive change.

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The Convention

The Constitutional Convention to be held in February, 1998 has been established to determine whether or not Australia should become a republic and if so what model should be recommended to the Australian people. Alteration to the current constitution to effect such change will require a majority of people in a majority of states approve any such amendment. However, the Constitution Act, The Westminster Adoption Act 1942/Statute of Westminster 1931 and the Australia Act 1986 will also require extensive change as established by the Republican Advisory Committee (Final report, Appendix 8). This will require a special one-off change to Section 128 of the Constitution to allow the Government to make the necessary changes with the exception that no authority should be given to the Government to make any change whatsoever to the Constitution itself within that single authority. Accordingly, the required overall changes to the constitution and the other several constitutional documents are demonstrably significant.

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Conduct of a plebiscite

The Government is also committed to the conduct of a plebiscite some time after the convention should a consensus not be established. There is an aspect about the conduct of a plebiscite that should be considered carefully. That is, if a plebiscite shows that a majority of Australians wish to have a republic, the government could be faced with the prospect of the republic being rejected at a subsequent referendum. This situation could occur because an indicative plebiscite to give the government approval to proceed with a referendum may only be passed by the smallest of majorities i.e. 50.01%. However, a referendum itself, which will also require a majority of states to approve, may not be endorsed. This would present a predicament of Gilbertian proportions to the rest of the world as well as embarrass those who seek the establishment of a republic. Noting that all of the 8 referenda passed to date have achieved more than 54.38% Australia-wide, 4 additional proposed referenda, which achieved more than 50% overall, did not gain the necessary majority of states in each case. Sustained polling for the republic issue to date has not yet achieved more than 54.38% which may not guarantee endorsement. While it is acknowledged that a referendum could be passed with the smallest of margins it may require that each of the 6 states approve the referendum. Historically, this seems an unlikely event.

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Proposal

Accordingly, it may be more expedient to establish at the convention that a process of double referenda be held. Under this proposal the first referenda could be used to establish whether the government should:
  1. be authorised to prepare a draft republican constitution in accordance with any such proposal that may be agreed to by a consensus at the constitutional convention AND authorise the government, in accordance with Section 15 (3) of the Australia Act 1986, to prepare for the necessary changes to Section 128 of the Constitution that will enable the government to change the Australia Act 1986, The Statute of Westminster Adoption Act 1942/Statute of Westminster 1931 and the Constitution Act - but not The Constitution - to ensure that all constitutional documents relating to the republican proposal are changed simultaneously at the second and final referendum , or

  2. leave the constitution unchanged AND authorise the government, in accordance with Section 15 (3) of the Australia Act 1986, to make the necessary change to Section 128 of the Constitution to enable the government to amend Section 7 of the Australia Act 1986 in accordance with the proposed amendmentattached at the end of this paper.

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Summary

The net effect of this proposal would be that in the case of 10(A), the people of Australia would, via a legitimate referendum and without any ambiguity, authorise the government to proceed for the finalisation of a republican constitution along with the authority to change all other related constitutional documentation to be put to the people at a second and final referendum. In the case of 10(B), the people would legally authorise the government to retain the existing constitution unchanged and to simply amend the Australia Act 1986 in accordance with theattached proposal. This is also the most cost-effective option in that no further referendum would be required. However, should there be a consensus at the convention to retain the existing constitution but also make provision for the role of "Head of State" by amending the Australia Act 1986 as proposed, then the Federal Government could request that the State Parliaments ask the Federal Government to make such a change thereby negating any need for a referendum which would reduce costs even further. This unique option not only gives the people the opportunity to retain their current constitution without change but also allows for the establishment of the role of Head of State within the Australia Act 1986 without demeaning the role of the crown. The option for a republic is also unequivocally given. This process also offers common ground to both constitutional monarchists and republicans alike in that it gives both sides of the debate the opportunity to put its case forward for the adoption of an Australian Head of State structure within the beliefs of each philosophy. As stated earlier, Section 2 of the constitution allows for the Governor-General to have and exercise in the Commonwealth during the Queen's pleasure, but subject to the constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to the Governor-General. Therefore, the Queen may assign the Head of State function to the Governor-General except for when the Queen is personally in Australia.

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Conclusion

Noting the existing plan, current opinion polls indicate that the government may have to proceed with a plebiscite followed by a referendum . The pitfalls of holding a plebiscite, as established in paragraph 16, indicates that a two-referendum process would be more indicative of an equitable outcome for both sides of the debate. Additionally, the cost of a plebiscite and a referendum compared with the cost of two referenda would be identical. Therefore, it would be preferable to adopt the double referenda option which would provide for a more authentic extraction of public opinion to undertake constitutional change or otherwise.

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Recommendation

Recommendation is that the following process be proposed at the convention:
  1. Conduct a double referendum process to establish whether or not Australians wish to proceed with the republic option.

  2. Hold the first referendum to establish whether or not Australians wish to:

  1. proceed with the republic option as outlined in sub-paragraph 10(A), or

  2. retain their current constitution unchanged and authorise an amendment to the Australia Act 1986 to establish the role of Head of State as outlined in sub-paragraph 10(B).

In the event that Australians wish to proceed with the republican option a second referendum would then be held to actually approve the draft republican constitution and changes to or repeal of the other several, related constitutional documents. A second referendum would not be required in the event that Australians wish to retain their current constitution along with the proposed amendment to the Australia Act 1986.

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Proposed Amendment to the Australia Act 1986

Introduction

It is proposed that Section 7 of the Australia Act be amended to read as follows:

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Proposed Amendment (To the Australia Act 1986):

Powers, functions and qualifications of Her Majesty, the Governor-General and Governors7. - - -
  1. The Royal Powers Act 1953 and the Royal Style and Titles Act 1973 are hereby repealed.

  2. The office of Head of State of the Commonwealth of Australia, and of the States and Territories of the Commonwealth of Australia shall be held and exercised by the Governor-General at all times except for when the Queen is personally present in Australia.

  3. The office of Governor-General and the offices of each State Governor shall only be held by Australian citizens.

  4. Exercise of statutory powers by the Queen in respect of the Parliament of the Commonwealth shall be as follows:

    1. At any time when the Queen is personally present in Australia, any power under an Act exercisable by the Governor-General may be exercised by the Queen.

    2. The Governor-General has the same powers with respect to an act done, or an instrument made, granted or issued, by the Queen by virtue of this section as the Governor-General has with respect to an act done, or an instrument made, granted or issued, by the Governor-General himself/ herself.

    3. Nothing in sub-section (4) affects or prevents the exercise of any power under an Act by the Governor-General.

    4. In sub-section (4), references to the Governor-General or to the Queen shall be read as references to the Governor-General, or to the Queen, acting with the advice of the Federal Executive Council.

  5. The Royal Style and Titles for the Queen of Australia.

    1. The assent of the Parliament is hereby given to the adoption by Her Majesty, for use in relation to Australia and its Territories, in lieu of the Style and Titles set forth in the Schedule to the Royal Style and Titles Act 1973, of the Style and Titles set forth in the Schedule to this Act, and to the issue for that purpose by Her Majesty of Her Royal Proclamation under such seal as Her Majesty by Warrant appoints.

    2. The Proclamation referred to in sub-section (a) shall be published in the Gazette and shall have effect on the date upon which it is so published.

  6. The powers and functions of Her Majesty and Governors in respect of States shall be as follows:

    1. Her Majesty's representative in each State shall be the Governor.

    2. Subject to subsections (c) and (d) below, all powers and functions of Her Majesty in respect of a State are exercisable only by the Governor of the State.

    3. Subsection (b) above does not apply in relation to the power to appoint, and the power to terminate the appointment of, the Governor of a State.

    4. While Her Majesty is personally present in a State, Her Majesty is not precluded from exercising any of Her powers and functions in respect of the State that are the subject of subsection (b) above.

    5. The advice to Her Majesty in relation to the exercise of the powers and functions of Her Majesty in respect of a State shall be tendered by the Premier of the State.

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Schedule

Royal Style and Titles

Elizabeth the Second, by the Grace of God Queen of Australia
and Her other Realms and Territories, Head of the Commonwealth.

Note:

The name of the King or Queen of the United Kingdom of Great Britain and Northern Ireland for the time being is to be substituted from time to time.

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