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THE PEOPLES CONFERENCE - COROWA 2001

  1. Proposal No 4 submitted by Nick Hobson

  2. Speech given by Nick Hobson at the Corowa Conference


Proposal No 4

submitted by

Nick Hobson

EXECUTIVE SUMMARY

This proposal ensures a more equitable approach to the continuing Head of State debate.

Not only does it allow for a process for an option for an Australian republic, it also allows, as an alternative arrangement, for a process to include the Head of State phraseology into Australia's existing Constitutional Documents.

Additionally, the proposal also includes a provision for an amendment to Section 15(1) of the Australia Acts to ensure that any future change to a republic cannot be accomplished via "back door" methodology. This concept is more in keeping with the spirit of the framers of the Constitution who, in the 1890s, included a referendum process for change. Regrettably, this process was not mimicked by Australia's elected public servants of the 1980s when enacting the Australia Acts.

This proposal is also dependent upon a two-tier referendum process. The use of plebiscites has been rejected because they hold no constitutional authority and also may not give a true indicative test of public opinion in the same manner as does the referendum process outlined in s128 of the Constitution of the Commonwealth. In other words, while a plebiscite may indicate willingness for change to a republic, the final, and required, referendum test could well fail. This would be extremely embarrassing for those who orchestrate such action.

The use of successful plebiscites could also give confidence to Australia's collective legislatures to achieve constitutional change outside of the framework of s128 of the Constitution. If not that, then the same legislatures could legally and constitutionally amend the Australia Acts to allow for the States to become republics. This approach would allow for Victoria to become a republic without the will of the Victorian people - hardly democratic for this day and age.

There has been no attempt to include the mechanics of change to a republic because this proposal allows, in the first instance, for the retention of the existing constitutional arrangements with the inclusion of the Head of State phraseology. That decision should be made first before any further financial expenditure and wide-ranging work is done on a draft republican constitution.

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PROPOSAL

To ensure that the most equitable solution for both sides of the constitutional monarchy/republican debate to resolve the Head of State issue is implemented, the Conference recommends that the Parliament of the Commonwealth conduct a 2-tier referendum process to determine:

  1. whether the Australian people wish to incorporate the office of Head of State into Australia's existing constitutional arrangements and to disallow the Commonwealth and State Parliaments from amending the Australia Acts and/or the Statute of Westminster without the will of the people (Schedule 1), or

  2. whether the Australian people wish to allow for the commencement of further constitutional processes that would allow for the eventual establishment of an Australian republic and to disallow the Commonwealth and State Parliaments from amending the Australia Acts and/or the Statute of Westminster without the will of the people (Schedule 2).

Accordingly, the Conference recommends that an initial federal referendum be conducted with the following question put to the Australian voters:

Do you approve of a proposed law (Schedule 1) to give the Commonwealth Parliament a power to amend the Australia Acts to:

  1. Provide for a process to ensure that the Australia Acts and/or the Statute of Westminster be only changed by referendum, and

  2. To incorporate the office of Head of State into Australia's existing constitutional arrangements?

NOTE: No further referendum would be required if this option is approved.

OR

Do you approve of a proposed law (Schedule 2) to give the Commonwealth Parliament a power to:

  1. Amend the Australia Acts to provide for a process to ensure that the Australia Acts and/or the Statute of Westminster be only changed by referendum, and

  2. To commence further constitutional processes that would allow for the eventual establishment of an Australian republic?

NOTE: A further referendum would be required if this option is approved.

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SCHEDULE 1

Proposal:

Leave the Constitution of the Commonwealth unchanged and confer a power on the Parliament of the Commonwealth, in accordance with Section 15(3) of the Australia Acts, to enable the Commonwealth Parliament to amend Section 7 and Section 15(1) of the Australia Acts as detailed below:

Amend section 15 (1) of the Australia Acts to read:

This Act or the Statute of Westminster 1931, as amended and in force from time to time, in so far as it is part of the law of the Commonwealth, of a State or of a Territory, may be repealed or amended by an Act of the Parliament of the Commonwealth passed at the request or with the concurrence of the Parliaments of all the States, with such provisions having been approved by a majority of voters in each of the States, and, subject to subsection (3) below, only in that manner.

Amend section 7 of the Australia Acts to read:

Powers, functions and qualifications of The Sovereign, The Governor-General and Governors

7.
  1. The Royal Powers Act 1953, and The Royal Style and Titles Act 1973 are hereby repealed.

    1. The office of Head of State of the Commonwealth and of all Australian Territories shall be held and exercised by the Governor-General as the Sovereign's representative at all times except for when the Sovereign is personally present in Australia.

    2. The office of Head of State of a State shall be held and exercised by the Governor of a State as the Sovereign's representative at all times except for when the Sovereign is personally present in that State.

  2. The office of Governor-General, the office of each State Governor and the office of each Territory Administrator shall only be held by an Australian citizen and who shall be subject to the provisions of Section 44 of the Constitution of the Commonwealth.

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

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

    2. The Governor-General has the same powers with respect to an act done, or an instrument made, granted or issued, by the Sovereign 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 this sub-section affects or prevents the exercise of any power under an Act by the Governor-General.

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

  4. The Royal Style and Titles for the Sovereign of Australia are:

Elizabeth the Second (Name of Sovereign), by the Grace of God Queen (King ) of Australia and Her (His ) other Realms and Territories, Head of the Commonwealth.

NOTE: The name of the Sovereign of Australia is to be substituted from time to time.

  1. The powers and functions of the Sovereign and Governors in respect of States shall be as follows:

    1. The Sovereign's representative in each State shall be the Governor.

    2. Subject to subsections 6(c) and 6(d) below, all powers and functions of the Sovereign in respect of a State are exercisable only by the Governor of the State.

    3. Subsection 6(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 the Sovereign is personally present in a State, the Sovereign is not precluded from exercising any of the Sovereign's powers and functions in respect of the State that are the subject of subsection 6(b) above.

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

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SCHEDULE 2

Proposal:

Confer a power on the Parliament of the Commonwealth, in accordance with Section 15(3) of the Australia Acts, to enable the Commonwealth Parliament to amend Section 15(1) of the Australia Acts and authorise the Commonwealth Parliament to prepare for a republican constitution as detailed below:

Amend section 15 (1) of the Australia Acts to read:

This Act or the Statute of Westminster 1931, as amended and in force from time to time, in so far as it is part of the law of the Commonwealth, of a State or of a Territory, may be repealed or amended by an Act of the Parliament of the Commonwealth passed at the request or with the concurrence of the Parliaments of all the States, with such provisions having been approved by a majority of voters in each of the States, and, subject to subsection (3) below, only in that manner.

Confer a power on the Commonwealth Parliament:

Confer a power on Parliament of the Commonwealth, in accordance with Section 15 (3) of the Australia Acts (or under the amended Section 15 (1) of the Australia Acts as outlined above), to prepare for the necessary changes that will allow for the amendment and/or repeal of:
  1. The Australia Act 1986 (Cth),

  2. The Australia Act 1986 (UK),

  3. The Statute of Westminster Adoption Act 1942,

  4. The Statute of Westminster 1931, and

  5. The Commonwealth of Australia Constitution Act but excluding clause 9 (The Constitution of the Commonwealth) of the Commonwealth of Australia Constitution Act

so as to ensure that all constitutional documents relating to the republican proposal are changed simultaneously as well as submitting to the people a proposed law to change the Constitution of the Commonwealth itself at a second and final referendum.

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Speech Against Proposal 10 by Nick Hobson

Saturday, 1 December 2001

The People's Conference - Corowa 2001

Corowa RSL Club, Corowa NSW

Mr Chairman, Ladies and Gentlemen.

Thank you, Mr Chairman, for giving me the opportunity for me to speak against the proposal currently before the Conference.

This proposal, like all the other proposals before us today, rests, in the first instance, on the holding of a plebiscite to indicate whether or not Australia should become a republic.

The concept of holding a non-binding plebiscite to decide such an important matter for our country is, at best, foolhardy and, at worst, undemocratic. It doesn't even match the full democratic referendum processes that our Founders so carefully instilled into us from those auspicious beginnings in this town over 100 years ago.

Regardless of whether a plebiscite is held under the guidelines of s128 of The Constitution or just as a straight forward vote poses some potential problems for its proponents.

Firstly, if support for a republic were gained by the smallest of margins using the plebiscite method as suggested in the proposal, then there is no automatic guarantee that the required final referendum process will meet with the approval of the people in accordance with s128 of The Constitution.

It would seem to me that those seeking such unpredictable processes could end up being seen as the leads in some latter day Gilbert and Sullivan escapade resulting in total embarrassment, not only for themselves, but also for the nation at large should it all fall apart in the final hour.

This concept takes no cognisance of Australia's referendum history to date; change should never be automatically assumed.

Secondly, there are more serious matters that I need to bring to your attention should a plebiscite be successful.

The first of these deals with the Australia Acts.

It is quite clear that, legally and constitutionally, a successful plebiscite may well encourage the combined Commonwealth and State legislatures to amend s7 of the Australia Acts to delete references to "Her Majesty".

This amendment would allow for the States to become republics ahead of the Commonwealth itself. Indeed, this action would fit in comfortably with Premier Peter Beattie's suggestion of last year that the States revive the republic debate and experiment with popular election and other methods of choosing their governors.

While this concept may give heart to those who want change, it would leave the people of Victoria stripped of their democracy. In a State where constitutional change is not subject to referendum, that process would mean that Victorians could wake up one morning and find themselves with a republican constitution. While Victorians may not wish to acquiesce to such process they would, none-the-less, have been blindly forced to accept such change without ever having given unequivocal opinion.

No one - republican or constitutional monarchist - could support such an undemocratic process.

The other and more important aspect of this problem is that the same legislative combination described beforehand could also change the Constitution itself by amendment to the Statute of Westminster.

In his book "Democracy - choosing Australia's Republic", Richard McGarvie has stated that:

"With the power from the Australia Acts, the Commonwealth Parliament, by Acts supported by the State Parliaments, can amend the provision in the Statute of Westminster that precludes it from amending the Commonwealth Constitution, the covering clauses or the preamble."

This should send alarm bells ringing in all directions.

Regardless of whether the Commonwealth and the States would take such action might well depend on how frustrated are those who seek change to a republic or to undertake other wide-ranging constitutional reform without continued and depressing defeats at successive referenda.

We now know that the High Court has found that the Australia Act 1986 (Cth) is valid albeit it on another matter.

Indeed, the Court has found that "the Australia Act represents an actual enhancement of the State legislative powers" and that "Any room for inhibition against giving its full scope and effect no longer applies."

It is my strong belief that the High Court should never be put in a position to have to decide on such matters as I have raised and that any remote possibility of circumventing s128 of The Constitution should be closed off!

I also believe that s1 of The Australia Acts still remains a blight on Australia's constitutionality and because of that, and because of possible change of The Constitution outside of s128 of The Constitution itself, s15(1) of the Australia Acts should be amended to include a referendum process for change.

Accordingly, the use of plebiscites to seek some shaky and shady authority to proceed to a republic should be cast to the wind forever.

Therefore, I strongly recommend that this proposal, and any other proposal that requires the use of a plebiscite of any type or form, should not be supported at all at this Conference.

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