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Thursday, 19 March 2015
Page: 1940


Senator RYAN (VictoriaParliamentary Secretary to the Minister for Education and Training) (13:15): The details of the Succession to the Crown Bill are well known and have been outlined by my colleagues who have spoken before me today. It ends male preference primogeniture in the right to the throne, it lifts the long prohibition on marrying Catholics for those in the line of succession and it limits the need for permission from the sovereign for the first six in line to the throne when they seek to marry, as well as validating some past marriages. It is important to note the process by which this bill has come to the parliament. I note that the Parliamentary Secretary to the Prime Minister in the other place outlined that from his research this was only the third time in the Commonwealth's history that this particular provision of the Constitution—section 51(xxxviii)—had been used, with the other examples being the Australia Act 1986 and, of all things, the Coastal Waters (State Powers) Act of several decades ago.

Senator Smith outlined a very important principle that this act reflects and that has been the case since the 17th century. This act reflects the principle of parliamentary democratic sovereignty over the right to the throne. However, I will note that it does have a contrast with one of the elements of our own constitution, in section 116, which does guarantee freedom of religion and prevents the Commonwealth establishing a religious test for any public office or in fact a state religion. I do want to turn to some of the history of that, as well as our other constitutional arrangements, because they are relevant to this debate and I note that they have been brought up by many of those opposite in this chamber and also in the other place. This bill provokes a discussion of these issues.

Many have raised the issue of a republic—we have heard that here this morning. In the other place someone described Australia as a dominion. The important point about our history, and this goes to the way our nation was formed, is that Australia never described itself as a dominion—it was always a Commonwealth. When the constitutional drafters took the agreed bill to London for passage through the UK parliament, the very terminology 'Commonwealth of Australia' raised certain eyebrows because of its connotations with historical events in England. Too often the republican movement in Australia mistakes nationalism for republicanism. I hasten to mention that I say this with a different world view from my colleague Senator Smith—I have been a republican for as long as I can remember. But a republic is not just about the head of state—it is about a form of government. It is about a form of government where one is as concerned with the tyranny of the majority as it is with reflecting it through democratic means. In fact, one of the first outlines of a modern republic by Montesquieu defined the British system of government at the time as a perfect republic—a crowned republic with three separate, distinct sources of authority through the executive, the legislature and the judiciary. Too often republicans in Australia are solely nationalists. We hear the cry 'an Australian for head of state' but we do not have any discussion about the role this person will play or the manner by which we choose them.

Most of the arguments of many of those proposing change in the 1999 referendum, which I opposed, could have simply been addressed by the legislation for an Australian monarchy. The cry over and over again was 'a mate for head of state' or 'an Australian for head of state'. Some of the ill-founded attacks by some republicans on direct-election republicans during that campaign, and which occasionally get reflected in these debates, are based on this misunderstanding of republicanism. Whether they were from a Labor tradition like Clem Jones or a more conservative tradition like Paddy O'Brien, their commitment to republicanism was about a form of government. That is a very important thing to understand when we look at how our Constitution was formed. In particular, when we look at the features of our republican constitution that we have here, we have an independent court that has the power to rule acts of this parliament invalid; we have this very chamber—one of the most powerful upper houses in the world and the most powerful upper chamber in any Westminster parliament; we have a written constitution; and we have sovereignty guaranteed at the Commonwealth and state levels. The 1999 referendum weakened proposal the power of this chamber quite dramatically, and I think it was during a condolence debate in the other place on the passing of former Prime Minister Gough Whitlam that my colleague and friend the member for Wentworth, who was the leader of the Yes campaign in 1999, conceded that one of the impacts of the 1999 referendum being passed would have been the effective removal of the power of the Senate to block supply. That was never explicitly outlined, but it profoundly weakened one of the key republican elements of our federal Constitution.

Our process of federation was a unique one. It is one that we can and should be proud of and indeed I am. Our federation was made by many forgotten republicans whose values were incorporated into the formation of the Commonwealth of Australia. On many occasions Australia has been referred to as a crowned republic because of the strong republican elements in our Constitution. By any test we are a federal republic through the outline of the institutions I have just mentioned—the Senate, the states, the written constitution, the strong courts and guaranteed judicial independence. What I find odd is that so many of those voices who claim to be republicans so often complain about these very same features of our Constitution. Look at the single most important part of our Constitution, which is section 128—the referendum power. Unlike virtually every other formation of a democratic nation, the power to change the constitution was not given to politicians, it was not given to elected assemblies, it was not given to stacked assemblies of people who were chosen because they held a view—it was given solely to the people of this country. Too often those proposing change who then bleat about the failure of referendums have failed to understand that sense of public ownership over our Constitution. I have never understood how so-called democrats—Senator Milne reflected an attitude like this, complaining about the state of our constitutional arrangements in her speech earlier—can complain about the result of a referendum. We have given the people a choice. Of the 36 referendums that have failed, 34 of them have failed on a national level. Only two failed because they only succeeded in three states, not four, but still had a national majority. On the overwhelming number of occasions the people have chosen to not change the constitution it has been by a strong national majority.

Too often the language of people who want change does not reflect a commitment to the arrangements that were set up by the people who drafted our Constitution. That is true whether the proposed change is about our head of state or whether it is, as it always seems to be, about granting more power to this place—sadly it never seems to be about reducing that power. Yes, the people who drafted our Constitution were all male. It was not a perfect process when judged by the standards of today, but it was the most democratic constitutional convention, election, drafting and consent process the world has ever seen. It was remarkable in the late 19th century for there to have been universal male suffrage—with female suffrage in one colony and with, in some colonies, some of our Indigenous people having the right to vote in the referendum to form the Commonwealth.

Let us not blame the founding fathers for the actions of this parliament in 1902 in stripping away the right of Indigenous Australians to vote. I remind people again that, when they go out to a school and answer a question—saying that Australia in 1902 was the second country in the world to give women the vote—they should be honest and also say that that same act of this parliament took the vote away from Indigenous people. It was not a flaw in the Constitution; it was not an act of the founding fathers; it was an action of those elected to the First Parliament. That should be a reminder to us here that what we think might be the right thing on any given day may, with the turn of history, be seen very differently in the future. It is a good reminder to us to be a little bit humble when acting based on the attitudes of today.

Whether it is about the issue of a head of state, whether it is about the issue of the powers and forms of the Commonwealth, or whether it is about giving Indigenous Australians a special place in the Constitution, those proposing change have only ever been successful when they have had more than just bipartisanship. There have been plenty of bipartisan referenda that have failed. In 1967, on the same day that 91 per cent of Australians voted to give this parliament power over the affairs of Indigenous Australians and to delete section 127 of the Constitution, a technical amendment that would have weakened the power of the Senate—the so-called 'nexus' clause—was voted down. This was an amendment that had the support of both major parties. That happened on the same day, on the same ballot paper. It shows you the degree of engagement Australians have when they consider referendum proposals put forward by the Commonwealth. I say to those who, in this debate, have expressed concerns about our current constitutional arrangements: any change will only occur as a product of engagement with the Australian people and, thankfully—due to the referendum power—with their consent.

Too often the strengths and the historical achievements of our Federation process are forgotten. The other night when I was at the Victorian state parliament, I had the chance to read the charter of the Ballarat Reform League. The language of the Ballarat Reform League is quite amazing. It bears a remarkable resemblance to the language of the American colonists prior to 1776. It talks about a wish not to separate from the mother colony, it talks about the need for democracy and it talks about the need for regularly elected parliaments and universal—in this case male—suffrage. Those ideas from Gold Rush era Victoria eventually ended up incorporated into our Constitution. We invented the secret ballot at what is now a pub over the road from the Victorian state parliament. South Australia came up with a way to develop electoral rolls which much of the world now uses. Our process guaranteed a level of democratic involvement that is the envy of the world. It should not be impugned because people make judgements about the past.

As I often like to remind this chamber, there was indeed one Labor delegate at the last federal constitutional convention—and that Labor delegate voted no. The process of forming this country involved a debate amongst different strains of 19th century liberals and liberalism. That is the philosophy that formed this country. Not only does the bill we are dealing with today reflect the attitudes they had about guaranteeing parliamentary sovereignty, but the fact we can have this debate—and we have constitutional debates at regular intervals—is a sign of how successful they were at ensuring that the people own our Constitution. It is our job to convince the people, not to lecture them.

Before I commend the bill to the Senate, I would like to correct a couple of comments made by earlier speakers in this debate. The reason our states have roles that are different from those of states and provinces in other Commonwealth countries is that in Australia we have a unique arrangement where the states have their own relationship with the Crown. That is unlike Canada in particular. There is a very good book on this by Anne Twomey—The Chameleon Crown. Senator Milne might like to read it. It reflects our history and it goes through the development of the Australia Act in 1986—and it highlights a very important constitutional principle. For federalists like myself, that principle means that, when things that I do not like are happening under a Labor government in my home state—and I am sure Senator Carr or Senator Milne could think of some examples—I still do not seek to interfere from here. I was not elected for that purpose. I suggest that those who criticise the fact that our states have autonomy and their own sovereignty ought to think more broadly. It is easier to follow that principle when people you agree with are in power; the hard bit is when you disagree with them.

Senator Milne also raised the issue of Scotland and the referendum there. As far as I am aware, the proponents of the yes vote in that campaign—who did not succeed in breaking up the union—made it very clear that they were going to maintain their links with the British monarchy. They were going to make it, effectively, a Scottish monarchy—in the same way that there is an Australian monarchy and a New Zealand monarchy. I thought it important to correct the record on that. The referendum in Scotland in fact had no relationship with whether or not Scotland was going to be a republic. It was about its arrangements as part of Great Britain—but maintaining its relationship with the monarchy. That said, I commend the bill to the Senate.

Question agreed to.

Bill read a second time.