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Current Issues Brief

No. 11 1997-98

The 1998 Constitutional Convention—First Impressions

ISSN 1440-2009

 Copyright Commonwealth of Australia 1998 Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means including information storage and retrieval systems, without the prior written consent of the Department of the Parliamentary Library, other than by Senators and Members of the Australian Parliament in the course of their official duties.

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document. IRS staff are available to discuss the paper's contents with Senators and Members and their staff but not with members of the public.

Published by the Department of the Parliamentary Library, 1998

I N F O R M A T I O N A N D R E S E A R C H S E R V I C E S

Current Issues Brief No. 11 1997-98

The 1998 Constitutional Convention—First Impressions

George Williams Consultant, Law and Bills Digest Group 23 March 1998

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Contents

Major Issues Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Patriation of the Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

The Models . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A Peoples' Convention? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Deeper Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

The Constitution and the People . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Appendix 1: The Models as Presented to the Convention . . . . . . . . . . . . . . . . . . . . . . 11

Direct Election Model… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Model Proposed by The Hon. Bill Hayden AC . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Model Proposed by The Hon. Richard McGarvie . . . . . . . . . . . . . . . . . . . . . . . . 16

Bi-Partisan Appointment of the President Model . . . . . . . . . . . . . . . . . . . . . . . . . 17

Appendix 2: The Convention Communique . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

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Major Issues Summary

The 1998 Constitutional Convention was held over ten days from 2-13 February 1998. The business of the Convention was set down by Prime Minister John Howard. The Convention was given the task of resolving three broad issues:

1. Whether or not Australia should become a republic. On this issue, the Convention voted to support 'in principle' Australia becoming a republic.

2. Which republican model should be put to the electorate to consider against the status quo? Here, the Convention supported the Bi-Partisan Appointment of the President Model. This model was developed from that brought to the Convention by the Australian Republican Movement. It would allow for nomination by any Australian, with the names put forward to be vetted by a Committee established by Parliament and then a short-list passed onto the Prime Minister. The Prime Minister would then present a single nomination for the office of President, seconded by the Leader of the Opposition, for approval by a Joint Sitting of both Houses of the Federal Parliament. A two-thirds majority would be required to approve the nomination. The powers of the President would be the same as those currently exercised by the Governor-General.

3. In what time frame and under what circumstances might any change be considered? As to timing, the Convention resolved that a referendum be held in 1999 to allow Australians to decide whether to make the move to a republic or to maintain the status quo, and that, if the referendum is in favour of a republic, the new republic come into effect by 1 January 2001.

The Convention was limited to considering these three issues. It gave little or no attention to other questions, such as Australian federalism, whether Australia should have a Bill of Rights, or to the Coat of Arms. What attention it did give to such deeper issues is reflected in the Convention's recommendations as to the Preamble to the Constitution and in relation to the need for ongoing constitutional review. For example, the Convention recommended that a new Preamble to the Constitution be drafted to include, among other things, affirmation of the rule of law and acknowledgment of the original occupancy and custodianship of Australia by Aboriginal peoples and Torres Strait Islanders.

The Constitutional Convention can be regarded as a success, despite it not being clear whether it will lead to an Australian republic. While the Prime Minister has announced that the Bi-Partisan Appointment of the President Model will be put to the people in 1999,

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it is far from assured of being passed (indeed since 1901 only eight of forty-two proposals have been supported by the Australian people). The success of the Convention was instead that it generated significant interest in and about Australia's system of government. For the first time since the Conventions of the 1890s, the Australian people were visibly involved in the process of constitutional development. Given that Australians possess a high degree of ignorance of and apathy about their system of government, this was a very important achievement.

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Introduction1

The 1998 Constitutional Convention was a great success. Not since Federation on 1 January 1901 has the Constitution received such sustained popular attention. While the Convention may not bring about an Australian republic, for this is uncertain and perhaps even unlikely, it did galvanise many Australians into thinking about and reflecting upon their system of government. For the first time since the dismissal of the Whitlam Government on 11 November 1975, the Australian Constitution was centre-stage. However, from 2-13 February 1998 the Constitution fascinated the media and the public not due to a political crisis, but in the context of looking forward to the second century of Australian Federation.

The 1998 Convention emphasised the sovereignty of the Australian people and the scope for them to change their system of government. However, the Convention only marked a beginning. It is too early to tell whether this process will ultimately prove abortive, and the Constitution impervious to change.

Patriation of the Constitution

A key achievement of the 1998 Convention was that it began, to recoin a Canadian word,1 the patriation, or bringing home, of the Australian Constitution. The Constitution that came into effect on 1 January 1901 was an Act of the British Parliament. Although also supported in referendums in 1899-1900 by people in the various Australian colonies,2 it has continued to be a product of its era. In particular, the Australian Constitution is the outcome of the Constitutional Convention held in Sydney in 1891 and the subsequent Convention held over 1897-1898 in Adelaide, Sydney and Melbourne.3

There are some similarities between the 1998 and 1897-1898 Conventions. The low turnout for the election of delegates to the 1998 Constitutional Convention was disappointing. The same was true of the election of delegates to the 1897-1898 Convention, with 139 850 people out of 260 000 enrolled electors voting in New South Wales and 99 108 out of 238 000 enrolled electors voting in Victoria.4 The composition of

1. This paper is a revised version of an article that appears at (1998) 23 Alternative Law Journal 2.

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the two Conventions was, however, very different. At the 1897-1898 Convention, William Trenwith, a member of the Victorian Parliament and former bootmaker and trade union organiser, was the only representative of the labour movement. There were no women,5 Aboriginal or youth delegates; 'It was for the most part the big men of the established political and economic order, the men of property or their trusted allies, who moulded the federal Constitution Bill.'6 As a consequence, the Constitution was not written as an instrument of the Australian people, but by drafters who, according to Manning Clark, 'wanted a Constitution that would make capitalist society hum'.7

The 1998 Convention encompassed a wide spectrum of the Australian community. Importantly, it enabled many of those groups who were absent from the framing of the Constitution in the 1890s, most particularly Australian women and indigenous peoples, to take part in the revision of the instrument one hundred years later. It also allowed the

participation of members of migrant and ethnic groups who had not formed a large part of the Australian population at the time of Federation. The 1998 Women's Constitutional Convention held over two days just before the main event demonstrated the importance of the Convention process to sections of the community that have felt excluded by the system of government created by the Constitution.8

The Models

The business of the 1998 Convention was set down by Prime Minister John Howard. The Convention was given the task of resolving three broad issues:

1. whether or not Australia should become a republic

2. which republican model should be put to the electorate to judge against the status quo, and

3. in what time frame and under what circumstances might any change be considered.

On the first issue, the Convention voted by 89 to 52 to support 'in principle' Australia becoming a republic. Surprisingly, after two weeks of intense discussion and months of buildup, 11 delegates were unable to decide this question and abstained from voting. On the third issue, the Convention resolved that a referendum be held in 1999 to allow Australians to decide whether to make the move to a republic or to maintain the status quo, and that, if the referendum is in favour of a republic, the new republic come into effect by 1 January 2001.

The second issue dominated the Convention. By the middle of the second week, four models had emerged. In Appendix 1, each model is set out in the detail in which it was presented to the Convention. The most important differences between the models lay in the method of choosing a President and in the powers of the office-holder. On the latter

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issue, it was not the symbolic day-to-day functions of the President that were in question, but the reserve powers, and in particular the power to dismiss a Prime Minister.

The reserve powers currently held by the Governor-General exist for times of political crisis or impasse. Normally, the Governor-General can only act upon the advice of the Prime Minister, whereas the reserve powers can be exercised against such advice. The scope of the reserve powers is vague and uncertain. Indeed, it has been argued that the reserve powers are incapable of being defined sufficiently to be written down or codified. Sir John Kerr exercised a reserve power in sacking the Whitlam Government and dissolving the House of Representatives on 11 November 1975, as did Governor Sir Philip Game in dismissing the Lang Government in New South Wales in 1932. The most difficult problem in incorporating the reserve powers into a republican model is whether to remove the reserve power of the President to dismiss a Prime Minister in the event of supply (that is, the budget bills) being blocked by the Senate. This question raised the spectre of 1975 and the possibility of deadlock in the Convention.

The first of the models before the Convention was the Direct Election Model, a blend of popular and parliamentary involvement in the selection of an Australian President. Under this Model, any Australian could nominate a person to be Head of State. A joint sitting of the Senate and House of Representatives would then, by at least a two-thirds majority, choose no fewer than three candidates from those nominated to stand for election by the people. Parliament would be required to make laws to regulate campaign expenditure by and for candidates and to provide advertising and campaign support through a body funded by the Parliament. The election for President would be held simultaneously with that for the House of Representatives, with the President holding office for two terms of the House. The reserve powers would be partially codified as provided for in the 1993 Report of the Republic Advisory Committee.9 However, the Head of State would not have the power to dissolve the House of Representatives in the event of a rejection of supply by the Senate unless: (i) the High Court had determined that there had been a contravention of the Constitution, such as that the government had spent money without authorisation by law and thus in breach of s 83 of the Constitution; or (ii) an absolute majority of the House of Representatives had requested such dissolution.

The second model was proposed by Bill Hayden, a former Governor-General. The Hayden Model also allowed a popular election for the President. A person could stand if he or she had been nominated by one per cent of voters, or around 120 000 people. The powers of the President would be limited by a partial codification of the reserve powers of the President in line with the Report of the Republic Advisory Committee.10

The third model was that put forward by Richard McGarvie, a former Governor of Victoria. The McGarvie Model proposed that the President be chosen by the Prime Minister and appointed or dismissed by a Constitutional Council bound to act as the Prime Minister advised. This Constitutional Council would consist of three 'elders' determined automatically by constitutional formula with places going first to former Governors-General or Presidents, with priority to the most recently retired, and unfilled places going,

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on the same basis in turn to former State Governors, Lieutenant-Governors (or equivalent), judges of the High Court or judges of the Federal Court. A temporary provision would operate for thirty years so that if there was no woman in the first two places filled, the third place would go to the woman with the highest priority among the eligible persons. The President would have the same reserve powers as currently held by the Governor-General.

The final model was the Bi-Partisan Appointment of the President Model, which was a model developed from that brought to the Convention by the Australian Republican Movement. It allowed for nomination by any Australian, with the names put forward to be

vetted by a Committee established by Parliament and then a short-list passed onto the Prime Minister. The Prime Minister would then present a single nomination for the office of President, seconded by the Leader of the Opposition, for approval by a Joint Sitting of both Houses of the Federal Parliament. A two-thirds majority would be required to approve the nomination. The powers of the President would be the same as those currently exercised by the Governor-General.

Each of these models has its strengths and weaknesses. The McGarvie Model could hardly be said to achieve a republic at all. It provides for no popular participation either directly by election or indirectly through appointment by parliamentary representatives. There would be no link between the people and their Head of State. The McGarvie Model would involve only the barest change to the current system of government.

The models providing for direct election, while receiving the support of opinion polls taken by newspapers during the Convention, were said to involve too large a departure from current constitutional arrangements, and in the case of the Hayden Model, an unwieldy nomination process. The direct election models gave rise to largely unfounded fears of a fracturing of the constitutional system. It was argued that a directly-elected President might possess a mandate that would allow him or her to establish a new centre of political power, potentially in opposition to the Prime Minister. This could erode the Westminster tradition followed in Australia that those exercising executive power should be answerable directly to the Parliament. The Direct Election Model met this objection by setting down careful limitations upon the power of a President. By requiring that each person standing for election receive the support of two-thirds of the Federal Parliament, this model also alleviated the concern that direct election would inevitably lead to a politician as President.

In contrast to the models involving direct election, the Bi-Partisan Appointment of the President Model would involve very little direct participation by the people. It is an uncomfortable mix of popular participation and parliamentary choice, with the real power undoubtedly lying in the hands of the Prime Minister and the Leader of the Opposition. This was emphasised by an amendment to the Model which allows the names of persons nominated to be kept confidential (the final amended version of this model is set out in the Convention's Communique in Appendix 2). The main attraction of this Model is that it would be likely to produce a President with the support of the major political parties, or at

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least the Labor Party and the Liberal-National Party Coalition, and would be a far cheaper option than any model involving direct election.

The Convention delegates considered the four models through a process of exhaustive voting, whereby the model receiving the lowest vote in each round of voting was knocked out until only one model remained.11 The first model eliminated was the Hayden Model. In the second round of voting the Direct Election Model was eliminated, receiving 30 votes as against the 31 votes for the McGarvie Model. In the third round the McGarvie Model was eliminated with 32 votes as against the 73 votes for the Bi-Partisan Appointment of the President Model, leaving the latter as the Convention's preferred republican option.

A Peoples' Convention?

The 1998 Convention has been described as a 'Peoples' Convention'. The voting at the Convention suggests that this is a misnomer. Only half of the 152 delegates to the Convention were elected by the people. The other half consisted of parliamentary representatives and people appointed by the Howard Government. This had a significant impact upon the Convention. In general, the people appointed by the Government were either supportive of the current monarchical system or of very minimal change. This led to popular support for direct election of a President not being reflected in the voting at the Convention, while support for the McGarvie Model was exaggerated. Of the 32 delegates who voted for the McGarvie Model in the last round of voting, 30 were appointed delegates. The appointed delegates were successful in skewing the Convention towards a more conservative outcome and away from the community support for direct election.

The makeup of the Convention allowed the compromise model put forward by the Australian Republican Movement to gain clearly more votes than any other proposal. However, although somewhat hopefully named a Bi-Partisan Model, it failed to gain significant support from Liberal or National Party delegates. It also alienated many of the delegates supporting a direct election model. This was clearly evident when the following question was put before the Convention on its final day: Does this Convention support the adoption of a republican system of government on the Bi-Partisan Appointment of the President Model in preference to there being no change to the Constitution? Only 73 delegates, less than half of the Convention, voted 'Yes', 57 delegates voted 'No' and 22 delegates, including many of the supporters of a direct election model, abstained from voting. Despite a protest from one delegate over the fact that the Bi-Partisan Model had not gained the support of an absolute majority, or 77, of the delegates, the question was declared carried as more people had voted 'Yes' than 'No'.

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Deeper Issues

The Constitutional Convention was premised on a narrow view of what it means to be a republic. It assumed that Australia would be a republic once there is an Australian as Head of State. The focus of the Convention was on change to the symbols and traditions of the Constitution, and not upon deeper issues such as federalism and the financial problems of the States or the need to protect human rights. It was even deemed to be beyond the scope of the Convention to discuss the Australian Flag or the Coat of Arms.

The boundaries of the Convention set down by the Prime Minister were rigorously policed by the Chair and Deputy Chair. Although some delegates had been elected with a mandate to push for wider change to the Constitution, such as the incorporation of a Bill of Rights, it became clear from the first day of the Convention that any such aims would be frustrated. This was not a forum that gave a voice to those who believed that Australia could not become a republic unless its Constitution recognised certain fundamental freedoms.

Nevertheless, the Communique of the Convention (see Appendix 2) did touch upon some deeper issues. This occurred in two areas. First, the Convention recognised the need to incorporate a new Preamble to the Constitution in the event of a shift to a republic. The Convention found that the existing preamble of the British Act that brought the Constitution into effect should be left untouched. A new preamble should instead be inserted after these clauses and before the operative sections of the Constitution. It was agreed that this preamble should include:

• introductory language in the form 'We the people of Australia'

• reference to 'Almighty God'

• affirmation of the rule of law

• acknowledgment of the original occupancy and custodianship of Australia by Aboriginal peoples and Torres Strait Islanders

• recognition of Australia's cultural diversity, and

• affirmation of respect for our unique land and the environment.

The Convention left open whether the following should also be recognised:

• affirmation of the equality of all people before the law; recognition of gender equality, and

• recognition that Aboriginal people and Torres Strait Islanders have continuing rights by virtue of their status as Australia's indigenous peoples.

It was decided that the preamble should be of symbolic relevance only, and should not

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have any legal effect. To this end, it was resolved that Chapter III of the Constitution should be amended to state that the preamble could not be used to interpret other provisions of the Constitution.

The second way in which the need for deeper change was reflected at the Convention was that the delegates supported an ongoing constitutional review process. The Convention resolved that, if a republican system of government should be introduced by referendum, at a date being not less than three years or more than five years thereafter, the Commonwealth government should convene a further Constitutional Convention. This Convention would review the operation and effectiveness of the republican system of government introduced by a constitutional referendum, as well as address any other matter related to the operation of the Australian system of government under republican arrangements, including:

• the role of the three tiers of government

• the rights and responsibilities of citizenship; whether the Commonwealth should have an environment power

• the system of governance and proportional representation

• whether the mechanism for constitutional change should be altered

• constitutional aspects of indigenous reconciliation

• equal representation of women and men in parliament, and

• ways to better involve people in the political process.

By this latter means, the Convention presented its vision of the Constitution as an evolving document, and not as an instrument frozen in time. However, this recognition amounted to no more than token acknowledgment of these further issues. The fact that the Convention's agenda meant that it could not deal with these other constitutional issues, even those of pressing importance, does not mean that the move to implement the model supported by the Convention should be resisted. Instead, the attempt to bring about the very modest change supported by the Convention should be seen as a hurdle that must be overcome if Australia is to tackle more significant constitutional revision.

The Constitution and the People

The Constitution is not truly a product of the collective will of the Australian people unless they have knowledge and some basic understanding of it.12 Unfortunately, Australians possess an appalling lack of knowledge about their system of government. The

1994 report on citizenship by the Civics Expert Group13 found that only 18% of

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Australians have some understanding of what their Constitution contains, while only 40% could correctly name both Houses of the Federal Parliament. More than a quarter of those surveyed nominated the Supreme Court, rather than the High Court, as the 'top' court in Australia. These results came as no surprise. A 1987 survey conducted for the Australian Constitutional Commission found that 47% of Australians were unaware that Australia has a written Constitution.14

The lack of civics education in schools and the prevailing apathy in the community towards politicians and the political process are largely responsible for the ignorance of the Australian people about the Constitution. The Constitution is also, at least at face value, an uninspiring document. As Lois O'Donoghue, former Chairperson of the Aboriginal and Torres Strait Islander Commission, has stated: 'It says very little about what it is to be Australian. It says practically nothing about how we find ourselves here— save being an amalgamation of former colonies. It says nothing of how we should behave towards each other as human beings and as Australians.'15

The model supported by the 1998 Convention will do little to change this. However, the Convention appears to have contributed to a greater understanding of our system of government. This process will continue as the debate over an Australian republic continues to move forward. The next step will be for the Federal Parliament to pass a Bill expressing the broad principles supported by the Convention as precise amendments to the Constitution. Once this has been achieved, the Prime Minister has indicated that the proposed changes set out in the Bill will be put to the Australian people in a referendum in 1999. Only if the Bill is successful at the referendum will the model endorsed by the Convention form part of the Constitution.

To be successful, s 128 of the Constitution requires that a referendum be passed: (i) by a majority of the people; and (ii) by a majority of the people in a majority of the States (that is, in at least four of the six States). Even if 65% of Australians voted 'Yes', the referendum would fail if it failed to gain majority support in, say, Tasmania, South Australia and Queensland. Forty-two proposals have been put to the Australian people under s 128. Of these, only eight have been passed.16 Most importantly, no referendum has succeeded except where it has had bi-partisan support. The results of the voting at the 1998 Convention, and the strong support of the Prime Minister for the current monarchical system, suggest that support for the Convention's preferred model will not be forthcoming from the Liberal-National Party Coalition. If the Coalition actively opposes the referendum, it appears unlikely that it will be passed.

The 1999 referendum is the last obstacle to a minimalist Australian republic. The referendum will test whether the model supported by the Convention has caught the popular imagination or whether it represents an attempt to impose a parliamentary election model upon a reluctant Australian people. If the 1999 referendum is passed, it may then allow Australians to address some of the more significant constitutional issues, such as the structural problems of Australian federalism and the possibility of a Bill of Rights.

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Endnotes

1. Hogg, P., Constitutional Law of Canada, Carswell, 4th ed, 1997, p. 55.

2. Quick, J., and Garran, R., The Annotated Constitution of the Australian Commonwealth, 1901 ed, Legal Books, 1995, pp. 225, 250.

3. See Official Record of the Debates of the Australasian Federal Convention, 1891-1898, reprinted Legal Books 1986, 6 vols.

4. Quick, J., and Garran, R., The Annotated Constitution of the Australian Commonwealth, 1901 ed, Legal Books, 1995, p. 164.

5. Catherine Helen Spence stood for election as a South Australian delegate to the 1897- 1898 Convention. She was unsuccessful. See Headon, D., 'No Weak-Kneed Sister: Catherine Helen Spence and Pure Democracy' in Irving, H. (ed), A Woman's Constitution?, Hale & Iremonger, 1996, p. 42.

6. Crisp, L. F., Australian National Government, Longman Cheshire, 4th ed, 1978, p. 14.

7. Clark, M., 'The People and the Constitution' in Encel, S., Horne, D., and Thompson, E. (eds), Change the Rules! Towards a Democratic Constitution, Penguin, 1977, pp. 9-18.

8. The Internet site for the Women's Constitutional Convention

(www.womensconv.dynamite.com.au/) states: 'One hundred years ago men gathered to draft the Australian Constitution. Now, for the first time, women from all sections of society will have the opportunity to contribute their perspective.'

9. Republic Advisory Committee, An Australian Republic: The Options, AGPS, 1993, vol 1, pp. 108-112.

10. ibid., pp. 102-106.

11. The full results are set out on the Internet at

www.dpmc.gov.au/convention/reults.html.

12. Williams, G., 'The High Court and the People' in Selby, H. (ed), Tomorrow's Law, Federation Press, 1995, p. 271.

13. Civics Expert Group, Whereas the People: Civics and Citizenship Education, 1994, AGPS, p. 133.

14. Constitutional Commission, Bulletin, September 1987, no. 5, p. 6.

15. Brennan, F., Securing a Bountiful Place for Aborigines and Torres Strait Islanders in a Modern, Free and Tolerant Australia, Constitutional Centenary Foundation, 1994, p. 18.

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16. For the results of each referendum, see Blackshield, A. R., and Williams, G., Australian Constitutional Law and Theory: Commentary and Materials, Federation Press, 2nd ed 1998, pp. 1183-1188 or Parliamentary Handbook of the Commonwealth of Australia, 27th ed, AGPS, 1996.

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Source: http://www.dpmc.gov.au/convention/model112.html (March 1998) 11

Appendix 1: The Models as Presented to the Convention

Direct Election Model…

ELIGIBILITY:

Every Australian citizen qualified to be a member of the Commonwealth Parliament and who has forsworn any allegiance, obedience or adherence to a foreign power shall be eligible for election and to hold office as the Australian Head of State, provided that he or she is not a member of the Commonwealth Parliament or a State or Territory Parliament at the time of nomination nor is a member of a political party during the term of office of Head of State.

NOMINATION:

Nominations for the office of Australian Head of State may be made by:

(a) Any Australian citizen qualified to be a member of the Commonwealth Parliament;

(b) The Senate or House of Representatives;

(c) Either House of a State or Territory Parliament;

(d) Any Local Government.

SHORTLISTING:

A joint sitting of the Senate and House of Representatives shall by at least a two-thirds (2/3) majority choose no fewer than three (3) candidates from eligible nominees for an election of the Head of State by the people of Australia.

ELECTION:

The election of the Head of State shall be by the people of Australia voting directly by secret ballot with preferential voting by means of a single transferable vote. Parliament shall make laws to regulate campaign expenditure by and for candidates contesting an election for Head of State and to provide advertising and campaign support through a single body authorised and funded by the Parliament.

TENURE:

The Head of State shall hold office for two (2) terms of the House of Representatives and shall be ineligible for re-election at the next Head of State election.

DISMISSAL:

The Head of State may be dismissed by an absolute majority of the House of Representatives on the grounds of stated misbehaviour or incapacity or behaviour inconsistent with the terms of his or her appointment.

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12 Source: http://www.dpmc.gov.au/convention/model112.html (March 1998)

CASUAL VACANCY:

A casual vacancy in the office of Head of State shall be filled by the appointment of a caretaker by an absolute majority of the House of Representatives who shall hold office until the election of a new Head of State at the next House of Representatives election.

NON-RESERVE POWERS:

The existing practice that non-reserve powers should be exercised only in accordance with the advice of the Government shall be stated in the Constitution.

RESERVE POWERS:

Existing reserve powers shall be partially-codified as generally provided in the Republic Advisory Committee's 1993 report (see attached) where the Head of State retains appropriate discretion. However, the Head of State shall not dissolve the House of Representatives by reason of the rejection or failure to pass a money bill unless and until the procedures under section 5A of such report have been followed or unless an absolute majority of the House of Representatives has requested such dissolution…

Attachment to the…Direct…Election…Model…

REPUBLIC ADVISORY COMMITTEE 1993

1A Executive Power of the Commonwealth

1. The executive power of the Commonwealth is vested in the Head of State and is exercisable either directly or through Ministers of State (including the Prime Minister) or persons acting with their authority.

2. The executive power of the Commonwealth extends to the execution and maintenance of the Constitution, and the laws of the Commonwealth.

3. The Head of State shall exercise his or her powers and functions in accordance with the advice tendered to him or her by the Federal Executive Council, the Prime Minister or other such Ministers of State as are authorised to do so by the Prime Minister.

4. Subsection (3) does not apply in relation to the exercise of the powers or functions of the Head of State under sections 2A, 3A(4), 4A, 5A and 6A.

2A. Appointment of the Prime Minister

1. The Head of State shall appoint a person, to be known as the Prime Minister, to be the Head of the Government of the Commonwealth.

2. Subject to subsection 3A(4), whenever it is necessary for the Head of State to appoint a Prime Minister, the Head of State shall appoint that person who commands the support of the House of Representatives expressed through a resolution of the House, and in the

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Source: http://www.dpmc.gov.au/convention/model112.html (March 1998) 13

absence of such a resolution, the person who, in his or her judgment, is the most likely to command the support of that House.

3. The Prime Minister shall not hold office for a longer period than 90 days unless he or she is or becomes a member of the House of Representatives.

4. The Prime Minister shall be a member of the Federal Executive Council and shall be one of the Ministers of State for the Commonwealth.

5. The Prime Minister shall hold office, subject to this Constitution, until he or she dies or resigns, or the Head of State terminates his or her appointment.

6. The exercise of power of the Head of State under subsection (2) shall not be examined in any court.

3A. Other Ministers

1. Ministers of State shall be appointed by the Head of State acting in accordance with the advice of the Prime Minister.

2. One of the Ministers of State may be denominated Deputy Prime Minister.

3. Subject to this section, the Head of State shall only remove a Minister from office in accordance with the advice of the Prime Minister.

4. Upon the death of the Prime Minister, the Head of State shall appoint the Deputy Prime Minister or, if there is no Deputy Prime Minister, the Minister most senior in rank, to be the Prime Minister.

5. In this section, "Minister" does not include the Prime Minister.

4A. Dismissal of the Prime Minister—no confidence resolutions

1. If the House of Representatives, by an absolute majority of its members, passes a resolution of confidence in a named person as Prime Minister (other than the person already holding office as Prime Minister), and the Prime Minister does not forthwith resign from office, the Head of State shall remove him or her from office.

2. If the House of Representatives passes, other than by an absolute majority of its members, a resolution of confidence in a named person as Prime Minister (other than the person already holding office as Prime Minister), and the Prime Minister does not within three days resign from office or secure a reversal of that resolution, the Head of State shall remove him or her from office.

3. If the House of Representatives passes a resolution of no confidence in the Prime Minister or the Government by an absolute majority of its members and does not name another person in whom it does have confidence, and the Prime Minister does not, within three days of the passing of that resolution, either resign from office, secure a reversal of that

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resolution or advise the Head of State to dissolve the Parliament, the Head of State shall remove him or her from the office of Prime Minister.

4. If the House of Representatives passes a resolution of no-confidence in the Prime Minister or the Government other than by an absolute majority of its members and does not name another person in whom it does have confidence, and the Prime Minister does not, within seven days of the passing of that resolution, either resign from office, secure a reversal of that resolution or advise the Head of State to dissolve the Parliament, the Head of State shall remove him or her from the office of Prime Minister.

5A. Dismissal of the Prime Minister—constitutional contravention

1. If the Head of State believes that the Government of the Commonwealth is contravening a fundamental provision of this Constitution or is not complying with an order of a court, the Head of State may request the Prime Minister to demonstrate that no contravention is occurring or that the Government is complying with the order.

2. If, after giving the Prime Minister that opportunity, the Head of State still believes that such a contravention or non-compliance is occurring, the Head of State may apply to the High Court for relief.

3. If, on application by the Head of State, the High Court is satisfied that the Government of the Commonwealth is contravening a provision of this Constitution or not complying with the order of a court, the High Court may grant such relief as it sees fit including a declaration to that effect. The High Court shall not decline to hear such application on the ground that it raises non-justiciable issues.

4. If on an application by the Head of State, the High Court declares that the Government of the Commonwealth is contravening this Constitution or not complying with the order of a court and the Prime Minister fails to take all reasonable steps to end the contravention or to ensure compliance with the order, the Head of State may dissolve the House of Representatives.

5. If the Head of State dissolves the House of Representatives under this section, he or she may also terminate the Prime Minister's commission and appoint as Prime Minister such other person who the Head of State believes will take all reasonable steps to end the contravention and who will maintain the administration of the Commonwealth pending the outcome of the general election following the dissolution referred to in subsection (4) above.

6. The exercise of the powers of the Head of State under this section shall not be examined by any court.

6A. Refusal of dissolution

The Head of State shall not dissolve the House of Representatives

1. on the advice of a Prime Minister in whom, or in whose Government, the House of Representatives has passed a resolution of no-confidence, if the House has, by an absolute

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majority of its members, also expressed confidence in another named person as Prime Minister;

2. on the advice of a Prime Minister in whom, or in whose Government, the House of Representatives has passed a resolution of no-confidence, if the House has, other than by an absolute majority of its members, also expressed confidence in another named person as Prime Minister, unless the House has reversed the resolution;

3. while a motion of no confidence in the Prime Minister or the Government is pending; or

4. before the House of Representatives has met after a general election and considered whether it has confidence in the Prime Minister or the Government, unless [the]n House of Representatives has met and is unable to elect a Speaker.

For the purpose of paragraph (c), a "motion of no-confidence" is one which expresses confidence in another named person as Prime Minister and is to come before the House of Representatives within eight days.

MODEL PROPOSED BY THE HON. BILL HAYDEN AC

[A] Nomination Procedure

1. A person who receives the endorsement of one per cent (1%) of voters, by way of petition, enrolled on all Federal Division rolls at the time of nominating should be nominated to stand for direct election.

2. No voter should be able to endorse more than one candidate for election as the Head of State.

[B] Appointment

3. The Head of State should be elected by a national poll at which all voters enrolled on Federal Division rolls should be eligible to vote.

4. Election should be on an optional preferential voting system.

[C] Dismissal

5. Dismissal should only be for proven misbehaviour or incapacity.

6. Dismissal for misconduct should be on a resolution moved by the Prime Minister or his or her deputy and supported by an absolute majority of a joint sitting of the Commonwealth Parliament.

[D] Powers

7. The powers of the Head of State should be the same as those of the Governor-General.

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8. The Constitution should expressly provide that non-reserve powers should only be exercised on the government's advice.

9. There should be a partial codification of the reserve powers in line with the Report of the Republic Advisory Committee recommendation (see pp 102-106).

10. The exercise of the reserve powers, whether codified or not, should be non-justiciable.

11. The existing conventions applying to the Governor-general should govern the Head of State. These conventions should be provided for, by way of reference, in the Constitution.

12. Obsolete powers should be removed.

[E] Qualifications

13. The Head of State should be an Australian citizen of voting age and enrolled on the Federal Division rolls.

[F] Term

14. The Head of State should be appointed for a term of 4 years.

15. No Head of State can serve more than 2 consecutive terms in office…

MODEL PROPOSED BY THE HON. RICHARD MCGARVIE

President chosen by the Prime Minister and appointed or dismissed by a Constitutional Council bound to act as the Prime Minister advises

[A] Nomination

Any Australian citizen may at any time nominate any other Australian citizen to be listed for consideration by the Prime Minister when choosing a President.

[B] Appointment

The citizen chosen by the Prime Minister is to be appointed President by a Constitutional Council in accordance with the Prime Minister's advice (ie binding request) to do so. The Council can only appoint or dismiss a President on the Prime Minister's advice and on receiving that advice is bound by a convention backed by the penalty of public dismissal for breach, to do so.

The three members of the Constitutional Council, who can act by majority, are determined automatically by constitutional formula with places going first to former Governors-General or Presidents, with priority to the most recently retired, and unfilled places going, on the same basis in turn to former State Governors, Lieutenant-Governors (or equivalent), judges of the High Court or judges of the Federal Court. The membership, if it ever reaches the Lieutenant-Governors, would be most unlikely to extend beyond them, but the whole line of categories is necessary to

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ensure that there will always be people from permanent constitutional positions available to constitute the Council. A temporary provision is to operate for thirty years so that if there is no woman in the first two places filled, the third place will go to the woman with the highest priority among the eligible persons.

[C] Dismissal

The President will be dismissed within 2 weeks of the Prime Minister advising the Constitutional Council to do so.

[D] Powers

The President will have the same range of powers as the Governor-General, but, except for the reserve powers, they can only be exercised on the advice of the Federal Executive Council or a Minister. Otherwise there will be no codification of the constitutional conventions. The conventions which are now binding in practice because backed by an effective practical penalty for breach, remain equally binding because the system and its operation and practical penalties remain the same.

[E] Qualifications

The President must be an Australian citizen but otherwise no qualifications are specified.

[F] Term

As with the Governor-General now, the Constitutional Council will appoint the President at pleasure, without any defined term and legally liable to be dismissed at any time. The President, like a Governor-General, will have the political security of tenure which comes from public knowledge that the President has arranged informally with the Prime Minister to serve for a period, usually five years, and the adverse political reaction against the Prime Minister which would follow the dismissal during that period of a President the community regards as complying [with] the conventions and meeting expected standards. A President who did not comply with the constitutional conventions and those standards would lose public support and the political support and the political security of tenure…

Bi-Partisan Appointment of the President Model

[Note: the Bi-Partisan Appointment of the President Model was amended before receiving the support of the Convention. This model, as amended, is set out in the Convention's Communique in Appendix 2.]

A. Nomination Procedure

The objective of the nomination process is to ensure that the Australian people are consulted as thoroughly as possible. This process of consultation shall involve the whole community, including:

• State and Territory parliaments

• local government

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• community organisations, and

• individual members of the public

all of whom should be invited to provide nominations.

All nominations should be published.

Parliament shall establish a Community Constitutional Committee which shall consider and propose a short-list of candidates for consideration by the Prime Minister and the Leader of the Opposition. The Committee shall:

• in its composition, reflect the diversity of the Australian people having regard to gender,

race, age and geographical considerations:

• include representatives of peak community organisations, Commonwealth, State and

Territory Parliaments.

This 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.

B. Appointment or Election Procedure

Having taken into account the report of the Community Constitutional Committee, the Prime Minister shall present a single nomination for the office of President, seconded by the Leader of the Opposition, for approval by a Joint Sitting of both Houses of the Federal Parliament. A two thirds majority will be required to approve the nomination which shall be done without debate.

C. Dismissal Procedure

The President may be removed at any time by a notice in writing signed by the Prime Minister. The President is removed immediately the Prime Minister's written notice is issued. The Prime Minister's action must be presented to a meeting of the House of Representatives for the purpose of its ratification within 30 days of the date of removal of the President. In the event the House of Representatives does not ratify the Prime Minister's action, the President would not be restored to office, but would be eligible for re-appointment. The vote of the House would constitute a vote of no confidence in the Prime Minister.

D. Definition of Powers

The powers of the President shall be the same as those currently exercised by the Governor-General. The non-reserve powers of the President should be codified, and the reserve powers incorporated by reference.

E. Qualifications for Office

Australian citizen, qualified to be a member of the House of Representatives (see s. 44 Constitution).

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F. Term of Office

Five years…

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Appendix 2: The Convention Communique

The Convention met at Canberra from Monday 2 February 1998 until Friday 6 February 1998 and from Monday 9 February 1998 until Friday 13 February 1998.

The Convention considered three questions:

• whether or not Australia should become a republic;

• which republic model should be put to the voters to consider against the current system of

government; and

• in what timeframe and under what circumstances might any change be considered.

The Rt Hon Ian Sinclair MP presided as Chairman, with the Hon Barry Jones AO MP as Deputy Chairman.

The Convention was constituted by 152 delegates. Seventy-six delegates were elected under the Constitutional Convention (Election) Act 1997. The other seventy-six were appointed by the Commonwealth Government and included forty representatives of the Commonwealth, State and Territory Parliaments.

Debate on the Convention floor was positive, with wide participation by delegates. While the debate was robust, a strong spirit of civility and compromise was demonstrated.

Three categories of model for a possible Australian republic were before the Convention. They were: direct election, parliamentary election by a special majority and appointment by a special council following Prime Ministerial nomination. While there was significant support for models in each of these categories, following an exhaustive balloting process the Bipartisan Appointment of the President set out below was endorsed by a majority of delegates who voted for or against the motion.

The Convention also agreed to a range of resolutions relating to the Preamble and to miscellaneous transitional and consequential issues relating to a change to a republic.

The following specific matters were resolved by the Convention:

Whether Australia should become a republic

That this Convention supports, in principle, Australia becoming a republic.

That this Convention supports the adoption of a republican system of government on the "Bipartisan Appointment of the President Model" as set out below in preference to there being no change to the Constitution.

That this Convention recommends to the Prime Minister and Parliament that the Bipartisan Appointment of the President Model, and other related changes to the Constitution, supported by this Convention, be put to the people in a constitutional referendum.

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Timing and circumstances of any change

That a referendum for change to a republic or for the maintenance of the status quo be held in 1999. If the referendum is in favour of a republic, that the new republic come into effect by 1 January 2001.

That prior to the referendum being put to the people, the Government undertake a public education programme directed to the constitutional and other issues relevant to the referendum.

Implications for the States

That the Commonwealth Government and Parliament extend an invitation to State Governments and Parliaments to consider:

The implications for their respective Constitutions of any proposal that Australia become a republic; and

The consequences to the Federation if one or more States should decline to accept republican status.

That any move to a republic at the Commonwealth level should not impinge on State autonomy, and the title, role, powers, appointment and dismissal of State heads of state should continue to be determined by each State.

While it is desirable that the advent of the republican government occur simultaneously in the Commonwealth and all States, not all States may wish, or be able, to move to a republic within the timeframe established by the Commonwealth. That the Government and Parliament should accordingly consider whether specific provision needs to be made to enable States to retain their current constitutional arrangements.

The Bipartisan Appointment of the President Model.

In the event that Australia becomes a republic, the model adopted be the Bipartisan Appointment of the President Model.

Nomination Procedure

The objective of the nomination process is to ensure that the Australian people are consulted as thoroughly as possible. This process of consultation shall involve the whole community, including:

State and Territory Parliaments;

local government;

community organisations, and

individual members of the public

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all of whom should be invited to provide nominations.

Parliament shall establish a Committee which will have responsibility for considering the nominations for the position of President. The Committee shall report to the Prime Minister.

While recognising the need for the Committee to be of a workable size, its composition should have a balance between parliamentary (including representatives of all parties with party status in the Commonwealth Parliament) and community membership and take into account so far as practicable considerations of federalism, gender, age and cultural diversity.

The Committee should be mindful of community diversity in the compilation of a short-list of candidates for consideration by the Prime Minister.

This 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; and

The Committee should not disclose any nomination without the consent of the nominee.

Appointment or Election Procedure

Having taken into account the report of the Committee, the Prime Minister shall present a single nomination for the office of President, seconded by the Leader of the Opposition, for approval by a Joint Sitting of both Houses of the Federal Parliament. A two thirds majority will be required to approve the nomination.

Dismissal Procedure

The President may be removed at any time by a notice in writing signed by the Prime Minister. The President is removed immediately the Prime Minister’s written notice is issued. The Prime Minister’s action must be presented to a meeting of the House of Representatives for the purpose of its ratification within 30 days of the date of removal of the President. In the event the House of Representatives does not ratify the Prime Minister’s action, the President would not be restored to office, but would be eligible for re-appointment. The vote of the House would constitute a vote of no confidence in the Prime Minister.

Definition of Powers

The powers of the President shall be the same as those currently exercised by the Governor General.

To that end, the Convention recommends that the Parliament consider:

the non-reserve powers (those exercised in accordance with ministerial advice) being spelled out so far as practicable; and

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a statement that the reserve powers and the conventions relating to their exercise continue to exist.

Qualifications for Office

Australian citizen, qualified to be a member of the House of Representatives (see s. 44 Constitution).

Term of Office

Five years.

A Preamble

The Convention also resolved that the Constitution include a Preamble, noting that the existing Preamble before the Covering Clauses of the Imperial Act which enacted the Australian Constitution (and which is not itself part of our Constitution) would remain intact.

Any provisions of the Constitution Act which have continuing force should be moved into the Constitution itself and those which do not should be repealed.

The Preamble to the Constitution should contain the following elements:

Introductory language in the form "We the people of Australia";

Reference to "Almighty God";

Reference to the origins of the Constitution, and acknowledgment that the Commonwealth has evolved into an independent, democratic and sovereign nation under the Crown;

Recognition of our federal system of representative democracy and responsible government;

Affirmation of the rule of law;

Acknowledgment of the original occupancy and custodianship of Australia by Aboriginal peoples and Torres Strait Islanders;

Recognition of Australia’s cultural diversity;

Affirmation of respect for our unique land and the environment;

Reference to the people of Australia having agreed to re-constitute our system of government as a republic;

Concluding language to the effect that "[We the people of Australia] asserting our sovereignty, commit ourselves to this Constitution"; and

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A provision allowing ongoing consideration of constitutional change.

The following matters be considered for inclusion in the Preamble:

Affirmation of the equality of all people before the law;

Recognition of gender equality; and

Recognition that Aboriginal people and Torres Strait islanders have continuing rights by virtue of their status as Australia’s indigenous peoples.

Care should be taken to draft the Preamble in such a way that it does not have implications for the interpretation of the Constitution.

Chapter 3 of the Constitution should state that the Preamble not be used to interpret the other provisions of the Constitution.

Other issues

As to other issues, the Convention resolved that, in the event Australia becomes a republic:

the name "Commonwealth of Australia" be retained

Australia remain a member of the Commonwealth of Nations in accordance with the rules of the Commonwealth.

the title of the head of state should be "President".

the head of state should swear or affirm an oath of allegiance and an oath of office,

The oath or allegiance might appropriately be modelled on that provided by the Australian Citizenship Act 1948 as follows:

[Under God] I pledge my loyalty to Australia and its people, whose democratic beliefs I share, whose rights and liberties I respect and whose laws I will uphold and obey.

The oath [or affirmation] of office might appropriately be modelled on the following words:

I swear, humbly relying on the blessing of Almighty God, [or, I do solemnly and sincerely affirm and declare] that I will give my undivided loyalty to and will well and truly serve the Commonwealth of Australia and all its people according to law in the office of the President of the

Commonwealth of Australia, and I will do right to all manner of people after the laws and usages of the Commonwealth of Australia without fear or favour, affection or ill will

or

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I swear [or affirm] that I will be loyal to and serve Australia and all its people according to law without fear or favour.

The Commonwealth Government and Commonwealth Parliament give consideration to the transitional and consequential matters which will need to be addressed, by way of constitutional amendment or other legislative or executive action, including:

The date of commencement of the new provisions;

The commencement in office of the head of state upon oath or affirmation;

Provision for an acting head of state in certain circumstances;

Provision for continuation of prerogative powers, privileges and immunities until otherwise provided;

Provision for salary and pension;

Provision for voluntary resignation;

Provision for the continued use, if and where appropriate, of the term Royal, Crown or other related terms, and use of the royal insignia, by the Defence Forces or any other government body;

Provision for the continued use of the term Royal, Crown or other related term, and use of royal insignia, by non-government organisations;

Provision for notes and coins bearing The Queen’s image to be progressively withdrawn from circulation; and

Provision to ensure that any change to the term Crown land, Crown lease or other related term does not affect existing rights and entitlements to land;

Spent or transitory provisions of the Constitution should be removed.

The head of state should be an Australian citizen;

The head of state should be eligible to vote in an election for the Senate or House of Representatives at the time of nomination;

The head of state should not be a member of any political party;

The head of state should be subject to the same disqualifications as set out in section 44 of the Constitution in relation to members of Parliament; and

Any future amendments to section 44 of the Constitution should also apply to the head of state.

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Ongoing constitutional review process

The Convention also resolved that, if a republican system of government should be introduced by referendum, at a date being not less than three years or more than five years thereafter the Commonwealth Government should convene a further Constitutional Convention.

Two-thirds of such Convention should be directly elected by the people.

The agenda of such Convention would be to :

Review the operation and effectiveness of any republican system of government introduced by a constitutional referendum;

Address any other matter related to the operation of our system of government under republican arrangements, including: the role of the three tiers of government; the rights and responsibilities of citizenship; whether the Commonwealth should have an environment power; the system of governance and proportional representation; whether the mechanism for constitutional change should be altered; constitutional aspects of indigenous reconciliation; equal representation of women and men in parliament; and ways to better involve people in the political process.

The Convention be preceded by an extensive and properly resourced community consultation process, to commence within twelve months of the passage of a referendum to establish a republic, in which ideas and responses on the above matters would be actively sought by the Government and Parliament.

Australian Flag and Coat of Arms

In addition to the matters on which resolutions were adopted, the Australian Flag and Coat of Arms were also raised in debate before the Convention. While it was beyond the terms of reference for this Convention to make formal resolutions on the issue, the Chairman undertook to draw the discussion to the attention of the Government.

A number of delegates sought entrenchment of the design of the Australian Flag and Coat of Arms in the Constitution so that they could not be changed without the necessary majority at a referendum. Other delegates did not support incorporation in the Constitution but agreed that the Flag should not altered without a vote of all electors.

Full details of the proceedings and details of the voting on final resolutions will be presented to the Commonwealth Parliament and published in a report of the Convention.

Signed on behalf of delegates, this thirteenth day of February 1998

Ian Sinclair Barry Jones

Chairman Deputy Chairman