Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Why I am voting YES: debunking legal myths associated with the constitutional debate and the referendum, Parliament House, Macquarie Street, Sydney, Tuesday 26 October 1999, 6:30 pm.



Download WordDownload Word

image

 

The Hon Daryl Williams, AM QC MP

Attorney-General

 

Why I am voting “Yes”

Tuesday, 26 October 1999 6:30pm

 

Debunking legal myths associated with

The constitutional debate and the

Referendum

 

Parliament House

Macquarie Street

Sydney

 

1 Good evening.  I am pleased to have this opportunity to speak to you in support of the “Yes” vote for the republic referendum, now less than 2 weeks away.  I want to tell you why I will be voting “Yes” for the republic on 6 November.

2 I am especially pleased to be speaking to you in a place which has a special connection with Australian Federation.  As the century draws to a close, and as the people of Australia contemplate the important decision we have to make on November 6, it is well to recall the events of a century past, when the people of six squabbling colonies were faced with an even more momentous choice. 

3 Our decision is, in an important way, an opportunity to bring to fulfilment the work which began in the 1890s, much of which was undertaken in this very building.

4 Between 2 March and 9 April 1891, the National Australasian Convention met in Sydney in the Legislative Assembly chamber.  The purpose of the Convention was ‘to consider and report upon an adequate scheme for a Federal Constitution’. [1]

5 The Conven tion succeeded in drafting a Bill to Constitute the Commonwealth of Australia, which became, with some changes, the Constitution we have today. [2]   That Constitution married the principles of responsible and representative government with federalism

6 It was during the 1891 Sydney Convention that a drafting sub-committee, consisting of Sir Samuel Griffith from Queensland, Sir Edmund Barton from NSW, Charles Kingston from South Australia and Andrew Inglis Clark from Tasmania, spent 3 days on the Hawkesbury on board the Queensland Government’s yacht, the Lucinda, refining the draft Constitution. 

7 Garran describes how the Constitution was written:

‘The whole process of drafting [at the Convention] was completed in twelve days, during which federation came d own from the skies to the earth, and from a vague aspiration was crystallised into a precise plan setting out the terms of a federal compact.’ [3]

8 Of course, the path to constitutional change never runs smoothly, and after 1891 the federation movement app eared to falter for some years, especially in NSW. [4]    But as the people increasingly pressed for Federation, the pressures on the politicians to act became stronger.  The path to Federation was enormously assisted by a suggestion which came from John Quick at the Corowa Conference in July/August 1893, for a mechanism to approve the Constitution.  This was for a popularly elected Convention which would adopt a Constitution, followed by a referendum to enable the people to approve the Constitution.  Quick’s suggestion was adopted.

9 As a result, the people of the six colonies elected delegates to the Australasian Federal Convention in 1897-98, which hammered out the final version of Australia’s Constitution.  The second session of the Convention was held in Sydney, in the Legislative Assembly chamber beside us.

10 It took two referendums for the people of New South Wales to say “yes” to Federation.  With that experience behind them, I trust they will only need one referendum to say ‘Yes’ to the republic.  Indeed, at least since 1945, ‘voters in New South Wales have proved to be very much stronger supporters of constitutional change than voters in the other States’. [5]

11 The Federation debates of the 1890s are not dissimilar to the republic referendum discussions we are now having.  Scaremongering was not unknown, and the campaigns saw some odd bedfellows.  Thus the Anti-Constitution Bill party in NSW during the referendum campaign in 1898 posed as federalists, but they claimed to want federalism only “on terms just to New South Wales’. [6]  

12 What is most interesting to learn from the debates of the 1890s was the extent to which all sides were eventually required to compromise.  The smaller states were obliged to accept a Senate which could not impose taxation or amend money bills;  the larger States had to put up with having a Senate which could impede the freedom of action of the popularly elected House of Representatives.

13 In the end, however, the shared objective of achieving Federation was greater than achieving their particular aims.  So what is also instructive about the 1890s is our forebears’ optimism about Australia’s future.

14 As we face our own constitutional ch oice, as a developed and mature nation, we should remember that sometimes it is necessary to set aside our own preferences in order to achieve a greater objective. 

15 Many republicans who might have favoured, in the best of all possible worlds, a model somewhat different from the one which will be before us on November 6, have decided to set aside their personal preferences, recognising that compromise is an essential feature of decision-making in a democratic society.

16 Others say they will not compromise, and still insist on a direct election model, even though that model failed to take on any definite form, or attract majority support, at the Constitutional Convention.  The failure to articulate a detailed workable model for direct election, capable of getting broad support, remains the fundamental problem for those who support the direct election cause. 

17 Returning to the real republic that is on offer, I want to tell you why I will vote for this republic, and why I think the people of Australia should regard the republic on offer as a safe and workable proposal that deserves their support.

The republic

 

18 I believe Australia should have one of its own citizens as head of state. 

Nothing less is appropriate for an independent, sovereign nation at t
he beginning of the 21st century. 

19 As Attorney-General, I had ministerial responsibility for preparing the legislation to present the Constitutional Convention's preferred model to the people.  I am confident that the republic model on which we will soon be voting is safe, workable and continues our tradition of stable parliamentary democracy.

20 I am very concerned about various misleading claims by those advocating a “No” vote that have been made in the course of the campaigns.  The referendum ‘silly season’ is well and truly here, with scaremongering taking the place of reasoned and factual debate.  Indeed, misinformation is so rife that it, together with the historical inclination of Australians to vote ‘No’ to referendum proposals, have made me appreciate Professor Michael Coper’s suggestion that all referendum questions should be negative propositions. [7]   In our case:  ‘Do you want to retain the Queen as head of state?’

21 The most recent example of misinformation was the suggestion made today by some monarchists that military pensioners and their families could not aspire to be President under the proposed Republic model.  The claim is yet another example of a mischievous misinformation campaign.

22 Even a cursory glimpse at the explanatory memorandum of the Republic Bill would conclusively show that Australian servicemen and women and their families, like all other Australians, will be able to aspire to become Australia’s head of state.  Anyone who receives an Australian military pension is not currently disqualified by subsection 44(iv) of the Constitution from membership of Parliament and would not be disqualified under the proposed changes to the Constitution.

23 Subsection 44(iv) of the Constitution currently disqualifies people who receive pensions ‘payable during the pleasure of the Crown’.  This does not cover modern pensions, such as Australian military pensions, which are payable under legislation.  The proposed amendments of the second paragraph of section 44 would simply remove references to ‘the Queen’ and ‘the Queen’s navy’. 

These references relate only to the Queen’s ministers of State and the British navy or army  (as opposed to the Commonwealth’s servicemen and women).  Like the other amendments in Schedule 2 of the Republic Bill, the proposed amendments of section 44 of the Constitution are simply consequential in nature.

24 I call on those who propose a ‘No’ vote on 6 November to debate real issues of importance, rather than continue to spread false and emotionally manipulative information.

Selecting the President

 

25 Before concluding, I would like to say something more about the selection, powers and dismissal of a President to show why the model is such a safe choice.

26 Any Australian citizen qualified to be elected as a member of the Commonwealth Parliament could become President.  However, a serving politician or a member of a political party could not become President. 

27 A committee would be established to invite and consider nominations from the public for the position of President.  The Prime Minister would consider a report from the committee before putting forward a single nomination to a joint sitting of both Houses of the Commonwealth Parliament.  The nomination would take effect if seconded by the Leader of the Opposition and approved by a two-thirds majority of all the members of the Commonwealth Parliament.

28 To suggest that the model on offer is a ‘politician’s republic’ is simply ludicrous. 

In democratic terms, it would be a distinct improvement on what we have now.

Re moving the President

 

29 The Prime Minister could remove the President by issuing a written instrument of removal.  The Prime Minister would be required to seek the approval of the House of Representatives for that action within 30 days, unless an election were called and the matter taken directly to the people.

30 At present, the Queen would have to remove a Governor-General if advised to do so by the Prime Minister.  Despite claims to the contrary, the republic legislation does not make the removal of a President any more likely than the removal of a Governor-General.  Indeed, it makes it less likely. 

31 While a Prime Minister who advised the Queen to dismiss a Governor-General could immediately choose a new Governor-General, a Prime Minister dismissing a President would need to seek the approval of the House of Representatives.  An acting President identified by the Constitution and not chosen by the Prime Minister would take office - namely, the longest-serving State governor available.  The Prime Minister would have to go through the whole lengthy process for selecting a new President.  This would include public consultation and nominations, consideration by the Presidential Nominations Committee of the nominations and agreement on a short list, and finally the approval of the Leader of the Opposition and two-thirds of the members of Parliament to the appointment of a new President.  All of this would ensure that the dismissal of a President would be the subject of intense public scrutiny and would have profound political repercussions. 

32 Some among you this evening may be aware that the last time the bogey of the Prime Minister’s stooge was raised was in 1930-31.  Early in 1930, Cabinet decided to recommend that Sir Isaac Isaacs, then Chief Justice of the High Court, be appointed as the next Governor-General.  Rumours that Prime Minister Scullin intended to advise King George V to appoint Isaacs leaked.  There was uproar, and opposition from many quarters to the appointment of an Australian on the advice of an Australian.  Many people were fearful ‘that if Governors-General owed their appointments to the Prime Minister of Australia, there would be “all sort of political tools and hacks subservient to political parties”’ appointed as Governor-General. [8]    It was considered that only an Englishman (of the right class) would be above Australian politics. [9]   The King objected to Isaacs’ appointment, but was ultimately forced to agree to it, following a threat by Scullin that he was prepared to hold a referendum on Isaacs’ appointment.

33 How instructive that the prospect of an Australian President is being attacked in the same way and on the same grounds that the first Australian Governor-General was attacked.  The attacks and the fears of 70 years ago were groundless, and the attacks and the fears of today are equally groundless.  The proposed provisions for selecting and removing a President all place important practical constraints on capricious prime ministerial action: certainly more so than we have now.

34 The republic model on which we will be voting is safe, workable, and accountable. 

It is better than the system we currently have, while at the same time it represents a conservative evolution of  that system. 

35 I believe we should have an Australian as our head of state.  I also believe that Australia’s head of state should be a person for whom that office is, and is seen to be, his or her principal office.  I consider it wrong that a head of state should attain that office bacause they are the head of state of the United Kingdom.  From the point of view of the international community, there is no doubt that the Queen is seen primarily as the head of state of the United Kingdom.

36 Except for the adoption of an Australian head of state, the model on which we will vote makes no change to the day to day operation of our system of national government.  It preserves the fundamental structure of our Constitution and the principles it embodies: representative democracy, responsible government, the rule of law, and an independent federal judiciary.

37 The Commonwealth Parliament would continue, with the same powers.  The Cabinet and Federal Executive Council would continue, with the same powers.  The Government would remain responsible directly to the Parliament.  The court system would not change.  The relationship between the Commonwealth and the States would not change.  The flag and national anthem and number of public holidays would not change.  If Australia became a republic, it would remain a member of the Commonwealth of Nations and it would continue to participate in the Commonwealth Games.  More than half the member nations of the Commonwealth are republics.

38 The proposed republic model would not produce any changes of substance to the basic governm ental and political arrangements that have served Australia so well since Federation.

Conclusion

 

39 On the threshold of the 21st century, the question whether Australia should have a republic is clearly one for Australia and Australians.  The Australian people will make this choice on 6 November.

40 The Government’s object has been to give the Australian people a safe and workable model on which to vote.

41 I believe that the Government has achieved its object.  The republic model will continue our tradition of stable parliamentary democracy and give Australia an Australian head of state.

42 People can safely vote for change on 6 November. 

I shall certainly do so, and I sincerely hope that a  majority of the voters of NSW will do so too. 

 

[1] J Quick and R R Garran, The Annotated Constitution of the Commonwealth of Australia , 1901, Angus & Robertson,, p.123 and ‘Historical Note’ in One People, One Destiny , Papers given at a series of Senate Department Occasional Lectures to commemorate the centenary of the National Australasian Convention 1891, p.1.

[2] One People, One Destiny , id.

[3] Ibid, p.98.  Other eyewitness accounts by Alfred Deakin and B K Wise are reported in Z Cowen, ibid.  For a full account of the Convention, see J A La Nauze, The Making of the Australian Constitution, MUP, 1972.

[4] Garran called it ‘the doldrums’ ibid, p.99-100.  But, [l]eft for dead by the politicians, federation was brought to life by the people’ (ibid, p.101).

[5] E Campbell, ‘Southey Memorial Lecture 1988: Changing the Constitution - Past and Future’ (1989) 17 Melbourne University Law Review 1, at p.6.

[6] Garran, ibid, p.125.

[7] M Coper, Encounters with the Australian Constitution, CCH Australia Ltd, 1987, p.377, recounted in J McMillan, ‘Constitutional Reform in Australia’, One People, One Destiny, p. 71.

[8] Z Cowen, Isaac Isaacs , Oxford University Press, 1967, p.193.

[9] Ibid, ch.8.

 

 

 

jy  1999-10-28  09:35