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Submission on constitution monarchy from Senator Ron Boswell



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FEB 14 '97 1E

: 47PM SENATOR RON BOSWELL 'BRISBANE'

Special Federal Council - National Part y of Australia- I March 1997

Suhmi n sion on Constitutional Monarchy from Senator Ron Boswell

"There is nothing particularly novel or bizarre in the suggestion that we should dispense with the monarchy. This proposal has been made regularly over the past century, and even the first meeting of Australia's founding fathers at Sydney in 1891 saw the redoubtable and garrulous Sir George Grey put in a performance strikingly similar to that of such later republicans as Donald Home. Since then, there has been a

strong undercurrent of republicanism in Australia, which has waxed and waned in response to circumstances." Greg Craven ,Reader in Law, University of Melbourne anal Minefield o Australia ReukJkajjism

I believe the National Party should support and endorse the continuation of our present Constitutional Monarchy system of government..

The present Australian constitutional monarchy has demonstrated a proven and enduring capacity to deal with and adapt to all circumstances over the past 96 years, which must give it a proven capacity to appropriately deal with all matters that arise in the future. The Constitution has never presented an impediment or restriction on the development and progress of the Australian nation.

• Our present system of government includes important checks and balances on the exercise of power within government which have been tried and tested. Its continuation provides certainty, without disruption from teething and unanticipated problems from any new system, and any challenge in the courts. There is always a great unknown attached to new and untried arrangements, despite how carefully the legislative draftspeople may have thought it through. An example is the Native title Act and the unintended and plethora of associated problems which have arisen from a major change to our land tenure system..

Our present system goes beyond the argument of "if it ain't broke don't fix it" The machinery provided by the constitution not only operates smoothly, it includes its own method of change ,through referendum, and has a proven track record to cope with new and emerging changes.

Therefore as the present system has proven to be stable, secure and able to deal with any conflict that may arise; all aspects of alternative systems must be examined and compared against the stability achieved through the present system. The ultimate aim must be to provide Australians with the best system available.

FEB 14 '97 1E 47PM SENRTOR RON BOSWELL (BRISBANE'

P. /5

Presently both the Constitutional monarchists and the pro republicans agree that

Australia is : 1. a "crowned" republic, being republican in nature, that is where the people make the decisions. A republic is essentially a state based upon popular sovereignty, in which all offices

are held by persons deriving power from the people directly or indirectly. In view of section 128 (the referendum section)of the Constitution Australia is already largely a republic , except that the office at the very apex of the constitutional edifice is not occupied by a person deriving authority from the people , but instead from hereditary entitlement - or from God." George Wintetton "On the Road to the Republic"

"in substance and effect , the Australian constitutional system is truly republican because the people are sovereign and all the institutions of government are subject to the rule of the Constitution with its checks and balances." ..."endorsement by popular referendum is the ultimate republican legitimator, , and is

superior to endorsement by constituent states which the Americans followed." Professor Brian Galligan "Recognising our Federal Republic" Director of the federalism research Centre" ANU

Sovereignty does not reside in the Crown but "Ultimately sovereignty resides in the Australian people" Chief Justice Mason Australian Capital Television Pty Ltd v. Commonwealth (1992)

2. Fundamental republican principles are contained in the Australian constitutional system which in turn embodies a number of fundamental principles including representative government , federalism, the independence of the judicia ry , judicial review of the validity of legislation and responsible government under the

crown."

3. Australia Is a completely Independent country- we are completely free of legislative, executive, judicial, administrative or any other formal links to the United Kingdom- Statute of Westminster 1931, Australia Act 1986

4. The Queen would never interfere in the Executive government of Australia.. "in 1975. the Queens herself declined to intervene in our Australian constitutional crisis .,.

This was as the Constitution required and as befits an independent country. The Queens respected this." Michael Kirby Quadrant 1993 "A defence of the Constitutional Monarchy."

5. The republicans speak of the need for Australia to have an Australian as Its Head of State. The Head of State (Governor General) is an Australian, and will always be in the future.

6. Australia's constitution, as evidenced by history was "made in Australia".

FEB 14

'97 12 : 48PM SENATOR RON BOSWELL (BRISBANE)

P. 3/5

3

WHAT FORM OF REPUBLIC MUIIN. G PROPOSED

Essential issues relating to changes from a constitutional monarchy to a republic are as follows: 1. Should there be a "minimalist" approach where the only change is deletion of the Queen in the Constitution and replacement of Governor General with all powers intact with a "President." or, should we adopt a republic where many other aspects of executive government are

also reformed. The public view of the ALP and the ARM are for a "minimalist" approach.. Whereas others see the change to a republic as an opportunity to make more wide ranging reforms "prepare a system of government for the 21st century rather than reproducing the last one. "Professor Cheryl Sanders

The National Party whilst endorsing the present Constitutional monarchy should strongly oppose wide ranging changes to the Constitution.

In a minimalist republic the main issues are: 1. Powers of Appointment and dismissal of the Head of state -2. what system should choose the head of state 1 3. Should the Head of state have reserve powers

4. Should these powers be codified so their extent is precisely known, 5. should the Head of state only act on advice

In considering these issues I would like the point out the problems that arise should Australia become a republic and how our present system avoids these problems and instead guarantees proven certainty.

PoDuiar vt for Presidentand exere serve P rs

Popular vote for appointment would result in an election campaign with rival

candidates supported by respective political parties .This would risk tainting future actions of the elected President which would always carry that perception, rather than meeting the essential requirement of political neutrality which is achieved under our present system, It would also introduce into our system conflict between a President and the Prime Minister. Kirby J. warns of the double problem arising from a popularly elected President exercising the reserve powers

" there is a risk that a local Head of State - especially one enjoying the legitimacy of a vote into office - would assert and exercise reserve powers which would be most unlikely to be used by an appointed Governor General or State Governor."- pointing out the instability of two potential heads of a political system, where it occurs , for example in Russia and Pakistan..

FEB 14 '97 .2

: 48PM SENATOR RON BOS4ELL (BRISBANE; P•4/S

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Election and Dismissal of Head of State b y .a two third$ majority of both Houses

ofparliament

The ARM proposes that the Head of State be appointed and dismissed by this method.

While this seems a preferable method to the politicisation and risks to political neutrality which would arise from a popular vote, when examining it against the record majorities in 1996 and 1975 - a two thirds majority would not enable this to happen. The question arises could a Head of State be appointed or dismissed on a political basis and the method adopted also needs to be available for dismissal in cases of gross incompetence.

Australians for Constitutional Monarchy refer to the example of a Head of State refusing to appoint John Howard as Prime Minister following the 1996 electoral landslide and the recommissioning of Paul Keating. "Even if the Parliament could meet to debate a motion to remove the President (and the President could prorogue the Parliament so that it did not finish the debate), the President could not be removed

without the agreement of at least some of the ALP members of Parliament.

1996 Howard/ Fischer government On the record 1996 government majority-a two thirds vote would be 144 - the present Combined Coalition vote in the House of Representatives and Senate is 133, plus 10 comprised of Democrats,= 7, Greens = 2 Others=2 . Lib/NP 94+37 — 131 ALP 49+29z77

A combined ALP/ Others vote would be - 88 A combined Lib/NP + others vote would be - 142..

1975 Whillam ALP ent: l members

At the time of the 1975 Whitlam dismissal the numbers were House of Reps/ Senate ALP 66 / 27 = 92 Lib/CP 62129 = 91

Others = 4 Of 187 combined Parliament, a two thirds majority for the government to dismiss the Governor General would have been 126 - way beyond the ALP + others

1975 Fraser1Anthonv government: 191 members (new senators from ACT(2) and NT[Zl Lib/NP = 126 ALP = 63 Others = 2 Combined Parliament - 191 Two thirds majority needed to dismiss a Governor General required 128

FEB 14 '97 12

: 4ePM SENATOR RON BOSWELL (BRISBANE) P.5%5

Prorrsal to replace in Constitution . the power of the Queen with the Chief

Justice to appointand i miss theGovernor-General on advice thePrune ' Minister

Presently the Governor General is appointed by the Queen on the advice of the Prime Minister.

According to Professor Cheryl Saunders . this would require limited constitutional change • the Queen presently has some undefined influence on the Prime Minister's choice which makes unfettered power of Prime Minister more acceptable.

. to replace Queen with Chief Justice would risk the judicial role and the separation of judicial power which is designed to ensure the actual and perceived independence of courts and judges from other branches of government." and be a significant departure from this principle"

The National Party should not support any interference with the established principle of separation of powers It is also interesting to refer to Graham Richardson's Bulletin article where he refers to the intense political lobbying for High Court judges , referring to two present High court Judges for whom he personally lobbied.

Codification of Reserve Poweri

These are powers to act without or contrary to ministerial advice, as were exercised by Sir John Kerr in 1975. They cover the powers to appoint and dismiss the Prime Minister and to dissolve Parliament. Republicans believe in Parliament defining these powers when the Head of State can appoint and dismiss a Prime Minister and dissolve Parliament, or to even extend them

• for example the suggestion by republican George Winterton "to provide for fixed Parliamentary terms by restricting the president's power to dissolve parliament." Winterton "Can a Republic Work- Formula for a Presidency- 1992"

I believe codification is not desirable. It opens the written powers up to legal challenge and to continual development and extension .Reserve powers are governed by convention which have evolved over history with the capacity to evolve and adapt

over time following application to real events and circumstances. With these powers being codified they could only be adapted or changed to meet modern circumstances through legislation or court challenge, introducing the opportunity for changes to be politically or ideologically based.

The National Party should reject any codification of the reserve powers of the Head of State.