Bills Digest 131 1996-97 Constitutional Convention (Election) Bill 1997


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WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History

Constitutional Convention (Election) Bill 1997

Date Introduced: 26 March 1997
House: House of Representatives
Portfolio: Administrative Services
Commencement: Royal Assent

Purpose

The Bill establishes the procedural mechanisms for electing delegates to the proposed Constitution Convention (planned to be conducted in 1997).It is the Government's intention that the Convention will be made up of both elected and non-elected delegates.The Bill does not, however, deal with non-elected (ie. appointed) delegates.

Background

The debate about whether Australia should become a republic has a history dating back over the past two hundred years.(1)Indeed one prominent commentator, Mark McKenna suggests in The Captive Republic: A History of Republicanism in Australia 1788-1996, that belief in the 'inevitably' of an Australian republic 'was already planted in 1788 when the First Fleet sailed into Sydney Harbour.'(2)However, McKenna continues, the 'inevitably' of the republic has also been used by some Australians 'to delay the coming of the republic as much as they have used it to legitimise the republic's arrival.'(3)

The existing Commonwealth Constitution was arrived at following the National Australasian Convention of 1891 and the 1897 Adelaide Convention (which re-convened in Sydney in 1897 and in Melbourne in 1898).Delegates to the 1891 National Australasian Convention were appointed by the colonial Parliaments.In the main, delegates to the 1897-98 Conventions were elected directly by the people in their respective colony.(4)

A Convention to consider amendments to the Constitution was held between 3-7 September 1973 in Sydney, with further sessions between 24-26 September 1975, 27-29 October 1976, 26-28 July 1978, April 1983, and 29 July-1 August 1985.

112 delegates met in Sydney between 3-7 September 1973.The delegates were weighted heavily in favour of the States:

States: = 72

Northern Territory: = 2

Commonwealth: = 16

Local Govt: = 22 (3 from each State and 2 each from NT and ACT)

Delegates were appointed to the Convention.At the Commonwealth level, the Government and Opposition each appointed 8 delegates.(5)Delegates considered a wide range of issues including financial relations between the States and the Commonwealth, the capacity of Territorians to vote in referenda and the jurisdiction of the High Court.The Convention made some 130 recommendations of which four were put before the people in a referendum on 21 May 1977 with three passing.(6)In December 1985, the Hawke Government set up the Constitutional Commission which ran from 1985-88.

As is well known, in order to change the Constitution a referendum is required pursuant to section 128 of the Constitution.Since Federation 42 amendments have been put to the people (at 18 referenda), of which 8 have been successful in amending the Constitution.(7)

Prior to the last Federal election, Prime Minister Keating proposed (on 14 February 1996) putting to the people a plebiscite on the question: 'Do you want an Australian to be Australia's head of State?'If the plebiscite was carried, a parliamentary committee would then draft the necessary Constitutional amendments to be put to the people at a referendum.On 15 February 1996, the then Leader of the Opposition, Mr Howard MP, said such a proposal 'could lead to the "ludicrous" situation where a plebiscite on whether there should be an Australian head of state was carried, but a referendum on Australia becoming a republic was defeated.'(8)

The Constitutional Convention Bill 1997 ('the Bill') is the latest formal consideration of the alleged inadequacies of the Constitution and the latest major contribution to the ongoing debate on whether Australia should become a republic.The introduction of the Bill is part of the Government's election promise to hold a convention on whether or not Australia should change its constitution to become a republic.In the Second Reading Speech to the Constitutional Convention Bill 1997 (26 March 1997), the Prime Minister, Mr John Howard, said that the Bill provides for the election of half of the delegates to the Constitution Convention to be held over 10 days in December 1997.

In addition to the 76 elected delegates, 76 will be appointed by the Government.Of the appointed delegates, Mr Howard said 40 would be parliamentarians (20 from the Commonwealth and 20 from the States and Territories).The remaining 36 delegates would be appointed from outside parliament and would include Aboriginal people and Torres Strait Islanders, local government representatives and 'young people aged between 18 and 25 years.'

The extent of popular participation in the process culminating in the current Australian Constitution (eg the delegates were all male) has been much discussed.(9)While delegates to the 1897-98 Conventions had a draft constitution to consider, the delegates (who had in the main been directly elected by the people in their respective colonies) were keenly aware of the need to win the support of the Australian people in order for federation and the constitution to become reality.For example, on 14 April 1897, during the Adelaide Convention Debates, Barton (NSW) stated that Federation would not be achieved without the sanction of public opinion.(10)This much remains true today.Without the support of the Australian people there can be no change to the Constitution.

The Prime Minister said that the Convention provided for in the Bill is to be a 'forum of discussion' about whether or not Australia should become a republic.In particular, Mr Howard said the Convention will consider:

  • whether or not Australia should become a republic;
  • which republic model should be put to the electorate to consider against the status quo; and
  • in what time frame and under what circumstances might any changes be considered.

Responding to Mr Howard's Second Reading Speech, the Leader of the Opposition, Mr Beazley said 'it is a pity it is not a bill for a direct vote of the Australian people on the question of whether or not Australia should have a head of state.'In a Statement issued on 4 December 1996, Mr Beazley proposed a three step process to advance the republic debate.That process would involve, first, an Indicative Plebiscite to ascertain whether the people wish to move to a republic.If the 'yes' vote was carried, a Joint Parliamentary Committee, would, following extensive community consultation report to Parliament on the questions to be put at a referendum.Third, a Referendum held, at the latest, in 1999.(11)

Mr Howard, in the Second Reading Speech, noted that many Australians favoured a 'change to a republican form of government', but said he was aware that the 'existing constitution had served Australia well, providing stable and effective democratic government.'Mr Howard further noted that if there is to be a change in our system of government, that change shouldbe 'through a process that unites rather than divides the Australian community.'

Mr Howard also stated that:

The coalition had previously contemplated referring other constitutional issues to the convention but has decided that, on balance, this convention should deal only with the question of the head of state and, therefore, any possible change to a republican form of government.

For example, in a recent article published in the Australian National Review, Mr Ray Braithwaite, former National Party member for Dawson, QLD, raised a number of issues he thought appropriate for the Convention:

A question for the convention should be what changes are required in the Constitution to ensure the High Court operates as an interpreter of the law, and not as a legislator. (12)

Mr Braithwaite also suggested a constitutional amendment requiring that 'a government must balance its Budget.'(13)

In an article published in the same edition of the Australian National Review, Sir David Smith suggested, that unlike the minimalists, who sought only a change to the Australian head of state, many republicans and monarchists would like to see other matters debated by a people's convention:

such matters as, for example, giving the States a say in High Court appointments or four year terms for the House of Representatives, or the creation of new States, or constitutional recognition of local government, or amending the constitutional provisions relating to the qualifications of members of Parliament, or limiting the Commonwealth's use of the external affairs power, to name just a few.(14)

In a letter published in the Financial Review (21 January 1997), the Deputy Prime Minister, Mr Fisher, re-iterated his support for the existing Constitution, and clarified his proposed 'minimalist' option for Constitutional change should Australia decide to remove 'the Monarch from the equation'.Mr Fisher suggested:

that the Chief Justice, rather than the Monarch, formally appoint the Governor-General on advice of the Prime Minister (just as the Chief Justice now formally swears in the Governor-General).

However, as the Prime Minister stated in the Second Reading Speech, the Convention provided for in the Bill will be limited to whether Australia should become a republic, and if so, what republican model should be adopted.

Cost of conducting the election

The cost of conducting the election is estimated by the Australian Electoral Commission to be about $35.6 million (Explanatory Memorandum, p 2).

Main Provisions

Clause 7 (p 4) provides for the number of delegates to be elected from the States and Territories.The total number of elected delegates is 76.

New South Wales = 20

Victoria = 16

Queensland = 13

Western Australia = 9

South Australia = 8

Tasmania = 6

Australian Capital Territory = 2

Northern Territory = 2

Clause 11 (p 6) provides that voting is not compulsory.

Clause 23 (p 11) provides that in order to be elected as a delegate, the person must have nominated himself or herself, be at least 18, an Australian citizen, and eligible to vote for delegates in the election.

Clause 24 (p 11) excludes some persons from nomination, including Parliamentarians, and if appointments have already been made - appointed delegates.

Part 3, Division 2 (pp 14-16) provides for two or more candidates to nominate as a group. Clause 31 provides that the Australian Electoral (AEO) office must refuse certain names if the name contain more than six words; or in the opinion of the AEO it is obscene.

Part 3, Division 3 (pp 17-19) provides for candidates to submit statements (of up to 50 words) to be distributed to electors.Such statements must be in English, and contain nothing other than words and numbers.If the relevant AEO officer considers a statement obscene, the AEO must reject the statement (Clause 35).The Bill does not define the word 'obscene'.Further judicial review of this clause, and this Division, is purportedly excluded by Clause 38.Clause 38 provides that anything done in good faith under this Division cannot give rise to a liability for suit, action or proceeding against the AEO, its officers, or agents.

Part 3, Division 4 (pp 20-24) sets out the formal requirements for nominating as a delegate to the Convention.A nomination fee of $500 is required (Clause 39).

Part 4 (pp 25-34) provides for matters preparatory to voting, including the printing of lists of candidates and ballot papers.

Part 5 (pp 35-37) provides for the distribution of voting material and actual voting.The elector must sign (except in certain circumstances) and record his or her date of birth on the vote certificate, put the vote certificate in an envelope and post it to the appropriate Divisional Returning Officer (Clause 68).Clause 69 states how the elector is to mark the ballot-paper.The elector may simply write the number '1' or place a 'tick' or 'cross' in the box next to one and only one candidate (Part A).Alternatively, the elector may vote for each of the candidates preferentially (Part B).Votes must be received by the close of the poll (Clause 70).

Part 6 (pp 43-51) makes special provisions for electors serving in Antarctica.The Bill does not make special allowance for Australian defence personnel who may be serving overseas at the time of the election.

Part 7, Division 3 (pp 58-71) stipulates the votes needed in order to be elected.Clause 99 provides the following formula:

The number of first preference votes given for each candidate and the total number of all such votes must be ascertained and a quota determined by dividing the total number of first preference votes by 1 more than the number of candidates required to be elected and by increasing the quotient so obtained (disregarding any remainder) by 1, and any candidate who has received a number of first preference votes equal to or greater than the quota must be elected.

Part 7, Division 4 (pp 72-77) establishes rules for determining the formality of votes.

Part 10, Division 3 (pp 87-91) provides for offences relating to the publication of certain election material in certain circumstances.For example, Clause 123 makes it an offence (penalty: 6 months imprisonment) to print or publish material likely to mislead or deceive an elector during the election period.

Endnotes

  1. For an outline of the recent republic debate, see: C Hide, The Recent Republic Debate - A Chronology Background Paper 9/1995–96 Parliamentary Research Service, Canberra, and for a discussion of the arguments for an against republicanism and monarchism in Australia, see A Twomey, Monarchy or Republic? A Collection of arguments for and against Background Paper 26/1993 Parliamentary Research Service, Canberra.
  2. M McKenna, The Captive Republic: A History of Republicanism in Australia 1788–1996, Cambridge University Press, 1996: 1. See also, M McKenna, The Traditions of Australian Republicanism Research Paper 31/1995–96 Parliamentary Research Service, Canberra.
  3. Ibid.
  4. For a discussion see: A Twomey, The Constitution - 19th Century Colonial Office Document or a People's Constitution Background Paper, 15/1994, Parliamentary Research Service, Canberra.
  5. Parliamentary Handbook (26th Edition) Canberra 1993: 713–717.
  6. House of Representatives Standing Committee on Legal and Constitutional Affairs, Constitutional Change: Select sources on constitutional change in Australia 1901–1997 Canberra, February 1997: p 3. The four proposals put on 21 May 1977 were
    1. It is proposed to alter the Constitution to ensure that Senate elections are held a the same time as House of Representatives elections
    2. It is proposed to alter the Constitution to ensure as far as practicable that a casua vacancy in the Senate is filled by a person of the same political party as th Senator chosen by the people and for the balance of his term
    3. It is proposed to alter the Constitution so as to allow electors in the territories, a well as electors in the states, to vote at referendums on proposed laws to alter th Constitution
    4. It is proposed to alter the Constitution so as to provide for retiring ages for judge of federal courts

    Proposals (2), (3) and (4) were carried.

  7. See House of Representatives Standing Committee on Legal and Constitutional Affairs, Constitutional Change: Select sources on constitutional change in Australia 1901–1997 Canberra, February 1997: 59–61.
  8. C Hide, The Recent Republic Debate - A Chronology Background Paper 9/1995–96 Parliamentary Research Service, Canberra: 60–61.
  9. See for example: A Twomey, The Constitution - 19th Century Colonial Office Document or a People's Constitution Background Paper, 15/1994, Parliamentary Research Service, Canberra; and H Irving, 'A Gendered Constitution? Women, Federation and the Heads of Power' (1994) 24 Western Australian Law Review pp 186-198.
  10. Barton, Official Report of the National Australasian Convention Debates, Adelaide 22 March–5 May 1897: 561.
  11. The Hon Kim Beazley MP, 'Time to constructively advance the republic debate' Statement 4 December 1996: 1.
  12. Ray Braithwaite, 'Changing our Constitution', Australian National Review 1 March 1997 : 40.
  13. Ibid.
  14. Sir David Smith 'Let's talk about the Constitution' Australian National Review 1 Marc 1997: 12.

Contact Officer and Copyright Details

Dr Max Spry
11 April 1997
Bills Digest Service
Information and Research Services

This Digest does not have any official legal status. Other sources should be consulted to determine whether the Bill has been enacted and, if so, whether the subsequent Act reflects further amendments.

IRS staff are available to discuss the paper's contents with Senators and Members and their staff but not with members of the public.

ISSN 1323-9031
Commonwealth of Australia 1997

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 Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1997.

This page was prepared by the Parliamentary Library, Commonwealth of Australia
Last updated: 14 April 1997



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