Bills Digest 131 1996-97
Constitutional Convention (Election) Bill 1997
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
Constitutional Convention (Election) Bill 1997
Date Introduced: 26 March 1997
House: House of Representatives
Portfolio: Administrative Services
Commencement: Royal Assent
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.
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).
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.
- 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.
- 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.
- Ibid.
- 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.
- Parliamentary Handbook (26th Edition) Canberra 1993: 713–717.
- 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
- It is proposed to alter the Constitution to ensure that Senate
elections are held a the same time as House of Representatives elections
- 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
- 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
- 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.
- 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.
- C Hide, The Recent Republic Debate - A Chronology Background Paper
9/1995–96 Parliamentary Research Service, Canberra: 60–61.
- 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.
- Barton, Official Report of the National Australasian Convention Debates,
Adelaide 22 March–5 May 1897: 561.
- The Hon Kim Beazley MP, 'Time to constructively advance the republic
debate' Statement 4 December 1996: 1.
- Ray Braithwaite, 'Changing our Constitution', Australian National
Review 1 March 1997 : 40.
- Ibid.
- Sir David Smith 'Let's talk about the Constitution' Australian National
Review 1 Marc 1997: 12.
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
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Published by the Department of the Parliamentary Library, 1997.
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Last updated: 14 April 1997
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