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ACM Home arrow Anthems arrow Constitutional Essays arrow The Effects Of A 'Yes' Vote On The States

The Effects Of A 'Yes' Vote On The States Print E-mail
Written by Edward O'Farrell   
Monday, 21 August 1995
In considering this question it is of great importance to understand the type of republic we are going to vote on at the November referendum, because of the long-term effect the model will have, not just on the States, but on the Australian Federation as a whole. If we vote ‘Yes’, we are stuck with it. There can be no going back and the way ahead may not be as secure as what has gone before.


Many commentators, some of them of a republican persuasion, believe the model is flawed. The basic reason is that while the model was dubiously and reluctantly agreed to at the Constitutional Convention last year, the Convention confined itself almost exclusively to the Commonwealth Constitution and neglected to address the other constitutional documents which are part of the totality of the Federation which comprises the Australian nation. Included in these documents would be the Constitutions of each State, the Statute of Westminster, 1931, and the Australia Act, 1986.

The model discards the Crown as a common unifying entity in the Federation without replacing it with The People, in inverted commas, to fill the vacuum. This is the cause of the division between those who want a republic at any price and those who want The People, not the Commonwealth Parliament, to replace the Crown. The Hon. Richard McGarvie understood the problem, but his argument fell on the deaf ears of a Convention hellbent on achieving a republic at any price.


Recently, Acts have been passed, unpublicised and almost clandestinely, by all the State Parliaments, requesting the Commonwealth to repeal Section 7 of the Australia Act, 1986 in the event of a ‘Yes’ vote at the referendum. This will abolish the powers and functions of Her Majesty in each State. At the same time, the Commonwealth Act, to which we are going to say ‘Yes’ or ‘No’ in November, specifically confirms Section 106 of the Commonwealth Constitution, which gives the States carte blanche so far as their individual Constitutions are concerned.

Some States can alter their constitutions by simple legislation – Tasmania is one. Others require a two-thirds majority of both Houses of Parliament. Queensland and Western Australia each require a referendum. In both those States the Queen is entrenched in the constitution. So if, for instance, Queensland voted ‘No’ at the November referendum and retained that opinion at a subsequent State referendum, it would remain a monarchy, despite other constitutional bodies opting for a republic.

Furthermore, some States that became republics might retain the Governor as a constitutional Head of State, while others might combine the office with that of Premier, as is the case in the United States. Already Mr Carr has partially done this in New South Wales. Incidentally, another curiosity would arise from the Act which provides for the election of a President. This specifies that in the absence from Australia of the President, the senior State Governor would act in his place. What if the senior State Governor also represented the Queen, or worse, was the State Premier.


But this is not the only problem to upset the equilibrium of the Federation. Abolishing the Crown in the Commonwealth does not mean the putative President would replace the Queen. The Act which would come into force as a result of a ‘Yes’ at the referendum will replace the Governor-General with a President in the Commonwealth alone. I have already pointed out that the referendum will not necessarily result in the abolition of the Crown in all the States, but the writ of a putative President will not run in any State, as does the Queen’s. So there will be seven heads of state – if such a thing exists in Australia.


So, while the removal of the Crown without a replacement (if a ‘Yes’ vote is carried) will result in a loosening of the ties which bind the Federation together, there are other dangers we must face. The most notable is the accretion of power to the Prime Minister as a result of the procedures for the dismissal of a putative President, and the diminution of the power of the Senate in such procedures. You will all be familiar with them, especially the exclusion of the Senate from the dismissal process. If its inclusion in the election process is symbolic of its being the States’ House, then its exclusion from the dismissal process is a slap in the face to the States. What is more, the proposal is naïve in its smug assumption that the House of Representatives would be qualified to censure the Prime Minister, if his or her dismissal of a President was wrong or unjust. He or she would not be Prime Minister if he or she could not impose his or her will on the House.


The Senate, of course, like the States, is not an institution which is viewed with much enthusiasm by the Commonwealth executive government or the Canberra bureaucracy, because all stand in the way of the exercise of untrammelled power. As such, they should be a comfort to those of us who value our liberties and are afraid of the corruption of absolute power.


We come now to the powers of the State executive governments. There are difficulties in this regard, since we have no idea how the Courts might interpret the delection of Section 7 from the Australia Act, which removes the powers and function of Her Majesty. The present Tasmanian Governor has described the gentle restraints he is able to exercise but will he or his successors be able to continue that exercise once the Crown is removed from the equation? About a month ago, Mr Bob Ellicott, a former Commonwealth Solicitor and Attorney-General, expressed some doubt that the High Court would accept the proposition that a President would inherit the reserve powers of the Crown. So, is the State Executive Council inviolate? Need the decisions of Cabinet be subject to formal scrutiny? Indeed, many of them which are policy rulings already are not. If the Legislative Council refused to pass the budget, would the Governor be obliged to break the law and assent to the finance bills, because, with the removal of the powers and functions of the Crown, he or she had lost the ability to refuse advice? These and many other questions could be asked, as they will be over the years, and will be heard in the Courts, producing equivocal and conceivably contradictory judgements.


So, in a way, we are rather like Apollo II heading off to the moon in 1969, withoutht the support of Houston. The model we are obliged to vote for, whether we like it or not, was cobbled together by a dubious majority at the Constitutional Convention last year. It has none of the political profundity of the long negotiations which, over a decade, resulted in the present Constitution and addressed complex problems of protectionism and free trade and the need for defence. The contracting parties to the original document have not negotated with one another, so we, the electorate, have to decide the fate of the nation with one word – ‘Yes’ or ‘No’ on a hotch-potch of superficial arrangements. You may think the future can take care of itself, but all Australians of all ages have a responsibility to the future, as did all Australians of all ages in the decade before the turn of last century. Our forbears can lie easy in their graves because, despite the distortions that have occurred and they had not forseen, the agreed, after long and careful deliberation, to a structure that has endured and has preserved our liberties. Make sure we do the same, or we may be uncomfortable in our final resting places and unforgiven by succeeding generations.


The subject I was asked to write about was the effect of a ‘Yes’ vote on the States. In short, I would say that it will certainly result in confusion, probably result in endless litigation and, in the long term, possibly result in disaster.

 
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