‘Neither in haste nor by stealth’
This is a submission by Australians for Constitutional Monarchy to the Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum on the Constitution Alteration (Aboriginal and Torres Strait Islander Voice), 2023
1. INTRODUCTION: ACM
Australians for Constitutional Monarchy (“ACM”) is the only organisation in Australia with living experience of running a successful national referendum campaign in all states and in all electorates. This was the 1999 republic referendum.
This was despite predictions that a republic was inevitable, and early polling suggesting a victory for the YES case. Notwithstanding a very well-endowed YES campaign and overwhelming political and especially mainstream media support, the ACM NO Case, dependent on approximately 60,000 ground troops, prevailed nationally, in every state, and in 72% of federal electorates.
As Justice Michael Kirby wrote in the ACM Charter, we hold different political views, we come from different ethnic origins, we speak for different generations, and we have had different experiences in life. “But above all, we are all Australians, proud of our country and united in the defence of our constitution.”
2. THE VOICE REFERENDUM
Although we believe the substance of the Aboriginal and Torres Strait Islander Voice Referendum (“Voice referendum”) is not properly a matter for decision by ACM, we early expressed our concern in principle relating to changes proposed concerning the machinery for referendums, in particular, proposals to abandon the traditional and, we believe, still crucial YES/NO booklet and what we feared was a failure to ensure that the conduct of the referendum was on a level playing field.
While there has been some correction in the final amending legislation, we are still concerned that both sides be treated equally and fairly as they were in 1999. John Howard’s handling of the 1998 Constitutional Convention and of the 1999 referendum can only be described as ‘gold standard’ and to be emulated.
3. ACM AND THE INDIGENOUS
It should be stressed that in relation to the Voice referendum, ACM has always had a close affinity with and respect for the Aboriginal people and Torres Strait Islanders.
Founded in 1992 as a broad-based association to maintain the Australian Crown in our constitutional system, of the seven original prominent subscribers to our founding documents, two were indigenous.
Neville Thomas Bonner, who in 1971 as a Senator for Queensland became the first Indigenous Australian to sit in the Australian Parliament, a position he held until 1983, and Dr Margaret Valadian AO MBE, chair for the Aboriginal Arts Committee, Director of the Aboriginal Education Centre of the University of Wollongong and the founder and co-director of the Aboriginal Training and Cultural Institute (Sydney) joined the former Chief Justice of Australia, Sir Harry Gibbs, NSW Court of Appeal President later High Court Justice, Michael Kirby, Sydney University Chancellor and ABC Chairman, Dame Leonie Kramer, former Labor Sydney Lord Mayor, Douglas Sutherland and leading QC, Lloyd Waddy.
Neville Bonner later led ACM’s Queensland delegation to the 1998 Constitutional Convention in Old Parliament House, where his speech was the only one to attract a standing ovation from all sides.
4. CONSTITUTIONAL RECOGNITION
While ACM remains involved in defending the Crown and will take a leading position concerning the second republic referendum signalled with the appointment of an Assistant Minister for the Republic, it would be inappropriate for ACM to take a position on the substance of the Voice referendum.
This, we believe, to be beyond our remit.
However, in 2015, we were invited to take a position in relation to the constitutional recognition of the indigenous people.
This arose when the then Prime Minister, Hon Tony Abbott, formerly ACM Executive Director, was giving the Neville Bonner Oration at ACM’s 16th National Conference.
In the course of the Oration, Mr Abbott called on ACM, ‘as the nation’s fiercest defenders of the Constitution’ to support his proposal for the constitutional recognition of the indigenous people.
In moving the vote of thanks, ACM National Convenor, Emeritus Professor David Flint, suggested that instead of the Australian people being involved in a referendum concerning constitutional recognition only at the point of voting, this was of such significance that it would be appropriate for the Australian people to be involved from the beginning. This could be achieved, as at Federation, through a constitutional convention on the model used in the republic referendum.
Accordingly, in a submission to the Joint Select Committee on the Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples on 30 January 2015, ACM suggested that the several relevant constitutional amendments then proposed be submitted to a convention of unpaid delegates elected by the Australian people as in the 1998 Convention.
Recalling that the only way this nation was able to federate was by the calling of a convention under the Corowa Plan, ACM made the following point which we believe to be as true today in relation to the Voice referendum, as then :
‘ACM suggests that the only way that a referendum proposal for the constitutional recognition of indigenous people could be properly considered is by involving the people from the beginning, just as we did to federate.
The alternative is for a group of experts and eminent people, as well as politicians, to develop and present a proposal to the people for their decision.
In this scenario, the people would be consulted at the very end, and not be involved from the beginning.
We believe that such a change of the Constitution should be considered from the beginning by the people through a representative constitutional convention.
It should be the convention which prepares the referendum.’
While no convention of the Australian people was called after our 2015 submission, a series of indigenous conventions was called culminating in the Uluru convention. On that, we have no difficulty with the indigenous people calling their own conventions.
But we do believe that given the divisions over the Voice referendum, the fact that referendums lacking bipartisan support have so far always been rejected and that there seems to be an increasing view that more information and discussion are needed, including opinions from the Law Officers, ACM suggests that rather than proceeding to a national vote, we should go to the tried and tested system of holding a convention, which was, it is worth repeating, the way in which we Australians were able to achieve Federation.
In particular, we believe that in providing for the safeguards of a referendum of the people who express their will on changes to the Constitution, there was an intention that the national conversation on any proposed change was intended to be far more thorough and extensive than is envisaged in relation to the Voice referendum.
As founders Sir John Quick and Sir Robert Garren wrote in their magisterial work, The Annotated Constitution of the Australian Commonwealth, 1901, at page 988:-
‘These safeguards have been provided, not in order to prevent or indefinitely resist change, but in order to prevent change being made in haste or by stealth, to encourage public discussion and to delay change until there is strong evidence that it is desirable, irresistible, and inevitable.’
We believe that principle is worth repeating. The safeguards were provided in order to prevent change being made in haste or by stealth, to encourage public discussion and to delay change until there is strong evidence that it is desirable, irresistible, and inevitable.
We suggest this would be provided through a convention elected by the people of each state and territory electing a number of delegates in the same proportion as their representation in the Federal Parliament.
We propose that the leadership, government, and opposition of each state and territory, also be entitled to send three representatives and the Commonwealth seven, all voting separately from the elected delegates.
The convention would be entitled to consult those who worked on the Voice proposal.
We propose that the convention be elected for three years, having as its first function the production within six months of a draft constitutional amendment in relation to the indigenous people to be released for comment by parliaments and the people.
Following this, the convention would produce a final version within three months on the understanding that the government would introduce a Bill for a referendum on that final recommendation.
6. RESTORATION OF THE CONSTITUTIONAL SYSTEM AFTER COVID
We suggest that after the convention has concluded this work, it follows a similar process concerning the restoration of the constitutional system during any future crisis similar to COVID, a matter on which ACM has already made a submission to the federal government. [Call to the Nation: Retaining and Enhancing Constitutional Government, presented to Assistant Minister for the Republic, the Hon Matt Thistlethwaite, by an ACM delegation on 9 August 2022 ]
7. FIRST CONSTITUTIONAL REVIEW IN OVER A CENTURY
We suggest that following this, the convention undertake a third phase through a similar process with one year to produce a draft and another six months a final version. This would be a full review of the Constitution, something which has never been attempted by an elected convention in well over a century.
It would be understood in advance that, after a similar process of consultation and a final version that, as with the Corowa Plan which secured federation, the political parties agree to submit that final version unchanged to the people in the form of a series of referendums as recommended by the convention.
Australians for Constitutional Monarchy