DOCUMENT RESUME

ED 473 177 CE 084 396

AUTHOR Gow, Neil

TITLE The Governance of Australia. Civics and Citizenship LearningCircle Kit.

INSTITUTION Adult Learning Australia, Inc., Jamison.SPONS AGENCY Australian Dept. of Employment, Education, Training and Youth

Affairs, Canberra.REPORT NO No-1

ISBN ISBN-0-949145-19-XPUB DATE 2001-00-00

NOTE 157p.; This version printed from the CD-ROM and consists ofthe session notes only. For Kit 2, see CE 084 397. Fundedunder the Discovering Democracy programme.

AVAILABLE FROM Adult Learning Australia, PO Box 308, Jamison Centre, ACT2614 (Kit: $27 Australian; CD-ROM: $10 Australian). E-mail:info@ala.asn.au; Web site: http://www.ala.asn.au.

PUB TYPE Guides Classroom Teacher (052)

EDRS PRICE EDRS Price MF01/PC07 Plus Postage.DESCRIPTORS Adult Education; Citizenship; *Citizenship Education;

*Civics; Court Role; *Democracy; Developed Nations; *FederalGovernment; Foreign Countries; Governance; Government Role;*Governmental Structure; Instructional Materials; LearningActivities; Legislation

IDENTIFIERS *Australia; Constitutions; Executive Branch; *LearningCircles

ABSTRACT

This kit, the first of four learning circles on civics andcitizenship, addresses a series of broad issues about the way in whichAustralia is governed. Introductory materials include a synopsis of the sixsessions; lists of 51 references, 29 Internet sites, and 13 videos and CDs;glossary; and list of 19 resource materials. Session guides are provided forsix sessions: Our Group--Our Government; The Australian Constitution: Basisfor Stability or Constraint toChange; Parliament--The Legislative Branch ofGovernment; The Executive Government: Representative Leaders or ElectedDictators?; The High Court of Australia; and An Australian Republic?Components of each session guide include some or all of the following: anintroduction that outlines the objective and aims; lists of suggestedactivities in the session; background documents provided; list of resources;suggested activities with discussion; optional extra activities; case studieshighlighted in block format; and the background documents. (YLB)

Reproductions supplied by EDRS are the best that can be madefrom the original document.

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ALA

DISCOVERINGDEMOCRACY

U.S. DEPARTMENT OF EDUCATIONOffice of Educational Research and Improvement

EDUCATIONAL RESOURCES INFORMATIONCENTER (ERIC)

This document has been reproduced asreceived from the person or organizationoriginating it.

Minor changes have been made toimprove reproduction quality.

Points of view or opinions stated in thisdocument do not necessarily representofficial OERI position or policy.

PERMISSION TO REPRODUCE ANDDISSEMINATE THIS MATERIAL HAS

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TO THE EDUCATIONAL RESOURCESINFORMATION CENTER (ERIC)

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Civics and Citizenship Learning Circle Kitdeveloped byAdult Learning Australia Inc.2001

IINTS COVERING-)

BEST COPY AVAILAIBILIE

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The Governance of Australia Kit 1

Contents of Introductory FolderAcknowledgments

The Discovering DemocracyProgramme

Preface

Session guidea synopsis

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3

6

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This project was funded under the DiscoveringDemocracy programme administered by theCommonwealth Department of Education,Training and Youth Affairs.

Published by:Adult Learning Australia Inc(formerly AAACE Inc)PO Box 308Jamison Centre ACT 2614Tel: 02-62517933Fax: 02-62517935Email: info@ala.asn.auURL: http://www.ala.asn.au

© Commonwealth of Australia, 2001

The Governance of Australia is Commonwealthcopyright. It may be reproduced in whole or in partfor study or training purposes, subject to theinclusion of an acknowledgment of the source andit not being used for commercial sale or use.Reproduction for purposes other than thoseindicated requires the written permission ofthe Commonwealth Department of Education,Training and Youth Affairs, GPO Box 9880,Canberra City, ACT, 2601.

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Contents of this Kit 10

Resources Beyond the kit 11

References 11

Internet sites 13

Videos and CDs 14

Glossary of terms 15

Evaluation form 23

Resource materials 24

The views expressed here are those of the authorand do not necessarily represent the views of theCommonwealth Department of Education,Training and Youth Affairs.

SCIS Cataloguing-in-publication data:

The Governance of Australia

1. GovernanceStudy and Teaching2. DemocracyStudy and Teaching3. AustraliaPolitics and Government4. Learning Circles

ISBN 0-949145-19-X

Written by Neil Gow

Designed by Looking Glass Press

Discovering Democracy logo design byMiller Street Studio

Printed in Australia by Robey Pty Ltd

LThe Gwernance-of:Australia - Kiti_Intro-ch-mtion_3

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AcknowledgmentsWe gratefully acknowledge the assistance given bymembers of the project advisory committee, bythose organisations which have provided resourcematerials for the kit, and by all those who havereceived and commented on earlier drafts of thekit. The National Library of Australia provided

research facilities.

We would also like to thank John Warhurst foreditorial assistance on Sessions 5 and 6.

Advisory Committee MembersMr Paul Anderson

Director, Electoral EducationAustralian Electoral Commission

Mr John CarterDirector, Parliamentary Education Office

(to January 1998)

Dr Alastair CrombieExecutive Director, Australian Association of

Adult and Community Education

Ms Ellen Davis-MeehanNSW Council of Adult and CommunityEducation Organisations

Mrs Betty DawsonNetwork of Women in Further Education

Ms Penny GouldQuality Schooling Branch,Department of Education, Training andYouth Affairs

Mr Brenton HolmesDirector, Parliamentary Education Office

(from January 1998)

Ms Wendy MichaelsSenior Policy Officer, Australian LocalGovernment Association

Dr Roger MorrisPresident, Australian Association ofAdult and Community Education

Ms Rosemary NealNational Link of Neighbourhood Houses andLearning Centres

Ms Marian SchoenExecutive Director,Constitutional Centenary Foundation

Ms Sam ThomasDirector,

NSW Board of Adult and Community Education

Organisations supplyingresource materialsAustralian Electoral Commission

Constitutional Centenary Foundation

Department of Prime Minister and Cabinet

The High Court of Australia

Parliamentary Education Office

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The Discovering DemocracyProgramme

Exerpt from a Ministerial Statement by the

Hon Dr David Kemp MP, then Minister for Schools,

Vocational Education and Training, 8 May 1997.

As Australia approaches the centenary of

Federation, and the Constitutional 0;nvention to

be held later this year, the Government is pleased

to announce a national programme of Civics and

Citizenship Education activitiesDiscovering Democracy.

The Government is committed to ensuring that all

students have opportunities to learn about the

system of government in Australia.

Over the next four years, the Government has

allocated $17.5 million to raise the levels of civic

knowledge of students through the Civics and

Citizenship Education programme, which will

involve the four sectors of educationschools,

higher education, vocational education and

training, and adult and community education.

The four themes of the programme, which wasextended to 2004 with an additional $13.4mfunding in the 2000-2001 Budget, are:

Who Rules?

Law and Rights

The Australian Nation; and

Citizens and Public Life.

Australia's democratictraditionWe are the heirs of one of the most remarkabledemocratic initiatives of the nineteenth century.Just after 1850, hundreds of thousands of peoplebegan to pour into this country in the great gold

rushes. Among them were many who werefrustrated at the slow development of democracyin Britain and who were determined to establish anew fully democratic society in their new land.They joined with and gave momentum to thosealready pushing towards representativeinstitutions of government.

Australia provided these people with uniqueopportunities to translate their reforming spiritand egalitarian principles into the democraticframework we enjoy today. Realising thatdemocracy required educated citizens and a moraland ethical society they not only looked for gold,but also built schools, churches and universities.

An impressive record in democratic and socialprogress began: Australia was one of the firstcountries in the world to abolish the propertyrequirement for voting for the popular assembly, togive first all men and later all women the vote, topay salaries to members of Parliament (so thatthose without independent incomes could seekoffice), to provide public education and old age

The Govern-n-c-e of Australia_L_-Kiri Introduction_5

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pensions, to introduce the eight-hour day, and toestablish the secret ballotknown throughout theworld as the Australian ballotso that everyonecould cast their vote free from intimidation. By thesecond half of last century, Australia had some ofthe most radically democratic political institutionsin the world.

Effective democracy is not astatic, inflexible concept, but adynamic, active principle that

needs to be continuouslycultivated, adapted and

revitalised.

In this century 100,000 Australians sacrificed theirlives to defend their democratic way of life againstmilitarism and totalitarianismand to help othernations defend their democracy.

The new democracy came at a cost that today isbeing fully revealedthe dispossession of theindigenous people. It has been the democratic ideathat has forced the recognition that thisdispossession has consequences for all Australians.It has been the evolution of the belief that allpeople have equal rights, are entitled to equalitybefore the law, and have equal responsibilities thatdominates our response to the legacy of thisdispossession today.

We have, after long debate, accepted that if peopleare equal, regardless of their background or beliefs,Australia as a democracy cannot have anythingother than a non-discriminatory immigrationpolicy. If everyone has equal rights, we cannothave one set of laws for men and another forwomen. In a democratic Australia there is no placefor discrimination against the original inhabitantsof this countrythe Aboriginal people. If everyoneis equal before the law, then the laws which governour economic life and our social life must apply toeveryone equally and not create special privileges

for some at the expense of others. As befits theheirs of those radical democrats who set up ourfirst democratic institutions, much of our politicaldebate and the policies of government can beunderstood as a working through of theimplications of our commitment to democracy.

The development of Australian democracy is atribute to our civil nature and cooperation.Australian civil society has been built around thefamily, voluntary associations (civic, political andreligious) and small enterprises. Our historycontains little evidence of revolution, public riotsand violence. One of the great migrationprogrammes of the last century had beenaccomplished peacefully and in a manner whichhas demonstrated what is possible in a democraticethos. Our formal education system is a vitalmeans of maintaining the civil society and also indeveloping and enhancing our democratic systemas we move into the next millennium. Effectivedemocracy is not a static, inflexible concept, but adynamic, active principle that needs to becontinuously cultivated, adapted and revitalised.

Over its history Australian citizenship and nationalidentity has evolved from one developed withinthe context of the British Empire to one focused onan independent Australian nation. Its democratictradition has allowed Australia to demonstrate theability of peoples from different origins andcultures to live peacefully together. Today thisidentity continues to evolve.

Civics and CitizenshipEducationDiscovering DemocracyThe invigoration of Australian citizenship requiresan appropriate combination of civics education andcitizenship education. Civics education involves the

knowledge that is a necessary precondition forinformed and responsible citizenship. Citizenshipeducation supports the skills and capacities thatenable citizens to take part voluntarily and

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responsibly in the life of civic society and in the

governance of their political communities.

Civics and citizenship education is more than justteaching about our political frameworks. Likedemocracy, citizenship is an ongoing participativeprocess, not a static one. It does require anunderstanding of our history and institutionswhich then allows for the ability to comprehendand reflect. Without these skills and involvement,citizens cannot effectively deal with proposedchanges or make the informed choices needed for ahealthy democratic life.

The programme is guided by the Civics Education

Group who have the role of advising on civics and

citizenship education and supervising andmonitoring funded activities, including the approvalof all material, and report to the Minister for

Education, Training and Youth Affairs.

Three more kits dealing with citizenship education

issues will be produced.

Members of the CivicsEducation GroupDr John HirstChair (Reader in History at La Trobe University)

Professor Stuart Macintyre(Ernest Scott Professor of History atthe University of Melbourne)

Dr Ken Boston(Director-General of the New South WalesDepartment of School Education)

Ms Susan Pascoe(Coordinating Chairperson, Policy,Catholic Education Office, Melbourne)

Professor Greg Craven(Foundation Dean and Professor of Law atNotre Dame University)

(Dr Kevin Donnelly is the consultant to the

programme.)

The Adult and CommunityEducation (ACE) SectorLearning Circle DiscoveringDemocracy ProgrammeMaterial for four learning circle kits will beproduced for the ACE sector. The Adult LearningAustralia Inc (formerly AAACE Inc) has beencontracted to produce the first two kitsTheGovernance of Australia and The Three Spheres ofGovernment. Further details can be obtained onALA's web site at http: / /www.ala.asn.au. Twomore kits dealing with citizenship issues will beproduced.

Each kit includes a general booklet on LearningCircles, session guides for six meetings and a range

of resources which can readily be used to informthose discussions. In addition, there are lists oforganisations, web sites and additional printedresources material which groups may wish to access.

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PrefaceThis, the first of four learning circles on civics andcitizenship, addresses a series of broad issuesabout the way in which Australia is governedthemajor structures and processes of nationalgovernment and the desirability of changing ormaintaining them.

Where did our system of national governmentcome from, and in what ways have overseasmodels and practices been adapted to Australianconditions? Do we have a system of governmentthat is capable of meeting the new demands andchallenges of the next millennium? Is it now timefor Australians to give emphasis to theirindependence by severing traditional ties with theBritish monarchy? Are there practical ways inwhich the governance of Australia can be mademore democratic than it is at present?

The BicentennialIn 1988 Australians celebrated the bicentenary ofwhite settlement and the roots and achievementsof the multicultural Australian nation. This was anopportunity to assess the achievements of the firsttwo hundred years of white settlement of the 'greatsouth land' and to take stock of future prospects. Itwas also an opportunity for white Australians tostart to come to grips with the prior occupation ofthe Australian mainland and surrounding islandsby Aboriginal and Torres Strait Islander people,and their claims, ranging from recognition of prioroccupation to compensation, treaties and evencontinuing sovereignty and ownership over partsof, or all of the land. So 1988 was part celebration

and part recognition that some individuals andgroups had not shared equally in Australia'sdevelopment and democracy.

The Australian Constitutionand the Centenary ofFederation-20012001 marks the Centenary of Federationwhenthe Commonwealth of Australia was created froma group of British colonies by an Act of the BritishParliament after a campaign which producedbroad agreement for federation and the AustralianConstitution. Now, a hundred years after ourpresent federal form of government was agreedupon and brought into operation, we can ask ifthis system has served us well, and will it sufficefor the next hundred yearsor should we makesome changes?

The fact that this centenary coincides with thedawn of a new millennium and follows the worldwide focus on Australia as host nation to the 2000Olympics, highlights the opportunity, and theincentive to reflect on the nation we are and theway we govern ourselves.

European heritageAsian destiny?The idea of Australia as a country of Europeanheritage with an Asian destiny provides anotherkey context for reflecting on the way we governourselves. As ties of commerce, security, cultureand migration have deepened our relationshipswith Asian and Pacific countries, we may find weneed to understand better how these countriesSingapore, China, Malaysia, Japan, Indonesia, thePhilippines, and othersgovern themselves. Newsystems of government like that recently institutedin South Africa also provide valuable comparisons.

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They do not necessarily, like the countries ofEurope and North America, share our ideas ofdemocracy with its roots in classical Greece andwestern European medieval institutions like themonarchy or parliaments. These societies havedifferent histories, and have made differentchoices. Can we expect to understand them untilwe are confident about how we govern ourselves,and to what ends?

Australia and the monarchyThe issue of an Australian monarchy or republic islinked to the question of how we are seen by ourAsian neighbours, as well as the logic of ourcontinuing link with the House of Windsortheheirs and successors of Queen Victoria who signedthe Commonwealth of Australia Constitution Actinto law in 1900. It can also be approached from thepoint of view of the problems and advantagescreated by our historical connection with GreatBritain and membership of her empire andcommonwealth. Some believe that Australia needs

to become a republic in order to truly acquire adistinctive national identity, whilst others believethat Australia already has a unique nationalidentity and that moving to a republic will havelittle or no impact upon this. For some of those whosupport a greater sense of continuity, the link to themonarchy has created a sense of security and

stability.

GlobalisationIn addition, certain aspects of globalisation raise,or.re-emphasise important questions about thenation-state and national sovereignty. How'independent' can a nation the size of Australia be?This is most obvious in the economic arena, but

there is also a need for effective transnationalpolicy and decision making in relation to suchmatters as peace and human rights, environmentalquestions, crime and information technologies.A more crowded world with cheaper internationalcommunications and more global challenges to

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meet, raises vital questions about the ability ofgovernments to understand one another, and worktogether. Australia's role in the United Nations andadherence to its treaties and the consequent use ofthe Commonwealth's external powers, andAustralia's role in regional trade and securitygroupings, are examples of this.

Indigenous Australiansand reconciliationThe debate about Aboriginal reconciliation andNative Title brings its own special questions. Howdid the Aboriginal nations of Australia traditionallygovern themselves, and are there lessons to be

learned from this for a modern Australia? Now thatthe doctrine of terra nulliusthe proposition that theAustralian landmass was not occupied by cohesivecommunities before British settlementhas beenoverthrown by the High Court, then what is thebasis of the sovereignty of our modern governmentsystem? Is sovereignty based on land, or people, or

a mixture of both?

Apathy and disaffectionWhile Australians are generally proud of their freeand progressive country, there is also todaywidespread political apathy, distrust of politics and

politicians, and a lack of knowledge andunderstanding of our political system and how itworks. The Civics Expert Group's report Whereas the

people...(1994) stated that there are low levels of

political participation and politics is widelyperceived as something remote and inaccessible.

This learning circle invites participants to reflect on

the Australian system of government, and whethercitizens can and should seek to improve it. What is

working well? What is not? What do other countriesdo better? It covers the basic elements of the presentsystem of government and asks questions about

what should be maintained or changedand why.Should Australian citizens become engaged in the

process of building a more democratic Australia?

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The session guides a synopsisThe six sets of session notes that follow areintended to stimulate and give some direction todiscussion, and perhaps further investigation ofour present system of government. This subject isobviously vast in scope. These materials are astarting point. They look at the issues from yourpoint of viewthat of an interested citizen, andfocus on how our system of government works foryou and society as a whole, and whether there aresome aspects that you would like to see changed.Every issue raised here can be pursued further bythose who are interested. The kit points to pathsfor further inquiry.

The six sets of session notesare structured as follows:

Our GroupOurGovernmentThis session puts forward some ideasfor how the learning circle might bestget startedincluding some

suggestions for making sure that the circle operatesdemocratically! It then introduces the idea ofdemocracy, the evolution of democratic systems ofgovernment and of different types of democracies.It asks participants to reflect on what democracymeans at the personal level.

Each of the subsequent sessions looks more closelyat a particular aspect or element of our system ofgovernment (eg the High Court), highlighting anumber of issues for consideration and debate.This includes looking at the role and future of theConstitution, and at the fundamental principle ofthe 'separation of powers' between the legislature(Parliament), the executive (Prime Minister,Cabinet and the Public Service), and the judiciary(the legal system).

The Constitution: Basisfor Stability orConstraint to Change?With the approach of the Centenary ofFederation, and as a result of the Local

Constitutional Conventions programme and the1998 Constitutional Convention, there is growingattention to the issue of constitutional reform. Thissession encourages you to explore the AustralianConstitutionthe historical context in which itwas produced, the examples from which it drew,and its place in governance today. Does ourConstitution need re-writing, and if so is this amatter of minor editing, or wholesale change?Should it be made easier for citizens to change theConstitution in the future? Should the status-quobe maintained?

S@Ss icon

3Parliamentthe Legislative Branchof GovernmentThis session turns to the role of theHouses of Parliamentthe Legislature.

The workings of Parliament are perhaps the mostvisible, dramatic, and entertaining component ofour system of government. For many people,Parliament is governmentpoliticians at work.What is the formal role of Parliament in our systemof government, and how are its powers limited?How does the electoral system work? Whatchanges could be made to enable Parliament towork more effectively and be more representative?

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GSS 1011 The ExecutiveGovernmentRepresentative Leadersor Elected Dictators?

This session highlights the role of the Executivebranch of governmentthe Head of State, PrimeMinister and Cabinet, and the offices and agenciesthat support and carry out their executivedecisions. Has Parliament become just a 'rubberstamp' for the dominant political party and theExecutive, which acts as 'an elected dictatorship'?Most agree that the Executive must always be keptaccountable to Parliament. How is this bestachieved? Should we change our system ofgovernment to make sure that the Executive ismore accountable to Parliament or shouldgovernments be able to pass their legislationwithout delay?

Session

5The High Court ofAustraliaThis session looks at the importantplace of the legal systemtheJudiciaryin the governance of

Australia. The 'rule of law' that underpins ourdemocratic rights and freedoms tends to be takenfor granted and also balances the rule of themajority represented by Parliament. What tensionsdoes this produce and can they be lessened?

In the context of Australia's governance, the role ofthe High Court of Australia is especially important.It has also been under close scrutiny. Why shouldcitizens care about the role of the High Court?Should we, and can we, ensure that the High Courtis 'above politics'? Should procedures forappointing High Court justices be reviewed?

Session An AustralianRepublic?The final session focuses on the keyissue of the Head of State in theAustralian system of government. For

almost a century Australia has been a stable,democratic, constitutional monarchy, with theBritish sovereign as our Head of State. Thealternative of a republican form of government hasbeen advocated during the same period. Why isthe case for a republic of Australia being pressednow, what are its details and what are the mainarguments for and against?

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Contents of this kitABC to Learning Circlesgeneral booklet onLearning Circles

Six session guidesSession 1: Our groupour government

Session 2: The Australian Constitution:Basis for stability or constraint to change

Session 3: ParliamentThe legislativebranch of government

Session 4: The executive government:Representative leaders or elected dictators?

Session 5: The High Court of Australia

Session 6: An Australian republic?

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Resources beyond this kitA learning circle kit is not a text. It focuses onfinding good questions for groups to ask, ratherthan laying out all the answers. It seeks to beauthoritative in relation to matters of information,stimulating, but brief and simple to read. It pointsto other resources in the community that the groupmight turn to.

In addition to radio, TV, and the print media, thiskit might be extended by inviting guest speakers,visits to particular organisations, or sites, use oflocal libraries, and of course, surfing the internet.To assist the search for additional material, weinclude here a bibliography (which you can buildon to), a list of relevant World Wide Web sites, anda list of videos and CD ROMs.

Discovering Democracya Guide to Government and

Law in Australia by Dr John Hirst is available from

the Curriculum Corporation, 141 RathdowneStreet, Carlton, Vic, 3053. This book has been

prepared as part of the Discovering DemocracyProgramme and provides helpful backgroundinformation to the issues raised in this kit.

ReferencesAustralian Electoral Commission (1994),The People's Say, AGPS, Canberra

Parliament the Constitution and the High Court

(1987), Parliament of the Commonwealth,

Canberra

Parliament and the Executive Government (1987),

Departments of the Senate and the House ofRepresentatives, AGPS, Canberra (Part of seven part

series, with chart on how Parliament makes laws)

Questions and Answers on the Commonwealth

Parliament (1997), AGPS, Canberra

Representing the People: The Role of Parliament in

Australian Democracy (1994), CCF, Melbourne

The Position of Indigenous People in National

ConstitutionsConference Report (1993), Council for

Aboriginal Reconciliation, ConstitutionalCentenary Foundation, AGPS, Canberra

Voices for Democracy (1998), National Archives of

Australia (Note: This kit has been distributed to allsecondary schools in Australia)

Aitken, Gary (1997) Understanding the Constitution,Parliamentary Education Office, Canberra

Booker, Kevin; Glass, Arthur and Watt, Robert.(1994) Federal Constitutional Law: An Introduction,

Butterworths, Sydney

Brennan, Frank (1996) Securing a Bountiful Place for

Aborigines and Torres Strait Islanders in a Modern,

Free and Tolerant Australia, CCF, Melbourne

Carter, John (1995) Parliamentary Government in

Australia. A student's guide to the Commonwealth

Parliament, Parliamentary Education Office,

Canberra

Clarke, John (1997) Still the Two. Just taking it one

interview at a time, Text Publishing, Melbourne

Coper, Michael (1988) Encounters with the Australian

Constitution, CHH Australia Limited, North Ryde

Coper, Michael & Williams, George (eds) (1997)

The Cauldron of Constitutional Change, Centre for

International and Public Law, ANIL Canberra

The Governer ce af-Au-stralta_-_Kit 1 Intractution3

Craven, Greg (1986) The Convention Debates

1891-1898: Commentaries, Indices and Guide, Legal

Books Pty Ltd, Sydney

Cunneen, Chris (1983) King's Men: Australian

Governors-General from Hopetoun to Isaacs,

George Allen and Unwin, Sydney

Dermody, Kathleen (1997) A Nation at Last. The

Story of Federation, AGPS, Canberra

Emy, Hugh V (1978) The Politics of Australian

Democracy, Macmillan, South Melbourne

Evans, K R (1990) The Australian Political System:

An Introduction, Jacaranda Press, Milton

[This book includes the Australian Constitution as

an appendix]

Hanks, Peter (1991) Constitutional Law in Australia,

Butterworths, Sydney

Healey, Kaye (ed.)(1994) Governing Australia. Issues

for the Nineties. Volume 25, The Spinney Press,

Balmain

Hirst, John (1994) A Republican Manifesto, Oxford

University Press, Melbourne

Home, Donald (1997) The Avenue of the Fair Go.

A Group Tour of Australian Political Thought, Harper

Collins, Sydney

Irving, Helen D (1997) To Constitute a Nation,

Cambridge University Press, Melbourne

Irving, Helen (ed.) (1996) A Woman's Constitution?

Hale and Ironmonger, Sydney

Jaensch, Dean (1992) The Politics of Australia,

Macmillan Australia, Melbourne

Jaensch, Dean (1997) The Australian Politics Guide,

Macmillan, South Melbourne

La Nauze, J A The Making of the Australian

Constitution, Melbourne University Press,

Melbourne

Lovell, David et al (eds.) (1998) The Australian

Political System, Longmans, Melbourne

Lumb, R. D. (1991) The Constitutions of the

Australian States, University of Queensland Press

St Lucia

Macintyre, S. (1986) The Oxford History of Australia.

Volume 4, Oxford University Press, Melbourne

McMinn, W G. (1979) A Constitutional History of

Australia, Oxford University Press, Melbourne

Millar, Ann (1994) Trust the Women. Women in the

Federal Parliament, Department of the Senate,

Canberra

Pateman, Carole (1970) Participation and Democratic

Theory, Cambridge University Press, London

Quick, John and Garran, Robert Randolph (1995)The Annotated Constitution of the Australian

Commonwealth, first published 1901, Legal Books,

Sydney

Rayner, Moira (1996) Rooting Democracy,

Allen and Unwin, St Leonard's

Republican Advisory Committee (1993)An Australian Republic. The OptionOverview andAppendices, 3 vols, AGPS, Canberra

Robertson, Geoffrey (1988) Blood on the Wattle:

A Hypothetical, Australian Broadcasting

Commission, Sydney

Saunders, Cheryl (1994) 'The AustralianExperience with Constitutional Review',Australian Quarterly, 66, Spring 1994

Saunders, Cheryl (1998) It's Your Constitution.

Governing Australia Today, Federation Press, Sydney

Sawer, Geoffrey (1987) Australian Government Today,

13th ed, Pitman, Melbourne

Smith, Rodney (ed.) 1997 Politics in Australia,

Allen and Unwin, Sydney

Solomon, David (1998) Coming of Age: Charter for a

New Australia, University of Queensland Press,

St Lucia

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Taylor, Peter J. (ed.) (1990) World Government,

Oxford University Press, New York

Uhr, John (1998) Deliberative Democracy in Australia.

The Changing Place of Parliament, Cambridge

University Press, Cambridge

Walker, G de Q (1998) The Rule of Law. Foundation of

Constitutional Democracy, Melbourne University

Press, Carlton

Waugh, John (1996) The Rules. An Introduction to the

Australian Constitutions, Melbourne University

Press, South Carlton

Weller, Patrick and Jaensch, Dean (1980) Responsible

Government in Australia, Drummond Publishing,

Richmond

White, Geoffery K (1997) Monarchists, Royalists and

Republicans, White Crest Publications, Macedon

Wicks, Bertram (1997) Understanding the Australian

Constitution, The Plain Words Libra, Sandy Bay

Winterton, George (1983) Parliament, the Executive

and the Governor General. A Constitutional Analysis,

Melbourne University Press, South Carlton

Internet sitesSearches using key words like governance,democracy, government, citizenship, civics andpolitics as well as particular organisations andpeople yield an increasingly rich number of sites,which are usually linked to other sites.

The Australian Constitution is available at severalsites including the Parliamentary Education Office,Constitutional Centenary Foundation andAustralian Local Government Association.

Below is a selection.

ATSIC:

http://www.atsic.gov.au

Australian Electoral Commission:http://www.aec.gov.au

Australians for Constitutional Monarchy:http://www.norepublic.com.au

Australian Governments Entry Point:http://www.nla.gov.au/oz/gov/

Australian Labor Party:http://www.alp.org.au/

Australian Local Government Association:http://www.alga.com.au

Australian Republican Movement:http://www.republic.org.au

Commonwealth Attorney-General's Department:http://www.law.gov.au

Commonwealth Parliament:http://www.aph.gov.au

Constitutional Centenary Foundation:http://www.centenary.org.au

Curriculum Corporation:http: / / www.curriculum.edu.au/democracy /index.htm

David Moss's Australian Politics Resource:http://www.adfa.oz.au/adm/politics/

Democracy in Australia:http://www.mq.edu.au/hpp/politics/y67xa.html

Democrats:

http://www.democrats.org.au

Education Australia Network:http://www.edna.edu.au/EdNA

Founding Documentshttp://www.foundingdocs.gov.au/

High Court of Australia:http://www.hcourt.gov.au

Legislative Assembly, Australian Capital Territory:

http://www.legassembly.act.gov.au

Legislative Assembly, Northern Territory:

http://www.nt.gov.au/lant/

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Liberal Party:http://www.liberal.org.au

National Party:http://www.ozemail.com.au/npafed/

Parliament of New South Wales:

http://www.parliament.nsw.gov.au

Parliament of Queensland:http://www.parliament.q1d.gov.au

Parliament of South Australia:http://www.parliament.sa.gov.au

Parliament of Tasmania:

http://www.parliament.tas.gov.au

Parliament of Victoria:

http://www.parliament.vic.gov.au

Parliament of Western Australia:

http: / /www.parliament.wa.gov.au /parliament/homepage.nsf

Parliamentary Education Office:http://www.peo.gov.au

Women's Constitutional Convention:http: / /www.womensconv.dynamite.com.au /index.htm

Videos and CDsBananas in Electorates (1997), Clarke, John and

Dawe, Brian.

Constitutional Change, First Wednesday ABC

(October 1997) screened Wednesday 1 October1997 ABC TV

Democracy the Australian Way (1997), Australian

Electoral Commission

That's Democracy (1986), Australian Electoral

Commission

The Highest Court (1998), A Film Art Doco

Production

The Millennium Dilemma (1997), Innes, Jane.

5 volumes, University of Wollongong

One Destiny! The Federation Story (1997), Global

Vision Productions Pty Ltd

Labor in Power (1993) ABC Television 5 programmes

The Liberals (1994) ABC Television 5 programmes

Joh's Jury (1993), ABC

The Dismissal (1982), Kennedy Miller Productions

Political Power (1988), Film Australia

A Powerful Choice, ABC TV and Corporate

Production, (PEO)

Cinemedia in Melbourne (phone 03-9929 7044)

have taken over the administration of the NationalLibrary of Australia film and video lendingcollection which includes many of the abovevideos. Their web site is http://cinemedia.net/and the catalogue can be checked from there. Costsare $12 a film (16mm) and $9 for a video plus

return costs.

The Sound and Vision Office of the AustralianParliament House (phone 02-6277 8101) sell videosof parliamentary debates on order.

The-Govmame qt-1 Intro du

Tin ftwmilmanoT lulls kungWaik

Glossary of termsAct of Parliament A law made by Parliament; a bill which has passed three readings in

each House and has received Royal assent.

Agencies Originally government administration was divided into departmentsthe Department of Defence, the Department of the Treasury, and so on.As the years went by a large number of statutory bodies (e.g. theAustralian Electoral Commission) have been formed, until they out-numbered thedepartments. These bodies are called agencies.

Appropriation The voting of money by the Parliament for expenditure by thegovernment.

Appropriation Bill A bill which, if passed by the Parliament, will allow the government tospend money it has gathered through taxation on government services,public works and other programmes.

Australian Ballot Australia pioneered secret voting in the nineteenth century and at thetime it was called 'Australian ballot'.

Backbencher A member of Parliament who is not a member of the Ministry or

Shadow Ministry.

Balance of Power When one person, a group or party has the ability to decide an issue bythe way they vote, that person, group or party may claim to have thebalance of power.

Bicameral A Parliamentary system with two houses, referred to generally as anupper and lower house.

Bill

By-election

Bill of Rights

Bipartisan

In the parliamentary sense, a draft of an Act of Parliament, which themembers will consider and may alter. It remains a Bill in its passage

through Parliament, becoming an Act when the Governor-General gives

the Royal assent by signing it.

When a parliamentary seat becomes vacant because a member ofParliament dies or retires, a by-election is held for that seat only.

(See also general election).

A statement of the fundamental rights and privileges of the people,which the government cannot over-ride if it is built into the Constitution.

Australia does not have one.

'Bi means two, 'partisan' means a person who supports a cause or aparty. When a matter brought before the Parliament has the support ofboth major political parties, it is said to have bipartisan support.

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The Goxernance of_Australi-a-_. Kit 1 Introit-al-ion_17

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Cabinet

Caucus

Coalition

Colony

Committee of the Whole

Common Law

Commonwealth

Consolidated Revenue Fund

Constituent

Constitutional Monarchy

Convention

Crossing the Floor

The group of most senior ministers of a government, lead by thePrime Minister.

A meeting of a group. Usually refers to the parliamentary membership ofa political party, especially the Labor Party.

An alliance between two separate political parties which maintain theirown identity and rules. The Liberal/National Party coalition is anexample in Australian politics.

A place or territory that is governed by a ruling power from which it is

physically separated.

A committee consisting of all members of the Senate or the House ofRepresentatives, usually formed to consider a bill in detail.

Law that is developed by the courts through the decisions of judges, asdistinct from statutory law made by the Parliament. British common lawcame to Australia with British settlement, and Australian common law

has had a parallel development.

This word comes from an old English word 'commonweal', which has beenin use since at least 1469, meaning for the common good of the people. In

relation to the Constitution it means the uniting of States for the commongood. The opening sentence of the Constitution says that the States 'have

agreed to unite in one indissoluble Federal Commonwealth'.

The account maintained by the Treasury into which all the income of the

Commonwealth is brought together.

Someone who votes or lives in a particular ward, division or electoratewhich a Member of Parliament or councillor represents.

A system of government in which a Constitution and its unwrittenconventions limits the powers of an hereditary monarch and regulatesthe operation of government.

First meaning: The coming together of a group of people for a commonpurpose, as for example to design a Constitution or to make changes tothe Constitution. Second meaning: A treaty or agreement on a specificsubject reached between nations, such as the International Convention(Safety of Life at Sea). Third meaning: A way of doing things that is not

written into law but is understood and respected by the people

concerned.

When a member from the government or opposition votes with theopposite group, seated on the other side of the parliamentary chamber to

where the member normally sits.

Customs Duty A duty or tax on goods imported into Australia.

2i-GDwin_aLnce otAustralla - Kit 1 Introduictiim18

Govemince cff komOuton]

Democracy

Dictatorship

Dissolution

Division

Donkey Vote

Executive, The

Executive Council

A system of government where power ultimately rests with the people,either in a direct way or through the right to elect representatives.

A system of government in which the leader, the dictator, has supreme power

and positions of authority are filled by appointment rather than election.

The formal order given by the Governor-General to end a period of aParliament and initiate an election. A double dissolution is when bothHouses of Parliament are dissolved.

A formal vote in Parliament when members move to either side of thespeaker's chair to register their voteaffirmative to the right of the chair,negative to the left.

This occurs when a voter lists their preferences from top to bottom on aballot paper.

The branch of government charged with the day-to-day running of theaffairs of the nation.

The federal Executive Council is formally, with the Governor-General,

the chief executive authority of the Commonwealththe council ofministers which advises the Governor-General and gives legal form to

cabinet decisions.

Faction An organised, permanent group within a political party.

Federalism A system of government which combines self-rule with shared rule, and in

which power is shared between a central government and more local levels

of government. Australia has a federal system, with the central governmentin Canberra and the more local levels of government in the States.

Federation The forming of a nation by the union of a number of States which dividetheir powers with a national Parliament.

Founding Fathers

Franchise

A popular name for the group of men who prepared the AustralianConstitution and established the Australian federation. This phrase is also

used to describe the constitution makers of the United States of America.

The right to vote in elections. Franchise may be restricted on the groundsof age, property ownership or even gender or race. All thesequalifications have been used in Australia since the first elections in NewSouth Wales in 1843. Currently the franchise in Australia is restricted toany person at least 18 years old, who is an Australian citizen, who haslived in Australia for six months continuously, and in the electoralsubdivision for which they wish to vote for at least one month. Certainpeople are disenfranchised: people of unsound mind; people undersentence of imprisonment for five years or more; people convicted oftreason. Until 1984 a British resident in Australia had the franchiseautomatically even if they were not Australian citizens. Now they, and all

voters, must be Australian citizens.

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Frontbenchers Members of Parliament who hold positions in the ministry orshadow ministry. They sit on the seats immediately to the left andright of the Speaker.

Gag A parliamentary motion, usually presented by a member of thegovernment, to bring a debate to an end.

General Election An election in which all seats for Parliament declared vacant are contested.

Gerrymander A drawing of the electoral boundaries in such a way as to create an

advantage for one party.

Guillotine A parliamentary motion which places a time limit on the length of a debate.

Hansard A word by word record of parliamentary debate.

Her Majesty in Council See Queen in Council.

High Court Australia's highest court of appeal, set up under Section 71 of theConstitution to decide on matters of dispute which are brought before itand interpret the Constitution.

House of Commons The English equivalent of the Australian House of Representatives.

House of Representatives One of the two Houses of the Parliament of the Commonwealth, oftenreferred to as the Lower House. The Prime Minister and most Ministers aremembers of this House, and it is where most legislation is introduced.

Independent A candidate for an election who is not formally linked with a political party.

Informal Vote A ballot paper which has been incorrectly marked and, therefore, is invalid.

Instrument A very broad legal term to mean something in writing which has aparticular effect. Regulations, statutory rules, etc., come within the

definition of instruments.

Inter-State Commission A body set up at the time of Federation with a supervisory role inrelation to trade and commerce. The body has ceased to exist, butreferences to it have not yet been deleted from the Constitution.

Judicature An umbrella term to describe the system of the courts and judges.

Judiciary A narrower meaning than 'Judicature', usually used to refer to the judges

as distinct from the court system.

Jurisdiction The extent of a court's authority to transact business, especially thenature of cases it can hear. The Family Court has a wide jurisdiction infamily-related matters only. In state courts jurisdiction often refers toamounts of money. A small claims court may have the jurisdiction todeal with claims up to, say, $3000. Claims above that amount go to

another court.

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Justice of the High Court

Legislation

Liberalism

Lower House

Malapportionment

Ministry

Ombudsman

Parliamentary Democracy

Parliamentary Secretary

Party Discipline

Party Room

Plebiscite

Portfolio

Preamble

A judge of the High Court.

A law or set of laws passed by Parliament.

A philosophy which stresses the rights and value of individual freedomas against that of the State.

House of Representatives.

A situation where the number of voters in one electorate is significantlyhigher or lower than the number in another electorate. It creates asituation where one person's vote is stronger than that of another person.This is sometimes incorrectly referred to as a 'gerrymander'.

Members of Parliament appointed by the Governor-General, on therecommendation of the Prime Minister, who form the Executive

Government.

An official appointed by the government to investigate complaintsagainst government departments.

A system of government in which power is vested in the people, whoexercise their power through elected representatives in Parliament.

A Member of either House appointed to the executive council andresponsible for assisting a minister in routine parliamentary andadministrative taskswhile having no power to introduce legislation orbeing held responsible for the conduct of the portfolio.

In order to perform effectively as a united body, each party expects itsmembers to support policy and the leadership. In the Labor Party this ismore formalised than in the case of the Liberal Party, but both parties

exercise strong party discipline.

Used with respect to the Liberal Party and the National Party, it has thesame meaning as 'caucus' to the Labor Partythe assembly of theLiberal or National members of Parliament meeting privately inParliament House to decide matters.

A ballot taken by a government, usually in the form of asking for ananswer YES or NO to a question, to get an indication of public feeling on

the question.

The area of responsibility or duties of a minister in the governmentthedepartment for which a minister is responsible.

The opening statement in a parliamentary Bill or in certain other legaldocuments. It nearly always starts with the word 'Whereas...', and goeson to explain the background to or the reason for the Bill that follows.

'Thk-G:oyernalice ortcustralla Kit- ducti2

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Pre-selection

Press Council

The process adopted by political parties to select and endorse candidatesfor election.

An independent authority established by the commercial media toinvestigate complaints against the media.

Pressure Group An organisation or group of people who seek to influence governmentpolicy in accordance with their own sectional or ideological beliefs. Theymay stand candidates for election but usually they are more concernedwith influencing policy than participating formally in the Parliament.

Private Member's/Senator's Bill A Bill introduced into the Parliament by a member who is not a memberof the ministry.

Proportional Representation An election system that is possible only where the law provides for morethat one member to represent an electorate, as in the Australian Senate.The Senate system is designed to return members from each party moreor less in proportion to the number of votes cast for that party. Thesystem does not apply to single member electorates, such as thoseprescribed for the House of Representatives.

Prorogue A routine happening when the proceedings of the Parliament arediscontinued by the Governor-General, usually at the end of a year. TheParliament as elected remains alive and is reconvened at a future date.

Protectionism In colonial terms, the policy of imposing duties at the border of a colonyto prevent or to discourage the movement of goods and livestock intothe colony.

Queen in Council This term had a special meaning relating to court appeals, which is thesense in which it is used in the Australia Act 1986. The highest court ofappeal in the United Kingdom is the Judicial Committee of the House ofLords, comprised of an elite group of judges who are elevated to thepeerage on taking office. It used to be the case that those same judgeswould sit on appeals from Dominion courts, and were called in thatcapacity the Queen in Council, Her Majesty in Council, or morecommonly the Privy Council. The Queen had no judicial role at all. As aresult of Section 11 of the Australia Act 1986, which terminated appealsto the Privy Council, it no longer applies to Australia.

Question Time A section of the parliamentary day which provides members of allparties with the opportunity to question ministers on a wide range ofissues. Although it is open to abuse by government and opposition alike,it is a very important part of the parliamentary process.

Redistribution The process of redrawing electoral boundaries according to a range ofestablished criteria. Changes in population density require suchredistributions to be conducted on a regular basis in order to ensure thatthe number of voters in each electorate is roughly equal, that is, tomaintain the practice of one vote, one value.

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Referendum

Republic

Revenue

Seat of Government

Select Committee

Senate

Shadow Ministry

Socialism

Sovereignty

Speaker

Standing Committees

State

Statutory Authority

A ballot similar to a plebiscite, but linked in Australia with the approvalor rejection of a Constitutional Amendment Act. A proposal to changethe federal Constitution must first be passed by the Parliament and thenput to the people. To be successful the proposal must be passed in four ofthe six States and it must also achieve a national majority of votes. (SeeSection 128 of the Australian Constitution).

A state in which sovereignty is derived from the people, and in which allpublic offices are filled by persons ultimately deriving their authorityfrom the people.

The income of a state or a nation arising from taxation and other sources.

The capital city.

A group of members of either or both Houses appointed to inquire andreport on a particular matter, whereafter the committee ceases to exist.

One of the two Houses of the Parliament of the Commonwealth whereineach State has equal representation regardless of its population. Theupper, or States' house or 'house of review'.

Members of the main opposition party or parties in Parliament who arespokespersons in areas which usually match the areas of responsibility ofministers in the government.

A economic system which favours government control and ownership ofthe economy in order to be able to bring about a higher degree ofequality throughout society.

The independent source of power in any political system.

A person elected by the members of the House of Representatives topreside at meetings of the House. The corresponding office in the Senateis that of President. This office should not be confused with a Presidentof a republic.

A group of parliamentarians appointed by either or both Houses toinquire into certain matters and existing for the life of the parliament.

First meaning: An independent nation. Second meaning: A geographicaland political area that is part of a federation.

A government agency set up by an Act of Parliament, more or lessindependent of ministerial control but responsible ultimately toParliament.

Supply Interim finance authorised by the Parliament pending approval of thedetailed Appropriation Act.

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Ultra Vires

Unitary System

'Outside the powers'. When the Commonwealth Government, which hasrestricted powers to make laws, called meetings with the States to passuniform gun laws on a co-operative basis, they did so because, under theConstitution, they had no power to make gun laws for the nation. If theyhad gone ahead and passed an Act setting up gun laws for the wholenation the Act would have been ultra vires and invalid.

A system of government that provides for one central governmentauthority, such as Britain or New Zealand, rather than dividing powerbetween a central authority and regional authorities such as occursunder a federal system.

Upper House The Senate and State Legislative Councils are Australian examples.

Westminster System The parliamentary system that largely exists in Australia, adapted fromthe United Kingdom system, named after the London borough in whichthe British Houses of Parliament are situated.

Writ In the Parliamentary sense, a document requiring something to be done,as for example a writ by the Governor-General to call an election.

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Evaluation formTo Civics Learning Circles Project, Adult Learning Australia Inc.,PO Box 308, Jamison Centre, ACT, 2614. Phone: 02-6251 7933 Fax: 02-6251 7935 e-mail info@ala.asn.au

Group Registration Details.

Please register our group for further civics learning circles

Address:

Contact person for correspondence.

Address and phone number (if different to above):

Expectations of the group at the beginning:

What were the best aspects of the kit?

What could have been better about the kit'

How did you modify and/or extend the kit?

What were the outcomes for the group /individual?

Please include some comments from members about your learning circle:

Thank you for taking the time to complete this evaluation

Thi Governance of-Australi-a_,_-__Kit 1 intratrclio_ru2

GoyaEWE= Austr24 of

Resource materials1. RepublicYes or No? (Dept PM&C)

2. Constitutional Convention brochure (Dept PM&C)

3. Electoral Systems of Australia's Parliament's (AEC)

and Local GovernmentAustralian Joint Roll Councilin pamphlet form

4. All You Wanted to Know About Australian Democracy (AEC)

5. Information SheetAustralia a Federal Nation (AEC)

6. Information SheetConstitutional Amendment Process (AEC)

7. Behind the ScenesAEC 1996 Federal Election Report (AEC)

8. Information SheetConstitutional Referendums (AEC)

9. Australian Democracy Magazine (AEC)

10. Electoral Pocket Book (AEC)

11. Politics & Legal Studies BriefConstitutional Monarchy or Republic (PEO)

12. Legal Studies BriefMaking Laws (PEO)

13. The Australian Constitution (CCF)

14. Round TableThe People's Convention (CCF)

15. Round TableThe Constitutional Convention (CCF)

16. High Court of Australia brochure (High Court)

17. RepublicYour Choice The Weekend Australian 8-9 November 1997

18. Parliamentary and News Network schedule

19. Video'A Powerful Choice' (PEO)

Note: This resource is not included in all kits. If you wish to see it arrange to borrow it from a local

school, public library, electoral education centre or Cinemedia.

The_GDATTLITymce-arAustran - Kit-1 Intro c rEMil26

ALA

V

-Session

DISCOVERINGDEMOCRACY

ligISCOVERING

BEST COPY AVAILABLE

The Governance of Australia - Kit 1

27

IntroductionThis first session is designed to help your learningcircle get going, and to pose some questions aboutdemocracy and generally how Australia isgoverned today.

The aims of the session are:

for members of the group to get to know each

other;

to share the interests, experiences andexpectation that bring members to the learningcircle;

for group members to familiarise themselveswith the contents of the kit;

to begin exploring the kind of governmentAustralia has and its strengths and weaknesses;and

for the group to develop a plan for their futuremeetings.

Learning circle participants should read the sessionguides before meeting and decide which aspects ofthe guide they wish to follow up. This will usuallybe by discussion, however, a learning circle maydecide to involve visitors as guest speakers, view afilm or video, visit an appropriate site, doindividual or small group research and interviews,compile a press cutting scrapbook or maintaindiaries. Some activities within sessions may be ofmore interest than others and indeed somesessions may lead the group into more detaileddiscussions which cause them to curtail other

sessions.

The activities of the learning circle should reflectthe interests and concerns of its participants. Thesewill evolve as the learning circle group continuesto meet in a spirit of enquiry and democracy.

Suggested activitiesInformal interaction 2

Welcome and round table 2

Guidelines and procedures 2

Customising the kit 4

What the governance of Australia 5

means to us

What democracy means to us 6

Democracy and the individual 8

Comparison with other countries 9

Conclusions, evaluation, tasks for 10

the next session.

Background document 1Monty Python and the Search for

the Holy Grail

11

Background document 2 13

Types of democracy

Background document 3 16

Governments of the world

Background document 4Features of democratic societiesand governments

ResourcesABC to Learning Circles

17

Australian Democracy Magazine, 1997, Australian

Electoral Commission

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Informalinteraction

When you arrive:

greet each person there and identify thefacilitator;

fill out a name tag;

check your details on the contact list;

look at the material in the kit; and

talk informally about the activities you areinterested in.

Welcome &round table

Guidelines &procedures

The facilitator should start the meeting byintroducing himself/herself and explaininghis/her expectations and then proceed by askingeach person to introduce themselves and explaintheir expectations about the learning circle.

Alternatively the facilitator, or a participant, couldsuggest using a time-tested 'warm-up' activitysuch as talking to the person next to you and afterthree to five minutes introducing them to thegroup by telling the group the most interestingthing you have found out about that person,and/or their expectations of the learning circle.

Note: The booklet The ABC to Learning Circles,

included in the kit provides more detail about

participating in and facilitating learning circles.

Remember that learning circles are designed tohelp people learn from each other, using materialprovided in the kit (session guides and otherresources) and material gathered from elsewhereas a framework. Remember it is not a text orcurriculum, but a guide.

Some tips for this, and later, sessions:

Decide on the length of your meetings, whenyou will have a break and when you will finish(including packing up resources andequipment).

Learning circle members are good listeners andhelp other people express their ideas by beingactive listeners (i.e., showing interest with bodylanguage, eye contact, talking notes, etc.). Ofcourse, the group members may have alreadydone a listening exercise by talking to andintroducing their neighbour. How successfulwas it?

Keep contributions short so everyone gets achance to speak. This will reduce the chance ofbeing interrupted. The facilitator may have tointervene.

Asking everyone their views will give everyonea chance to speak and listen. Facilitators shouldtry to avoid going round the circle, as the lastrespondent is immediately put in a difficult

position.

Remember, everyone has the right to expresstheir views and opinions.

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Disagreement over an issue is fine, but don'tmake disagreements personal. Be hard on thesubject, not the people.

Try to include a variety of activities as peoplelearn in different ways, including speaking,reading, listening, viewing, drawing, writing,role plays and so on.

Like most human activities, a learning circle

usually gets better with practice! Be patient, look

for positive outcomes and relationships, andlearn more about each other and the subject area.

Discussion:Establish some ground rules. Yourlearning circle should discuss andagree on a few basic ground rules forthe way the want to operate. This isdemocracy in action! You may wish touse established meeting procedures, ordevelop alternatives. These rules couldbe changed or added to later on as thelearning circle develops, but youshould decide how!

BEST COPY AVAILABLE

_____The_Goyenranze_ofi-Austratia - Kit-1 SessIDA30

Customising the kitThe first session offers focus questions toencourage participants to consider what isdemocracy, what are the main elements of ourpresent system of government, its strengths andweaknesses, and participants' concerns aboutissues which impinge on governance, and ideas forthe future. This is an important session, howeverthe group, after establishing its goals, may wish tofocus on sessions of relevance to those goals andnot feel they have to cover all sessions.

Familiarise yourselves with the resources providedin the kit and consider whether you need to accessadditional resources from the suggested listand/or from your own resources.

Remember that these kits have been developed forlearning circles all around Australia and cannotgive detailed information on local areas and issues.Consider developing a list of personal and localconcerns and then perhaps consider how typicalthey are.

Remember that thekit offers a range of material

you don't have to 'do' it all,and you don't have to 'do' it in

the order it is printed

You are also encouraged to invite local guests(speakers or otherwise!) and arrange visits toplaces which help you understand and extend thelearning circle material. These may be places ofgovernment (e.g. Parliament Houses, CouncilChambers) electoral education centres, locallibraries, museums or historical locations.

Remember that the kit offers a range of materialyou don't have to 'do' it all, and you don't have to'do' it in the order it is printed. You may decide toleave out a session or two, or have two or moresessions where the kit allows for one. It is yourlearning circle!

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What the governance ofAustralia means to us

Governance means different things to differentpeople, as the group will see in the followingsessions of the learning circle. Whereas somepeople will be fascinated with the details ofelections, others will be concerned about aspects ofthe law that arise from the Constitution andparliamentary legislation and others will befascinated by the lifestyles of politicians, lobbyistsand media personalities. Some will regard it astheir main source of humour and will have a richfund of political jokes.

Others will see governance directly connected totheir personal aspirations whether these involvegetting or keeping a job, being a member of apolitical party, a trade union, a professionalassociation or seeking government recognition of acommunity, social, or occupational group. Othersmay have worked on polling booths, handed outhow-to-vote-cards or have been party scrutineersat elections. Some will have been involved instrikes, demonstrations or lobbying campaigns toget their political point of view across and to get abetter deal for their group. Others may have mettheir parliamentary representatives individually orhave had correspondence with them.

These experiences may have been directed at

Commonwealth, State or local government and may

have resulted in a new pedestrian crossing in front of

a school, increased benefits for veterans or changes in

the law or its administration. If the personal is the

political then everyone has relevant experiences.

Look at the focus question and use it as a guide toget discussion going. Make sure everyone in thegroup gets a chance to speak. If the group is large,maybe it would be easier to discuss the questionsin pairs before talking as a complete group.

Activity:The print and electronic mediaconstantly reports matters ofgovernance and politics. As a group,list some of the most topical words andphrases that are reported and discussedin your workplace, with family orwhen you are relaxing with friends.Write them up on butcher's paper or awhite/blackboard and then go aroundthe group with each person reflectingon what these words and phrases meanto them.

Some starters:

an Australian republic;

reconciliation;

States rights; and

behaviour of politicians.

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What democracy means to us'Democracy' is a commonly used word. Whenchildren are restricted or overruled by their parentsthey often reply 'I thought we lived in ademocracy!'. Most Australians would claim thatour elections and government are democratic. Ourcommunity organisations claim they are run in ademocratic manner. However, do all these uses

mean the same thing?

'Democracy' is also a complex word, as it canincorporate both a set of ideals (e.g. freedom ofspeech and equality before the law) and thepractice of government (e.g. voting rights for allcitizens, agencies to seek governmentaccountability). It often needs to be used withadjectivesparliamentary democracy, directdemocracy, industrial democracy, electoraldemocracyand has changed its meaningover time.

Here are some comments about democracy.

It has been said that democracy is the worst form

of government except all those other forms that

have been tried from time to time.

Winston Churchill in the House of Commons, 1947

Until about a hundred years ago democracy was a

bad thing. In the next fifty years it became a good

thing, and in the last fifty years it has become an

ambiguous thing.

C.B. Macpherson in The Real Meaning of Democracy

Democracy is more complex and more intricate

than any other political form.

Giovanni Sartori in Democratic Theory

Democracy is government of the people, by the

people, for the people.

Abraham Lincoln

Cut the power to the peopleWe fail to realise how recent an experiment in

government democracy is. A couple of hundred

yearsand invented by dead white European

males at that.

Yet in its short life it has produced greater, and

worse, tyrants than the whole of recorded human

history prior to its advent. It has also produced

more bumbling incompetents. The vast majority of

these murderers, put into power by the people,

through democratic revolution or the ballot box,

together with the capacity-challenged presidents

and premiers, have been themselves men, and

occasionally women, of the people: postcard artists,

Grantham grocers' daughters, that sort of thing.

Democracy puts demons and dumb-bums there.

Democracy is both stupid and evil.

Democracy gives people the right to choose by

whom they should be governed. It is a right that

they do not deserve and they should not have.

Democracy has proved disastrous for humanity. It

has, as well as giving dictators and dimwits

power, created the ecological disaster we are now

told constitutes Parent Earth.

Democracy is a stinking paradox. It gives licence

to the unworthiest of human beings and human

traits. We get the politicians we deserve. It will go

on, as leaders and politicians grow ever more

adept at using the power bestowed on them by the

people. The labels may change: but is John Howard

and his government all that different from Paul

Keating and his? Or Tony Blair's from Margaret

Thatcher's? Or, in the past, Hitler's from Stalin's?

It is not adversariness that determines the woeful

evil of democracy. It is the nature of democracy

itself. The wise and the good will always be a

minority. That is why we cannot now turn back

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the clock. Give the rampant sinfulness and

corruption that reposes in the majority of

humankind the power it cravesand democracy

has done just thatand look at the state we are in.

Bill Mandle, The Canberra Times, 29 March 1998

Attack on democracy offensiveBill Mandle's gratuitously offensive piece in the

Sunday Times demands a response. It is not only

an abuse of journalistic licence but displays, as

well, the author's own ignorance.

Democracy is not, as Mandle dismissively

describes it, an experiment in governing that is

only 'a couple of hundred years' old. On the

contrary, democracy as a structure for political

expression began in Athens nearly 2,500 years

ago, and flourished in the Greek world. And far

from proving disastrous for the Athenians, the

period was an immense intellectual and cultural

flowering never seen before or since.

In addition to imply that Pol Pot and Mao Zedong

are products of democratic systems merely advertises

Mandle's intellectual bankruptcy, and is as

laughable as his suggestion that the ecological crisis

facing the planet is purely a product of democratic

politics. Only the bigoted and the ignorant would

deny that the pollution and ecological problems the

planet faces are the by-product of a rampant

capitalism that does indeed, appeal to the selfish,

envious and greedy amongst us.

Andrew Wilson, Narrabundah, The Canberra Times,2 April 1998

Discussion:What do you think of the opinionsexpressed by Mandle and Wilson?

Most descriptions of modern Australiawould describe it as a democracy, andsome claim that Australia was apioneer in developing democraticgovernment over a century ago. Butwhat does this really mean?

Make a list (in pairs/small groups/or asa complete group) of the main featuresof a democracy. Which ones are themost important? How does Australiarate? (If you need some suggestionslook at Background document 4, p 17).

Discuss and try to reach agreement ontwo areas in our system of governmentthat could be made more democratic.

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Democracy and the individualWhen we discuss democracy and democraticgovernment we can identify many qualities andperspectives. This has lead political commentatorsto identify some different types or styles ofdemocracy. These are outlined in Backgrounddocument 2 (p 13). Some would describe aconstitutional monarchy as democratic, otherswould not. Liberal democrats would disagree withsocial democrats about many issuessuch as lawand order, economic management and industrialrelations. They would probably also disagree aboutthe questions of constitutional change currentlybeing discussed in Australia. Others feel that beingable to vote in fair elections is enough evidence ofa democratic system.

Researchers who have studied the socialpsychology of democratic groups and democraticbehaviour have identified six core attitudes andvalues of democracy:

Fairnessequal rights and opportunities.

Open-mindednesswillingness to suspendjudgement and to tolerate ambiguity.

Realisma respect for the facts.

Freedom from unnecessary status consciousness.

Individual self-acceptance and self-confidence.

Friendliness, generous assumptions about humannature ('fraternity').

(For more details see Lippitt, R. & White, R.K.

(1960) Autocracy and democracy. An experimental

inquiry, Harper, New York)

Democratic leadersof groups, or organisations,or in the communityare those who hold, andencourage such attitudes and values.

Discussion:Would you describe yourself as'democratic' in the roles that you playin your family, workplace, orcommunity?

Do you ever dream about being adictator for a day to sort out all thosethings which frustrate you? Whichthings would you change? Would thechanges enhance or limit democracy?

Can the group identify and discusssome Australian women and men whohave shown outstanding democraticleadership in and out of parliament?

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Comparison with other countriesMany learning circle members will have had someexperience of other systems of governance. Theymay be immigrants to Australia, have connectionsthrough their families with other countries, or mayhave visited other countries to work or tour. If not,members will probably have visited othercountries through current affairs programs on theirtelevisions and their reading! This wealth ofpersonal experience can be used by the group toexplore aspects of democracy and governance. Thematerial in Background document 3 (p 16)'Governments of the world'may help in thisactivity.

Activity:Share your experiences (briefly!) ofgovernment systems in other countries.Try and agree on one example of asystem of government that is lessdemocratic than Australia's, andanother that is more democratic. Canthe group agree? What are the mostimportant features of democracy andgovernment that you have used intrying to decide?

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Conclusions, evaluations andtasks for next session

Before finishing, members should reflect on whathas been learned, and the way the session has run.You might also confirm the time and place for thenext session, and decide on any preparations for it.The following are possible tasks.

What does each learning circle member feel hasbeen achieved in this session? Was it what youagreed at the start? What goals do you want toachieve for the rest of the programme?

Which areas have not been covered and shouldextra time be allowed in a later meeting?

Were there any problems with the way the sessionwas conducted? If so, how can they be fixed? Doeseveryone agree?

Confirm the time and place for the next session.Discuss if any extras are neededaudio-visualequipment, refreshments, etc.

Discuss preparation for the next meeting. How willthe Kit's resources be divided up between thesessions? Are extra resources needed? Who will get

them? Are there any issues, problems, questionsthat need to be followed up from the first session?Who will do this work?

Distribute Session Two notes.

Optional extraactivity:Consider starting a Learning Circlejournala place for notes, presscuttings and other information, andyour personal thoughts and ideasabout the group and its activities. Thisjournal could remain a private projector could be used in learning circlediscussions.

Next Session:The Constitution:Basis for Stabilityor Constraint toChange?

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Background document 1Monty Python and the search for the Holy Grail

You may prefer to watch this satirical commentary on government on the commercially available video(probably in your local video shop or even public library). It is also available in audio and print form.

Scene: King Arthur is travelling the medieval English countryside with his valet, searching for recruitsfor his Round Table and an honourable mission for the group he seeks to form. He sees a group ofserfs working in a field, and an imposing castle in the distance. He stops and says:

King Arthur: Old woman!

Serf: Man!

Arthur: Man, sorry. What knight lives in that castle over there?

Seth I'm 37.

Arthur: What?

Serf: I'm 37. I'm not old.

Arthur: Well, I can't just call you man.

Serf: Dennis.

Arthur: Well I didn't know you were called Dennis.

Serf: You didn't bother to find out, did you?

Arthur: I did say sorry about the old woman, but from behind you looked...

Dennis: What I object to is that you automatically treat me like an inferior.

Arthur: Well, I am king.

Dennis: Oh, king, eh! Very nice! And how did you get that, eh? By exploiting the workers! By hangingon to outdated imperialist dogma which perpetuates the economic and social differences in oursociety. If there is ever going to be any progress...

Female Voice: Dennis, there is some lovely filth down here! Oh! [sees Arthur] How do you do?

Arthur: How do you do, good lady? I'm Arthur, King of the Britons. Whose castle is that?

Old woman: King of the who?

Arthur: The Britons.

Old woman: Who are the Britons?

Arthur: We all are. We are all Britons, and I am your King.

Old woman: I didn't know we had a king. I thought we were an autonomous collective.

Dennis: You're fooling yourself. We're living in a dictatorship. A self-perpetuating autocracy in

which the working classes...

Old woman: There you go, bringing class into it again.

Dennis: That's what its all about, if only people would...

Arthur: Please, please, good people. I am in haste. Who lives in that castle?

Old woman: No-one lives there.

Arthur: Then, who is your lord?

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Backgmund document IOld woman: We don't have a lord.

Arthur: What?

Dennis: I told you. We are an anarcho-syndicalist commune. We take it in turns to act as a sort

of executive officer for the week.

Arthur: Yes...

Dennis: But, all the decisions of that officer have to be ratified at a special bi-weekly meeting.

Arthur: Yes, I see...

Dennis: By a simple majority in the case of purely internal affairs...

Arthur: Yes, be quiet...

Dennis: And a two-thirds majority in the case of...

Arthur: Be quiet! I order you to be quiet!

Old woman: Order, eh? Who does he think he is?

Arthur: I am your king!

Old woman: Well, I didn't vote for you!

Arthur: You don't vote for kings!

Old woman: Well, how do you become king, then?

Arthur: The Lady of the Lake, her arm clad in the purest, shimmering samite held aloft Excaliburfrom the bosom of the water, signifying by Divine providence that I, Arthur, was to carryExcalibur. That is why I am your King!

Dennis: Listen, strange women lying in ponds distributing swords is no basis for a system ofgovernment. Supreme executive power derives from a mandate from the masses. Not from some

farcical aquatic ceremony.

Arthur: Be quiet!

Dennis: You can't expect to wield supreme executive power just because some watery tart threw

a sword at you!

Arthur: Shut up!

Dennis: I mean if I went around, saying I was an Emperor just because some moistened bint hadlobbed a scimitar at me, they'd put me away.

Arthur: Shut up! Will you shut up!!

Dennis: Now we see the violence inherent in the system. Come and see the violence inherent in

the system! Help. Help. I'm being repressed!

Arthur: Bloody peasant.

Dennis: Oh, what a give away. That's what I'm on about. Did you see him repressing me? You

saw it, didn't you?

Does this skit throw any light on the question of what is and isn't democratic?

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Background document 2Types of Democracy

Democracy is usually regarded as having twomain forms: direct or participatorydemocracy, and representative democracy.'Liberal democracy' and 'social democracy'are two common styles of representativedemocracy.

President Sukarno, leader of Indonesia fromits independence to 1965, developed analternative approach which he called 'guideddemocracy', which gave great influence tohimself, as President.

Direct democracyDirect, or participatory democracy claims itsroots and its name in the plakas (marketplaces) of classical Greece. However,although some Greek city-states weredemocracies, others were oligarchies.Democracy is the conjunction of the Greekwords demospeople, and kratiarule. Thefree citizens of the small Greek city-statesgathered together regularly to discuss andvote on their affairs. All matters werediscussed in an open way, with all attendeeshaving an equal chance to speak, and allwere able to influence the decision byspeaking and voting.

Although the Greek city-states comprised, inthe case of Athens, up to 300,000inhabitants, only citizens (males over 30years), who are estimated to have numbered20,000-40,000, could participate in theirgovernment. This excluded women, youths,all slaves and resident aliens. However, eventhese numbers made mass meetingsimpossible. Although all citizens had equalright to membership of the governing

bodies, these had to be of a manageable size.

In Athens, for which we have gooddescriptions, they were the assembly ofcitizens, the council and the courts. Theassembly held some 40 meetings a year anddecided all the internal and foreign policiesof the city-states, who sometimes were atwar with each other. It had widemembership who were active in its debates.

Plato described it thus: 'When the debate ison the general government of the city,anyone gets up and advises them, whetherhe be a carpenter, a smith or a leatherworker, a merchant or a sea captain, rich orpoor, noble or humble'. However, theagenda of the assembly was determined bythe council. It was also an elected body of500 elected from the electoral districts,called 'demes', of Athens. The third body,the juries consisted of 6000 citizens chosenannually by lot to form popular law courts.They were not professional judges orlawyers. The juries acted as guardians of theconstitution and of law and order generally.

In addition to these governing bodies, tengenerals were chosen by all the citizens.They controlled defence and foreign policyand commanded a citizen army in wartime,when a citizen transformed himself into asoldier by 'going home for his shield, hisspear and his rations, and reporting fororders'.

Are some or all of the elements of Atheniandirect democracy relevant to Australia today?How have the ideas and practices of thosetimes been incorporated into moderndemocracies?

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Backgrnuncil document 2Representative democracyRepresentative democracy had its birth inthe development of medieval nations inEurope. Medieval landowners, and latermerchants, demanded a say in governmentswhich to that time had been dominated byKings. Up to that time monarchs hadasserted that their power was based on theDivine Will of God and they did notrecognise the sovereignty of the people theygoverned. From the 12th century merchants,landowners and others gathered together toelect representatives who then went to acentral place, called a parliament in WesternEurope, to discuss and vote on theircountry's affairs.

This beginning was a long way away frommodern representative government, as itwas typically based on a very limited,aristocratic, male franchise. The right to votewas gradually extended, as was the size ofthe 'Houses' of Parliament, and the powersof the monarchs were progressively limited.

By the end of the eighteenth century theage of written, democratic constitutions hadbegun, when the Constitution of the UnitedStates of America, a new nation formed fromex-British colonies, was written. Itincorporated these words from theDeclaration of Independence (from Britain)in 1776: 'That all men are created equal, thatthey are endowed by their Creator withcertain inalienable rightslife, liberty andthe pursuit of happinessthat to securethese rights, governments are institutedamong men'.

The concept that governments came fromthe people, and for their benefit, was arevolutionary thought that had been

developed in the writings of John Locke(1632-1704). The American Constitution wassoon followed by the first of many FrenchConstitutions proclaiming the Rights of Manand the Citizen. 'Men are born free andequal in rights' it proclaimed. Men, and laterwomen too, would elect theirrepresentatives to parliaments in everincreasing numbers.

Representative democracy emphasises theneed for representatives to reflect the needsand interests of their constituents. Somehave argued that after their election therepresentative should become a person ofindependent judgement and consider thematters before the parliamentary assemblysolely on their merits. Edmund Burke(1729-97), the notable conservative politicaltheorist and parliamentarian, took thisstance, and also argued for the pre-eminenceof tradition in government. He said 'Thestate becomes a partnership not onlybetween those who are living, but betweenthose who are living and those who aredead'.

Representative democracy is synonymouswith parliamentary democracy although theexecutive members elected in clubs andsocieties carry on the governance of thoseorganisations as representatives. Althoughthe franchise has been extended in Australiato include all citizens over the age of 18 yearsit is increasingly discussed whether this agelimit should be lowered to 16 years.

The principle of representation by itself doesnot determine the nature of thegovernment. Other terms are used todescribe the distinctive character or style ofrepresentative democracies.

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Backgmund document 2Liberal democracyLiberal democracy is based on four mainprinciples:

a belief in the individual, based on theidea that the individual is both moral andrational, and the need to maximise thefreedom of the individual;

a belief in reason and progress, based onthe belief that growth and developmentare the natural condition of mankind;

a consensual theory of society based onthe desire for order and co-operation; and

a suspicion of concentrated forms ofpower, whether by individuals, groups orgovernments.

The main characteristics or tendencies ofliberal democracies include:

attempts to defend or increase civilliberties against the encroachments ofgovernments, institutions and powerfulforces in society;

restriction or regulation of governmentintervention in political, economic andmoral matters;

increasing the scope for religious, politicaland intellectual freedoms of citizens;

questioning the demands made by vestedinterest groups seeking special privileges;

developing a society open to talent andwhich rewards merit rather than rank,privilege or status; and

framing rules which maximise the well-being of all or most citizens.

Social democracySocial democracy has been described as thedesire for an equal and classless society andhas been a phenomenon of the last century.Unlike liberal democrats, social democratsmaintain that the individual is not asimportant as the whole society and arguethat individuals may have to live withrestrictions on their freedom for the overallgood of society, particularly its minoritiesand disadvantaged groups.

Participation is one expression of socialdemocracy. The franchise in these systems hadbeen expanded to all men, women and youthsfrom the age of 18 years. Apart from elections,social democracies try to maximise participationby consultation and openness of government.Another feature is the preoccupation with socialequality and with ways of attaining it throughsocial services, expanded governmenteducation systems and government legislation.

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Background document 3Governments of the World

There are many government systems which have existed and currently exist in theworld. How democratic are they? Here's a checklist.

REPUBLIC

usually the head of state is a president andthere are elected houses of parliament. Someexamples are Switzerland, United States ofAmerica, India, Ireland, Greece and Israel.However, some republics are not democraticand may be led by an unelected head ofstate and not have either electedparliaments or an independent legal system.

ABSOLUTE MONARCHYas in England prior to the Puritan revolutionof 1640, France prior to the 1789 revolution, orRussia prior to 1917, japan to 1945.

CONSTITUTIONAL MONARCHYwhere the monarch is hereditary, and notelected, but has its powers limited by aconstitution and/or constitutionalconventions. E.g. Great Britain, Australia,Spain, Norway and Sweden.

DICTATORSHIPwhere the majority of people do not havea say in who governs and where power isheld by one person or a minority e.g.Paraguay under Alfredo Stroesner, Germanyunder Hitler, Italy under Mussolini and Chileunder General Pinochet.

THEOCRACYwhere the rulers are religious leaders.

PLUTOCRACYwhere political leaders are drawn from thewealthy.

OLIGARCHYwhere the rulers are drawn from a closedgroup. Traditionally this was the aristocracywhose property base was protected byhereditary rights.

GERONTOCRACYwhere the rulers are drawn from theoldest citizens.

COMMUNISMwhere the government is controlled in thename of the working class; a 'dictatorship ofthe proletariat'. The famous historical casesare Russia and China although currentlyChina, North Korea, Cuba and Vietnam arethe only contemporary communist states.

Note: Sometimes governments are notdistinct, but draw elements from two ormore of these forms. For example, anabsolute monarchy may be difficult todistinguish from a military government if themonarch is the military commander of thecountry and uses the army to maintaincontrol. For example, Russia prior to therevolution of 1905. Also North Korea, thoughonce communist is now effectively adictatorship.

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Background document 4Features of Democratic Societies and Governments

the universal right to vote forrepresentatives and leaders;

respect for a majority vote;

accountability of government;

absence of compulsion/repression;

the availability of choice;

redistribution arrangements to ensurethat votes cast in different electorates areof approximately equal value ('One vote,one value');

legal opposition within the system, bothinside and outside parliament;

freedom of speech;

presence of/respect for legal rights (e.g.trial by jury, equality before the law);

sovereignty of the people;

a Constitution;

freedom of movement and assembly;

equality;

freedom of the press;

the rule of law;

payment of members of parliament;

payment of electoral costs;

regular elections;

secret ballot to avoid coercion;

voting systems, such as proportionalrepresentation, which give fullerrecognition of voter intentions; and

accurate electoral rolls.

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45The Governance of Australia - Kit 1

Austram C0110, bubion

This session deals with the document which is thebasis of Australia's public governancetheAustralian Constitution. Since it became law in

1901 it has provided and protected the frameworkand powers for the institutions of publicgovernance (including the monarch and Governor-General), the procedures to be followed by thoseinstitutions and the division of powers in thefederal system. It also details arrangements forfinancial relations between the Commonwealthand States, the formation of new States andalterations to itself by referendum.

Since it became law in 1901it has provided and protected

the framework and powers forthe institutions of public

governance ...and theprocedures to be followed by

those institutions and thedivision of powers in the

federal system.

The Australian Constitution is not the onlygovernment constitution in Australia. Each of the

six States has a constitution of its own, whichprovides a framework for the system ofgovernment of that State. The Northern Territoryand Australian Capital Territory have Self-Government Acts which have the same function.All of these are subject to the AustralianConstitution, and if not consistent with it, theAustralian Constitution will prevail.

There are also many non-government constitutionsin Australia which regulate the operation of simplegroups like baby-sitting clubs and communityorganisations like Parents and Citizens'Associations and sporting clubs. Larger

The aims of thesession:

to consider generally the rules andconstitutions of organisations andcountries;

to introduce the AustralianConstitution and what it covers;

to identify what is not included inthe Constitution;

to consider what you think it shouldcover;

to look at how people can and havebeen involved in making changes tothe Constitution, and

to continue to develop theprocedures and processes of thelearning circle.

incorporated groups usually have more detailedconstitutions or articles of association.

Within this web, all citizens will have encountereda constitution, which they may feel has benefitedor hindered them. The experience of a localconstitution can be relevant to understanding theConstitution of our Commonwealth.

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Suggested activitiesIntroduction

The Australian ConstitutionA bird's-eye-view

3

5

What is not covered in the Constitution? 8

What do you think should be in 10

the preamble to the Constitution?

Indigenous Australians and 12

the Constitution

Is our Constitution democratic?

Do we need changes tothe Constitution?

How can change happen?

End of session

Background document 1Developing Australia's constitutions

Background document 2Democracy and the Constitution

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ResourcesThe Australian Constitution, 1997, with

annotations by Cheryl Saunders, CCF,Melbourne

AEC brochure Constitutional Referendums

AEC information sheet SimplifiedConstitutional Amendment Process

All You Ever Wanted to Know about Australian

Democracy

Round Table (magazine of the Constitutional

Centenary Foundation)Spring 1996, No 1, 1997

(Note: Although not included amongst theresources in the kit, the Parliamentary EducationOffice kit Your Future Your Say (1998) is a good

resource for those groups who wish to extend theirlearning in this area. A video and several folders ofnotes comprise the kit. It may be available fromyour local school or public library or you can buyit for $199.00 plus $10 p&h from EducationalMedia Australia, 7 Martin St, South Melbourne,Victoria, 3205. Unit 1The ConstitutionWhat Is It?includes a detailed simulation which could be thesubject of a separate meetingor more!)

47IT_G-iw=cTna_o_L-Australi-a - Kit as'

The AustrMan ConstiGua m

IntroductionConstitutions are the highest law of anyorganisation or country. They provide the rules toregulate the way people and groups in theorganisation or country can behave. But they arenot just a legal document. They are a formula forsharing power. Constitutions define the roles andresponsibilities of various individuals andinstitutions and the powers they can exercise.

Constitutions are thehighest law of any

organisation or country.They provide the rules to

regulate the way people andgroups in the organisation or

country can behave.

The constitutions of community organisations orclubs are sometimes quite detailed and precise.Those for countries may be more general. There isa range of reasons for this:

they allow for laws to be created by thegovernments they establish;

the constitution of a country is generallyintended to last a long time, and

a constitution needs to be flexible enoughto grow and change as the country growsand develops.

Constitutions are intended to provide thefoundations for a society. They need to be stablelike the foundations of a house. To ensure politicaland social stability constitutions are often quitedifficult to change. However, the world doesn'tstand still, so governments need flexible powers torespond to new challenges and demands.

In a democracy, it is the people and the politiciansthey elect to represent them that have the key roleof deciding how particular issues will beapproached. The constitution provides theframework in which they do this. Also, it setscertain boundaries or limits. If it prescribed thedetail of, say, rates of taxation or the structure ofour social security system, it would take awaymuch of the decision making power from peopleand the governments they elect. But if aconstitution is too general, it can be hard to agreeon what it means. This can lead to endless debateand division. Getting balance between certaintyand stability and the flexibility to accommodatechange is not easy!

Sometimes, even foundations need to be changedto cope with new circumstances. You might add ona room as the family grows, but sometimes, newdemands require a totally new house.

A constitution is a legal documentthe mostimportant in the country, yet it is open tointerpretation and change, although this procedureis complex in Australia. Just as the AustralianConstitution was approved by the citizens of thesix colonies voting in a referendum, its wordingcan only be changed by a referendum of all voters.

Some countries have constitutions that can bechanged by laws enacted by the parliament, butother countries are more restrictive. Great Britaindoes not have a written constitution expressed in a

Constitutions...need to be stable

like the foundationsof a house

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single document, but relies on hundreds ofparliamentary acts (statute law) and conventions(common law) for its governance. The AustralianStates have constitutions which, largely, can beamended by their parliaments, although WesternAustralia, Queensland and South Australia canonly amend those sections of their constitutionsrelating to their governors/heads of state afterapproval by a State referendum.

The Australian Constitution is interpreted by theHigh Court of Australia (see Session 5) and this canmean that through a High Court judgementactions may become legal or illegal because of theinterpretation of the Constitution rather than afterits wording has been changed after a successfulConstitutional referendum. There have been morechanges in interpretation than formal changes tothe Australian Constitution.

This session looks at a variety of issues associatedwith Australia's Constitutionwhat it covers,what you think it should cover and how peoplehave been involved in making changes to it. Youwon't be able to get through all of the issues in onesession, so focus on those things your group ismost interested in.

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Activity:List on a black/white board orbutcher's paper some of theorganisations of which you aremembers (e.g. sports clubs,professional organisations, unions,political parties and communityassociations).

Do you know if they haveconstitutions? Have you read them?What kinds of things do they cover?Have you ever been involved indebates about the meaning of aparticular part of an organisation'sconstitution? Have you ever beeninvolved in discussions aboutchanging an organisation'sconstitution? Has a constitution beenused to resolve a crisis in yourorganisation? Do organisations needconstitutions?

Optional extraactivity:Between now and the next session,arrange a meeting with an office holderin one of the organisations of whichyou are a member. Look at theorganisation's constitution. Talk withthem about whether they haveexperienced any problems with theconstitution. Has it become outdated?How can it be changed? Ask themabout ways in which they have used therules in the constitution to help themachieve particular objectives, such assetting a new direction for theorganisation, or getting control of a keycommittee. Alternatively, has it stoppednew initiatives in the organisation?

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Australian Comb bull°

The Australian Constitutiona bird's-eye-view

The Australian Constitution embodied four great

constitutional principles: representative

government, federalism, the separation of powers,

and responsible government under the Crown.

Much of the uncertainty surrounding federal

executive power in Australia stems from the

contradictions inherent in the simultaneous

operation of the British and American principles.

George Winterton (1983) Parliament, the Executiveand the Governor-General p.l.

The Australian Constitution is best understood as

an election policy speech. It is the product of a

political compromise and was drafted with the

electorate in mind. Like a policy speech, it tries to

reconcile the irreconcilable. Like a policy speech it

is vague and contradicts itself. Like a policy speech

it provides 'answers' which, on inspection, are not

answers at all, but simple deferrals of the problem

until after the election, (or, in this case, after the

federation referendums).

Richard Lucy (1993) The Australian Form ofGovernment, p. 270.

The proclamation of the Australian Constitution on1 January 1901 was the culmination of a federationmovement that took two decades to achieve itsgoal. Such was the uneven progress of thismovement and the rivalry between the colonies inthat time that Alfred Deakin, a leading Victorianfederationist claimed that federation has beenfinally achieved only by 'a series of miracles'.Details of this fascinating Australian story are inthe Background document 1 (p 18).

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The Commonwealth of Australia Constitution Actcomprises a preamble, eight covering clauses, theAustralian (Commonwealth) Constitution of 128sections and a schedule which details the oath oraffirmation that members of the CommonwealthParliament are required to take by section 42.These sections are divided into eight chapters:

Chapter I

Chapter H

Chapter III

Chapter IV

Chapter V

Chapter VI

Chapter VII

Chapter VIII

The Parliament

The Executive Government

The Judicature

Finance and Trade

The States

New States

Miscellaneous

Alteration of the Constitution

(Note: Take this opportunity to look at theAustralian Constitution as a complete document.There is a copy included in the kit, but it is alsoavailable from bookshops, your local libraryand many web sites includinghttp: / /www.nla.gov.au/oz/gov/)

Our Constitution serves two main purposes.It established a national Australian Governmentwhere none existed before. Also, it established afederal system with powers shared between thenew Commonwealth Government and the StateGovernments, and determined how they wouldrelate to one another.

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The AustralianConstitution

The pre-existing elementsThe Constitution recognised the six Australiancolonies as they were in 1900, including theirconstitutions, laws and governmentalarrangements (except where expressly changedby the Constitution). From 1901 they becameknown as States and the AustralianConstitution guaranteed their continuingexistence.

Continuing recognition of the British monarch.

The new elementsA Commonwealth Parliament of two houseswith specific powers and functions (Sections 51and 52 set out the key powers).

A federal Executive Government, to besupported by federal government departments.

A federal court system, with the High Court atthe top with the power to interpret theConstitution.

The establishment of the position of Governor-General as the Queen's representative in theCommonwealth of Australia.

How they fit together...The Constitution:

regulates relations between the Commonwealthand the States. For example, it provides for freetrade between the States, and gives theCommonwealth sole responsibility for customsand excise and provides for financial relationsbetween the Commonwealth and the States.

...and how the Constitution can be changed.

The Constitution specifies how it can beamended and how new States can be createdand admitted. Section 128 says that theConstitution can only be changed by areferendum of all electors in all States andTerritories at which an overall majority ofelectors and a majority of electors in a majority

of states must support the proposal which hasalready passed the Commonwealth Parliament.

Key playersApart from establishing how the States andCommonwealth would share power betweenthem, the Constitution also sets out the roles of thekey individuals and institutions that make up theCommonwealth government.

a Governor-General to be appointed by theQueen (Queen Victoria in 1901) and her heirsand successors who 'may exercise in theCommonwealth during the Queen's pleasure,but subject to this Constitution, such powersand functions of the Queen as Her Majesty maybe pleased to assign to him' (Section 2).However each State had and would keep itsown Governor; and

a Federal Executive Council which would bethe executive government and would compriseMinisters of State chosen by the Governor-General. (In effect, the Prime Minister andcabinet, although these terms do not appear inthe Constitution).

Key institutionsa Parliament made up of two parts or 'houses';

a House of Representatives, whose size wouldbe determined by population;

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a Senate, half the size of the lower house, withequal numbers of members from each State andhaving power to review the legislation of theother ('lower') house;

the High Court would be the senior Australiancourt with regard to constitutional matters butappeals to the British Privy Council about othermatters were possible until 1986; and

existing Supreme Courts in each State wouldcontinue to interpret and enforce State laws.

The rights of Australiancitizens

the right to vote in elections of members of bothHouses of Commonwealth Parliament on thesame basis as voting rights for the lower housesof each State, although these may not be uniform;

the right to stand for Parliament;

Section 117 prohibits the Parliament of a Statefrom discriminating against non-residents ofthat State;

British subjects would be citizens of the newCommonwealth of Australia;

the right to religious freedom;

trial by jury in serious criminal cases; and

acquisition of property by the Commonwealthmust be 'on just terms'.

Activity:How does all this fit together?! Look atthe booklet All You Wanted to KnowAbout Australian Democracy,Australian Electoral Commission,pages 3-4.

Are the separate parts of the machineryof government clear? (Maybe youwould like to sketch this for yourself!).

Would you make any changes?

What image does the cartoon convey?

Should it include the influences ofgovernment not mentioned in theConstitutionlike the media, pressuregroups and foreign governments andcorporations?

Do you think such a system doesproduce democratic government for thenation?

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What is not covered inthe Constitution?

The Australian Constitution does not address itselfat all to some matters which are part of ourgovernance. Sometimes this was because itsfounding fathers saw tradition and convention asdetermining these things. Also, because theConstitution was a compromise betweencompeting colonies and their politicians, theymade only vague and general references to thesubjects they could not agree upon. However,some items should perhaps have more specifictreatment, especially as conventions and traditionsmay change. Also the fact that the Constitution isnearly 100 years old has meant that there havebeen new developments which were not foreseenprior to 1901. Finally there were many transitionprovisions which were superseded once the newCommonwealth Parliament had made laws to dealwith these areas.

Because the conventions of the Westminster systemwere assumed knowledge amongst theConstitution makers, the Australian Constitutiondoes not mention the Prime Minister or Cabinet.Edmund Barton commented that to write theseconventions into the Constitution would implythat the Australians did not know how the 'Motherof Parliaments' in Westminster operated!

Also the fundamental doctrine of the 'separation ofpowers', which is central to the Constitution of theUnited States of America, is not specifically

mentioned in the Australian Constitution. However,the separation of the legislature, executive andjudiciary into three separate chapters of theConstitution shows that it is an importantconvention in our system. However these areas arenot completely separate as the Executive is drawnfrom the legislature (see Session 4) and the Executive

determines the appointment of High Court justices

(see Session 5).

Also, the third sphere of government, localgovernment, is not mentioned in the Constitution.It is argued that this is a deficiency as almost all ofAustralia is now incorporated into localgovernment areas which are governed bydemocratically elected representatives. These localcouncils receive funds from both Commonwealthand State Governments as well as raising revenueby land rates and service charges. Attempts toinclude the recognition of local government in theAustralian Constitution by referendum in 1974 and1988 both failed.

Discussion:Should the Australian Constitutioninclude references to the PrimeMinister and Cabinet, some or all ofthe conventions mentioned above andlocal government?

Do you remember the debate on theproposals to amend the Constitution toinclude local government? Can youexplain it to those who do not?

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Case study:

The Australian Constitution and theDeclaration of War

Australia's periods of greatest social and politicalturmoil, apart from the Great Depression of the1930s, were in two warsthe First World War andthe Vietnam War. During the First World War, twobitterly fought plebiscites were conducted aboutconscription of men for overseas service, althoughconscription for domestic service had existed since1911. During the Vietnam War there was greatdivision in Australian society about support forthe war effort, which led to the biggestdemonstrations in Australian history. YetAustralia was involved in both of these wars as aresult of executive decisions in Cabinet followedby an announcement by the Prime Minister inParliament.

In 1939 the Prime Minister, Robert Menziesbroadcast to Australians that 'It is my melancholyduty to inform you that as Great Britain is at warwith Germany, consequently Australia is also atwar'. In 1965 the same Prime Minister announcedto the House of Representatives that Australiawould commit combat troops to the Vietnam Warand both Prime Ministers Hawke and Howardcommitted troops to war against Iraq on the basisof a Cabinet decision.

Parliament was not regarded by the Constitutionframers as the place for discussion of thesematters and the Australian Constitution has noreference at all to the declaration of war. This wasbecause the declaration of war was viewed as oneof the historical prerogative powers of the Crownwhich, under the Westminster system, haddevolved to the executive, embodied no longer bythe Crown but by the Prime Minister.

The Australian Constitution does, however, coversome defence and military issues:

Section 51 which specifies Parliament's powerto make laws for 'the peace, order, and goodgovernment of the Commonwealth', refers, inSection (vi) to the Commonwealth's power to

pass laws for the 'naval and military defence ofthe Commonwealth and of the several States,and the control of the forces to execute andmaintain the laws of the Commonwealth';

Section 51 (xxxii) empowers the Parliament tomake laws for 'The control of railways withrespect to transport for the naval and militarypurposes of the Commonwealth';

Section 114 disallows any States, without theconsent of the Parliament of theCommonwealth to 'raise or maintain any navalor military force';

Section 119 says the 'Commonwealth shallprotect every State against invasion and, on theapplication of the Executive Government of theState, against domestic violence'; and

Section 68 says the 'command-in-chief of thenaval and military forces of theCommonwealth is vested in the Governor-General as the Queen's representative'.

Discussion:The role of the military and the powerto command it, raises some interestingissues.

Should the power to declare war becovered in the Constitution?

Who should have the power to makethat decision?

Under what circumstances?

Should Parliament be involved?

Have you noticed other areas ofCommonwealth Government powerwhich are not included in theConstitution?

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What do you think should beincluded in the preamble tothe Constitution?

If a constitution provides the foundations of acountry, what should it contain in its preamble?This introduction to a constitution has been calledthe 'lymph gland' of a constitution. Should it saysomething about a country's beliefs about itself?Should it include the underlying principles towhich it is committed? These may berepresentative democracy, free speech, equalitybetween men and women or between differentraces and cultures, and the rights of indigenousinhabitants. What would be the benefits of this?What would be the disadvantages?

Another case study of constitution writing is thatof the Northern Territory of Australia. InMarch-April 1998, a Statehood Convention washeld in Darwin to consider the move from thestatus of Territory to State for this area. Theconstitutional questions, including the preamble,proposals and debates are all available from theNorthern Territory Government's URLhttp:/ /www.nt.gov.au.

Country case study:

FijiIn 1996 the Fiji Constitution ReviewCommission considered these questions.Their report identified seven reasons forwriting a new Constitution for the Republicof Fiji:

to make a fresh start;

to set out the conditions on which thepeople agree to be governed;

to control the actions of governments;

to guarantee the rights of individualsand groups;

to promote important values;

to act as an enduring basis forgovernment; and

to foster shared loyalty to the countryand a sense of common purpose.

(From The Fiji Islands: Towards a United Future. Report ofthe Fiji Constitution Review Commission, 1996,

Parliament of Fiji,Parliamentary Paper No. 34, pp. 24-28)

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Country case study:

South AfricaAnother example of a new constitution isthat of the Republic of South Africa whichwas proclaimed on February 4 1997. Itspreamble reads:

WE, the people of South Africa,

recognise the injustices of our past;

honour those who have suffered forjustice and freedom in our land;

respect those who have worked to buildand develop our country, and

believe that South Africa belongs to allwho live in it, united in our diversity.

We therefore, through our freely electedrepresentatives, adopt this Constitution asthe supreme law of the Republic so as to:

heal the divisions of the past andestablish a society based on democraticvalues, social justice and fundamentalhuman rights;

lay the foundations for a democratic andopen society in which government isbased on the will of the people andevery citizen is equally protected by thelaw;

improve the quality of life of all citizensand free the potential of each person,and

build a united and democratic SouthAfrica able to take its rightful place as asovereign state in the family of nations.

May God protect our people.

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The Preamble to the Australian Constitutionannounces:

WHEREAS the people of New South Wales, Victoria,

South Australia, Queensland, and Tasmania, humblyrelying on the blessing of Almighty God, haveagreed to unite in one indissoluble FederalCommonwealth under the Crown of the UnitedKingdom of Great Britain and Ireland, and under theConstitution hereby established'.

(Note: Western Australia had not voted in thefederation referendum at this stage, but it did in1900 and as a majority supported the proposal,Western Australia joined the federation as anoriginal State on 1 January 1901).

Activity:Look at the current Preamble to theAustralian Constitution.

Should it be kept, changed orcompletely scrapped in favour of anew Preamble?

If you had the job of writing a newpreamble for the AustralianConstitution, would you want it tosay what it means to be anAustralian? Are there any specificprinciples, ideas or beliefs that youwould include?

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Indigenous Australians andthe Constitution

What is the position of Aboriginal and Torres StraitIslander people in relation to the AustralianConstitution? The two references in the 1901Constitution were in Section 51 (xxvi) and Section127. The former empowered the Commonwealth tolegislate for the 'people of any race, other than theAboriginal race in any State, for whom it deemednecessary to make special laws'. Section 127excluded Indigenous peoples from being countedin the census which was the basis for working outthe number of House of Representative seats eachState would get. Both of these provisions wererepealed after a referendum in 1967, when 92 percent of Australians rejected them. Although thesechanges removed all doubt about the inclusion ofAboriginal and Torres Strait Islander people asAustralian citizens, should there be special,affirmative mentions in the Australian Constitutionto assist Indigenous Australians to meet, as PatDodson has said, their 'yearning to escape thepowerlessness of exclusion and dispossession'?

Father Frank Brennan proposed the followingpreamble to a 1993 conference.

'Whereas the territory of Australia has long been

occupied by Aborigines and Torres Strait Islanders

whose ancestors inhabited Australia for thousands

of years before British settlement:

'And whereas many Aborigines and Torres Strait

Islanders suffered dispossession and dispersal

upon exclusion from their traditional lands by the

authority of the Crown:

'And whereas the people of Australia now include

Aborigines, Torres Strait Islanders, migrants and

refugees from many nations, and their descendants

seeking peace, freedom, equality and good

government for all citizens under the law:

'And whereas the people of Australia drawn from

diverse cultures and races have agreed to live in

one indissoluble Federal Commonwealth under the

Constitution established a century ago and

approved with amendment by the will of the people

of Australia: be it therefore enacted'.

Discussion:Here are some things to consider

What do you think of this proposedpreamble?

Does it, by itself do enough torecognise Indigenous claims torecognition of prior occupation, ofadequate representation andguarantees of human rights?

Should the body of the Constitutionbe amended to include, as JusticeElizabeth Evatt has suggested 'groundrules to meet future aspirations' andallowance for 'room for autonomy inspecific areas, such as customary law'?

Would Indigenous and otherAustralian citizens benefit for theinclusion of a Bill of Rights in theConstitution?

For extra information of this area The Council for

Aboriginal Reconciliation/ConstitutionalCentenary Foundation 1993 report 'The position of

Indigenous people in national Constitutions' , the CCF

publication 'Securing a Bountiful Place for Aborigines

and Torres Strait Islanders in a Modern, Free, and

Tolerant Australia', and the ATSIC Homepage(http://www.atsic.gov.au) would be good startingpoints (see ReferencesIntroductory Session p 12).

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Is our Constitution democratic?Most Australians would claim that Australia is a

democratic society with a democratic government.

Does our Constitution reflect this assessment? Readthrough itespecially chapters Ito HIand matchthis assessment with the provisions of theConstitution. (Note: The annotated version of the

Australian Constitution included in the kit is useful

here as the annotations explain each section).

A handbill examining the Draft of theCommonwealth of Australia Constitution Act,printed in 1900 expected the new Constitution tofurther the democratic cause. It is reproduced

below:

If you need some more ideas have a look atBackground document 2 (p 20).

Discussion:Australia is a representative,parliamentary democracy. How muchis this due to our Constitution?Drawing on the ideas covered in thefirst session, what do you think makesAustralia a democracy? Are thesethings addressed in our Constitution?Should they be? Does it matter?

Is the Federal Constitution Democratic?This Constitution is not only the mostdemocratic of any existing Federal Constitution,whether we compare it with that of Switzerland,Canada, the United States, or Germany, but it isinfinitely more democratic than the Constitutionof any Australian Colony. It contains almostevery democratic principle for which theDemocrats of Australia have been striving forthe last 40 years.

In no less than eight important points it is inadvance of the present Victorian Constitution.

Abolition of plural voting for both Houses.

No property qualification for electors for theSenate.

No property qualification for members ofthe Senate.

Payment of members of the Senate.

Power to dissolve the Senate.

A remedy for deadlocks in the FederalParliament.

All Federal Ministers must sit in the FederalParliament (save for a maximum period ofthree months). In Victoria, not more thanfour Ministers need be Members ofParliament.

Every adult person who has now or whoacquires at any time in the future a vote forthe Assembly in Victoria or any other State,shall thereby have a vote for both Houses ofthe Federal Parliament.

With such political machinery, theDemocrats of South Australia, Victoria andNew South Wales can command majoritiesin both Houses, and secure in the firstFederal Parliament the passage of furtherdemocratic measures.

I. Haase, Printer, 17 Swanston St, Melbourne

(Reprinted from Dermody, K (1997) A Nation at Last AGPS Press, p. 54)

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Do we need changes tothe Constitution?

The Australian Constitution was developed lastcentury in order to federate six separate Britishcolonies. It was written at a time when ourpopulation was around four million andoverwhelmingly Anglo-Celtic. Although theConstitution has remained substantiallyunchanged it hasn't stopped Australia fromdeveloping and changing. Australia has passedlegislation designed to prevent discrimination onthe grounds of sex, race or disability. It hasundertaken a huge immigration programme whichhas lead to a multicultural country. It hasexpanded the quantity and range of its exports andincreasingly integrated into the internationalcommunity. Its population has grown to 18 millionand has been involved in two world wars. TheConstitution, although not specifically mentioningthese things, has not prevented them. Somecommentators would say these things have beenachieved in spite of the Constitution.

Geoffrey Robertson, acclaimed human rightsbarrister and constitutional expert (and host of theABC's series of Hypotheticals) says the AustralianConstitution 'is really one of the world's worst.What worked in 1900 doesn't look sensible in2000'. He wants change.

On this subject, the Rt Hon Gough Whit lam,lawyer and Labor Prime Minister from 1972 to1975 when he was dismissed by the Governor-General Sir John Kerr after supply had been

delayed by the Senate, has said:

We must be less concerned now with the obstacles

which the Constitution places in the way of a

reformist government and more concerned with its

inadequacy as a guardian of fundamental liberties

and accepted parliamentary practices. It is true

that the Constitution still presents obstacles to

any reforming government; it is, after all, basically

and self-evidently a conservative document, and as

a general principle the Labor Party would support

any amendments which augmented the federal

Government's powers.

But that is no longer the over-riding priority.

We know from Labor's three years in office that

in framing its legislative program a Federal

government can draw more widely on

constitutional powers than governments have

done in the past. Constitutional reform for

Australian socialists has now other objectives:

first, to entrench democratic safeguards in the

electoral system and thereby promote the cause of

liberty and justice; and secondly, to free Australia

from the last relics of colonialism and enhance her

status as a free and independent state.

EC Whitlam, 1997, On Australia's Constitution,Widescope International Publishers, Sydney

Others oppose any changes.

Mr Chairman and delegates, the question is:

should Australia become a republic? The answer is

an unequivocal and resolute no. As a first-

generation native-born Australian, whose family

came from an non-English speaking background in

the late 1920s, I am grateful that my parents and

grandparents were able to find in this country the

peace and happiness that was denied to them in

the land of their birth because of their religion.

They turned their backs on a republic, and they

chose the safety and security of this constitutional

monarchy. I am not about to betray their memory.

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We are told that we lack an Australian head of

state, that we must get rid of the Governor-

General and replace him with a president. But

then we are told that the president would have

exactly the same powers and exactly the same

duties as the Governor-General has nownothing

would be added and nothing would be subtracted.

One Australian would replace another Australian

and do exactly the same job. All that would be

changed would be the title on the letter-head.

It is time the republicans came clean. We have heard

a great deal about the various types of republics we

could have but not a single, credible reason why we

should choose to have any one of them. The truth is

that we are an independent nation and we have an

Australian as a our head of state. There is no case

for Australia to become a republic.

Sir David Smith, speaking at the ConstitutionalConvention, Old Parliament House, Canberra,

2 February 1998. He had read the proclamation todissolve the Commonwealth Parliament on the steps

of the same building on 11 November 1975 assecretary to the Governor-General

Discussion:Are there reasons to change ourConstitution? What sort of changeswould you like to see?

Do you think there is an argument forre-writing the Constitution in plainEnglish, even if its provisions are notchanged?

Activity:Brainstorm the things you wish to seekept, deleted, changed or added to theConstitution. A scribe could make afour-column chart on white/blackboardor butcher's paper and write down thepoints as the group suggests them.Don't stop to discuss the points, justget them down.

When you have made your lists, talkabout your ideas and whether there arecommon themes linking them together.What does your AustralianConstitution look like? Does it differfrom the existing Constitution?

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How can change happen?Changing the Australian Constitution is not an easyprocess. This reflects the difficulties of bringing

together the six colonies into a federation. Thedrafters of our Constitution didn't want theirarrangements for balancing the powers between the

Commonwealth and the States to beeasily overturned. The small

colonies wanted to protect theirinterests against the morepopulous States and the newCommonwealth Government.They chose to incorporate the

Swiss practice of referendumwhich has no equivalent in the

British system, whereconstitutional practice can bechanged by an Act of Parliament.However, it could be argued that

as constitutional change can onlybe made after a majority vote, it is

highly democratic.

Section 128, Alteration of the Constitution, is the

third longest section in all of the Constitution. Itsets out the procedure for amending of thewording of the document and therefore Australia'shighest law.

128. This Constitution shall not be altered except

in the following manner:

The proposal for the alteration thereof must be

passed by an absolute majority of each House of

Parliament, and not less than two nor more than

six months after its passage through both Houses

the proposed law shall be submitted in each State

and Territory to the electors qualified to vote for the

election of members of the House of Representatives.

But if either House passes any such proposed law

by an absolute majority, and the other house

rejects or fails to pass it...the Governor-General

may submit the proposed law...to the electors in

each State and Territory...

And if in a majority of the States a majority of

electors voting approve the proposed law, and i f a

majority of all the electors voting also approve the

proposed law, it shall be presented to the

Governor-General for the Queen's assent.

No alteration...effecting any one State...shall

become law unless the majority of the electors

voting in that State approve the proposed law.

The first constitutional amendment referendum,relating to Senate elections, was held in 1906 andit was carried in all states with82.65 per cent of voters supportingthe amendment. This was the greatest support forany referendum apart from the 1967 referendumregarding the status of Aborigines. Most referendahave failed and those of 1988 received only about a35 per cent yes vote. Referenda have been heldregularly from 1906 but of the 42 referenda forconstitutional change only eight have beensuccessful. The Constitutional Referendums brochureand Australian Democracy Magazine in the kit give a

complete list.

Factors involved in the failure of so manyreferenda have been:

the difficulty of achieving an overall majority ofelectors and a majority of States;

concern about preserving States'; rights againstthe central government;

the party political lines along which referendahave generally been fought, has ensured thatthere is always significant opposition;

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the often complicated nature of the proposals towhich electors vote 'no' out of suspicion; and

the lack of clear and detailed impartialinformation about the question because theofficial information given to voters onreferendum questions is in the form of a briefpartisan 'yes' and 'no' case which tends topolarise community debate.

Discussion:Try to recall referenda you have votedin. Were they successful or did theyfail? What did you think at the time?Why have some referenda beensuccessful and others failed? Wouldthere be advantages to making ourConstitution easier to change?

End of SessionAt the end of the second session the group shouldbe more comfortable with the learning circleprocess of co-operative learning.

The following are possible tasks:

discuss whether any solutions to problems inSession One worked in this session;

reflect on what has been achieved;

are there other constitutional questions to beconsidered?

is it time to plan for a visit from a speaker(e.g. Member of Parliament) or an excursion?

what details have to be decided for the nextmeeting?

check that everyone is getting to use theresource material from the kit; and

distribute photocopies of Session Three

discussion notes.

Next session:The Legislature

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Background document 1Developing Australia's Constitutions

Each of our Australian States and theCommonwealth of Australia haveConstitutions. The constitutionalarrangements for the Australian CapitalTerritory and Northern Territory are includedin their Self Government Acts.

New South Wales has the earliestConstitution (1842), which was later revisedin the colony and authorised by the Britishauthorities in 1856 under the British Actrelating to self government for theAustralian colonies of 1851. This firstconstitution established a Legislative Councilwith members who were nominated by thegovernor and elected on a restrictedfranchise to represent the different interestsin the colony. In the debate surrounding thedevelopment of the 1856 NSW Constitution,W.C. Wentworth had argued for anominated Upper House as he had 'no wishto sow the seeds of a future democracy'. Theother colonies, apart from Western Australia,gained constitutions by the same processsoon afterwards, and they were greeted bythe white, male-dominated colonial societiesof the day as democratic and progressive.

Australian ColoniesCommencement of self-Government:

Colony DateNew South Wales 1855

Victoria 1855

Queensland 1859

Tasmania 1856

South Australia 1856

Western Australia 1890

Source: R.D. Lumb (1991)The Constitutions of the Australian States,University of Queensland Press, St Lucia.

Many argued that the radical reformprogramme promoted in England by theChartists from the 1830s (and forinvolvement in which many men weretransported as convicts to the Australiancolonies) had been achieved in theantipodes. They were secret ballot and malefranchise, but payment of members ofParliament took some time to achieve andannual parliaments never became a practice inAustralia. It was also felt that the forcefulaction of the diggers on the Australiangoldfields, but especially at Ballarat where theEureka Stockade was erected and bloodshedtook place, had helped achieve theseconcessions from reluctant and autocraticcolonial governors and the imperial, Britishauthorities.

In contrast, the Constitution of theCommonwealth of Australia was not born ofsocial turmoil and domestic bloodshed,although the shearing and maritime strikes,the birth of the Labor party and bankfailures and depression of the early 1890s didusher in an eventful decade in Australia'shistory. The 1890s closed with the Australiancolonies all sending contingents to the BoerWar in South Africa, so the federation of theAustralia was achieved while Australianswere at war.

The Constitution of the Commonwealth ofAustralia was developed to overcome theproblems of six independent and growingcolonies co-existing in one continent and awish to achieve a safe and prosperousnation. It aimed to consolidate the politicalrights which were guaranteed in the colonialConstitutions rather than extend them.

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ackgmund document 1.The exception to this was the extension ofthe franchise to all Australia women, for onlywomen in South Australia and WesternAustralia had been able to vote beforeFederation was achieved on 1 January 1901.

The Australian Constitution was achievedafter the long process of a Colonial Premiers'conference in 1883, the formation of aFederal Council in 1885 (to which all coloniesdid not always belong), and a series ofconstitutional conventions from 1890 to1898. Although a complete Constitution wasdrafted by 1891 and finalised on theQueensland government ship, 'Lucinda',while sailing on the Hawkesbury River inNew South Wales over the Easter break.

This convention agreed on five basicprinciples for the national system ofgovernment. The powers, privileges, andrights of the colonies would remain intactwhen they became States, except in the areaswhere they agreed to surrender power to thenew national government, the provision offree trade between the colonies, the powerto levy customs duties (the main tax of theFederal Government), the sharing of therevenue from this tax between the nationaland State Government, and the defence ofAustralia. They also discussed the problemswhich could occur in the function ofParliament. However, the colonial politicianswho had been the sole representatives of theearlier conventions, lost their enthusiasm forFederation after 1891.

There were popular, or 'peoples' conventionsin Corona in 1893 and Bathers in 1896 whichdid not include politicians as delegates. Theplan developed at Corona was accepted bythe Colonial Premiers' meeting in Hobart in1895 and then a final convention was heldin Adelaide, Sydney and Melbourne in1897-8. This consisted of delegates elected

by the voters of each colony and included anumber of non-members of the colonialParliaments. They considered many petitionsand proposals from the wider population asthe federation movement had become awidely discussed topic in the colonies and,the dispersal of the earlier constitutionalmeetings had touched most colonies.

They amended and endorsed the draft of theConstitution which had been prepared in the1890-91 meetings, and agreed in Adelaide,the City of Churches, to the inclusion of thewords 'humbly relying on the blessing ofAlmighty God' followed the opening wordsof the covering clauses of the AustralianConstitution'Whereas the people of NewSouth Wales, Victoria, South Australia,Queensland, and Tasmania have agreed tounite in one indissoluble FederalCommonwealth under the Crown of theUnited Kingdom of Great Britain and Ireland,and under the Constitution herebyestablished'. Western Australians had still notdecided about the entry of their colony intothe Australian Commonwealth, but voted todo so in a referendum held on 31 July 1900.

This plan was submitted to two referenda inall the colonies between 1898 and 1900 andwas eventually passed. The AustralianConstitution was taken by a delegation toGreat Britain where it became Clause 9 ofthe United Kingdom Commonwealth ofAustralia Constitution Act (63 & 64 Vict.) in1900 after the right of appeal to the PrivyCouncil of British subjects in Australia hadbeen insisted upon by the Britishrepresentatives.

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Background document 2Democracy and the Constitution

What seems democratic about theAustralian Constitution?

Members of Parliament are directly electedby the people of the Commonwealth. TheElectoral Act, enacted by the CommonwealthParliament lays down the method ofconducting elections, which include a secretballot (by voluntary voting until 1925,although registration had been compulsorysince 1911, and voting in referenda hadbeen compulsory from 1915) and noproperty qualification for the franchise.[Note: Several State upper houses were stillelected until recently on a restricted malefranchise due to property qualifications.E.g. In Victoria, the 'special franchise' for theLegislative Council was abolished in 1950and adult suffrage substituted, and the samecourse was followed by Western Australia in1964 and by Tasmania in 1968. SouthAustralia abolished its 'special franchise'provisions for the Legislative Council in 1973.The New South Wales Legislative Councilbecame directly elected from 1978. It hadbeen appointed by the Governor until 1933and then elected by both Houses ofParliament from 1934 to 1978.]

Elections would be held frequently andParliament would have to sit at least oncea year, with its term limited to three yearsbefore another election must be called.

Electorates for the House of Representativeshould have equal populations, thusensuring 'one vote, one value'.

Decisions in the Parliament would bedecided by a majority vote (Sections 23and 40).

Members of Parliament would be paid(initially 400 pounds per annum) whichwould make it possible for any adultperson without other income to be amember.

Although not demanded by theConstitution, it was assumed by all thatthe practice of Parliament conducting itsbusiness in an open chamber wouldcontinue. This took place in Melbournefrom 1901 to 1927, and since then inCanberra in the 'Temporary' ParliamentHouse from 1927 to 1988 and since thenin the 'New' Parliament House to whichthe media and public are admitted. Itpublishes a record of its debate inHansard, usually available the next day(and now available on the Internet athttp://www.aph.gov.au).

Can you find any more?

What may not seem democraticabout the Constitution?

Ministers may be appointed, for up tothree months, without being Members ofParliament.

The Head of State is an hereditarymonarch.

The Governor-General is appointed, notelected, either by popular election or bythe Parliament, and is not required to bean Australian under the Constitution.

The less populous states have equalrepresentation in the Senate.

The quorums for the Senate and House ofRepresentatives were set, until Parliament

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BE ckgrouncll document 2determined otherwise, at one-third of themembership of the houses (Sections 22and 39). This followed British rather thanAmerican and European practice where amajority of the house constitutes aquorum (Note: The Senate (Quorum) Act1991 (Cth) Section 3 now sets the quorumat one-quarter and the House ofRepresentatives (Quorum) Act 1989 (Cth)Section 3 sets the quorum at one-fifth ofthe whole number of members).

Although not specified in theConstitution, it is a constitutionalconvention that the proceedings ofParliament are public, but the proceedingsof Cabinet are not.

Referenda are only used for constitutionalamendments rather than to decide otherCommonwealth legislation (as, forexample, in Switzerland). However,although not mentioned in theConstitution, advisory referenda (alsocalled plebiscites) have been held atCommonwealth and State/Territory levelsbut governments are not constitutionallybound by their results. For example,Commonwealth electors voted 'No' tomilitary conscription in 1916 and 1917,electors of Western Australia voted tosecede from the Commonwealth in 1933,electors of Queensland and WesternAustralia have voted in plebiscites ondaylight saving, and Australians choseAdvance Australia Fair in a national pollheld on 21 May 1977.

Section 25 allows that numbers of anyrace of people, disenfranchised in anyState, would not be included incalculating electorates for theCommonwealth Parliament.

The Governor-General, under Section 28of the Constitution, and, in practice, onthe advice and to the advantage of thePrime Minister, may dissolve Parliamentsooner than the full three year term whichis mentioned earlier in this section of theConstitution.

Can you find any more?

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The Governance of Australia - Kit 1

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IntroductionPolitics is concerned with power: how it is

exercised by individuals; how its exercise is

structured in institutional arrangements and

practices; and how the various sets of individuals

and institutions exercising power interrelate with

one another and with the larger subject society

over which they rule.

Brian Galligan (1987) Politics of the High CourtUQP, St Lucia

The establishment of parliaments in medievalEurope and their continuing evolution, particularlyin England and Scotland, provided a central ideaand inspiration for the organisation of government

in Britain and Australia. However, these institutionsarose as opponents to the monarch and by the end ofthe 18th century had wrested effective power fromthem. In this process the sovereignty, which themonarch had originally claimed by divine right,

UK Parliament

Parliament

LowerHouse

StatutoryBodies

People

Constitution

Crown

PM

Cabinet

Ministry

MinisterialDepartments

Executive

UpperHouse

Judiciary

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became the preserve of the Prime Minister,

supported by his Cabinet. Where does this leaveParliament? The Australian Constitution empowersit to 'make laws for the peace, order, and goodgovernment of the Commonwealth.' How able is it

to carry out this constitutional imperative?

Is it the central forum of public governance that itspublic role promotes? Is it a rubber stamp for theexecutive? Is it powerful, or subservient to thePrime Minister and the dominant political party orcoalition? Is it playing an effective role within thecurrent constitutional arrangements, or is there aneed to reform Parliament and the way it iselected? Do you feel effectively represented inParliament? What do you want your Parliamentand parliamentary members to do?

This session encourages you to explore the area ofgovernance that everyone has an opinion aboutParliament and politicians.

Suggested activitiesPerceptions of Parliament

Reform of the Parliament and theelectoral system

The House of Representativesparliamentary terms

Double dissolutions and joint sittings

Background document 1Extract from Parliament of AustraliaJoint Standing Committee onElectoral Matters Inquiry reportThe 1996 Federal Election

Background document 2Sun-Herald poll 1997

Background document 3The Commonwealth Budget 1995-96

ResourcesAustralian Constitution Ch I

Australian Democracy Magazine

Electoral Systems of Australia's Parliamentsand Local Governments

Electoral Pocket Book

All You Ever Wanted to Know about Australian

Democracy...

4 Powerful Choice (video)

6 Making Laws. Legal Studies Brief

Behind the Scenes. The AEC's 1996 Federal

19

20

21

8 Election report

PNN Newsradio and television Commonwealth

10 Parliamentary broadcast schedule

Indigenous representation in Parliament 12

The Crown and Parliament 14

The Senatethe States' House or'unrepresentative swill'?

15

The contemporary role of the Senate 16

The Senate and money bills

End of session

17

PreparationIf you feel you need to revise the basics of theAustralian parliamentary system have a look at theresources listed above and read them before thesession. The Australian Democracy Magazine and the

All You Ever Wanted to Know...booklet include the

basics.

18 Also, look at Chapter One of the AustralianConstitution. It is the Chapter on the Parliament

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(both House of Representative and the Senate) butdoes not go into many details of parliamentaryprocedure and practice. The video Powerful Choice

examines the role of some members of Parliamentand parliamentary procedure. You may wish towatch it as a group.

Finally, check to see if Parliament is mentioned inthe media. (It may not be mentioned if parliamentis not sitting at the time.) What issues are beingreported? What parliamentary events do youremember being featured in the media recently?

For more information on the CommonwealthParliament check its web sitehttp://www.aph.gov.au. State and territoryparliaments have their own web sites.

Pre-session activity:Use the resource material The ElectoralHandbook and Behind the Scenes to findout which House of Representativeelectorate you vote in. Who are yourmembers and senators? Which politicalparties are they from? Did you vote forthem? Do you think they should havewon their seats? Have you met them?Do you know how to contact yourparliamentary representatives? Have youdone so? With what results? Do youthink the voting system is sound andfair (democratic)? Do you think you arewell represented?

Researching and thinking about thesequestions before the session will giveyou plenty to talk about when yourgroup gets together.

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Perceptions of ParliamentParliament and the election of members to it arethe most public elements of Australian governance.Some would say that election day is the only dayof democracy in the whole three-year term ofgovernments because it is the only day in which allthe people are directly involved. Anothercommentator sees Parliament as '...a symbol of acontinuing democratic process that operates at alltimes, not only during election campaigns'.

The Parliament is the legislative branch ofgovernment; it makes legislation. It also providesthe personnel for the Ministry and the Opposition.It deals with things dear to the hearts of mostvotersthe law and money. The Budget session isthe most popular session of the Parliament andpublic interest also heightens when legislation tointroduce controversial new laws is debated. (SeeBackground document 3, p 21)

What are some ofParliament'scharacteristics?

Adversarial characterBecause of the presence of the opposition andminor parties, the broadcasting of its proceedingsand other media attention, it provides a forumwhere political conflict is most obvious. QuestionTime in the House of Representatives is the essenceof this conflict and most scenes of Parliament fortelevision news and current affairs are of Question

Time. The traditional privileges ofparliamentarians to be immune from the law forstatements made in Parliament which wouldotherwise be libellous and defaming add an extralevel of interest.

Many citizens deplore this strongly adversarialcharacter of parliamentary proceedings. They claimtoo much time is spent attacking other members andsenators, and the past records of parties in power;and not enough time is spent in thoughtful and openconsideration of lessons from the past, and options

for the future. Some citizens have experiences ofwartime government based on national unity inBritain, and wonder why we cannot always choosethe best of all our representatives, regardless ofparty, to lead the nation.

The Parliament isthe legislative branch

of government; it makeslegislation...It deals withthings dear to the heartsof most votersthe law

and money.

The response is likely to be that such ideas areromantic nonsense. There are real differences ofinterests at stakeof core values, if no longer ofclass. History too provides a legacy of differencebetween and definition of political parties.Moreover, we are more likely to get a good result ifcompeting policies and programs are tested underfire. Question Time is a bear pit, but this is just the

public tip of the parliamentary iceberg, which doesinclude a huge volume of constructive, cooperativework as well as more private examination oflegislation and performance through committees.

Women in ParliamentSome citizens particularly regret the lack of genderbalance in Parliament. Although the number ofwomen Members and Senators is gradually

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increasing, they are still only 24.55* per cent of theFederal Parliament. The Australian Labor Party,with an affirmative action policy in relation to pre-selection of women candidates, has fewer womenin the present Commonwealth Parliament than theCoalition parties. One view is that increasing theproportion of women in Parliament will produce aless combative, more cooperative parliamentaryprocess, as well as being more democratic. Emily'sList, an organisation to facilitate the election ofLabor women to all parliaments in Australia,supplements the work of the Women's ElectoralLobby and Women's Party in this area.

Need for expertiseOthers fear that parliamentarians are no longeradequately equipped to deal with theextraordinary complexity and speciality of affairsof state; environmental issues such as regulation of'greenhouse gases' and protection of biodiversity;ethical issues such as cloning or euthanasia; legalmatters such as preventing abuse of the Internet,and so on. This leads some to conclude that thereshould be a formal role for chosen specialistswithin the parliamentary system.

A 'rubber stamp'?Some feel that Parliament has become a 'rubberstamp'. The legislature is now the captive of a

disciplined party system, of which the Constitutionmakes no mention. Although legislation has to gothrough an extensive process of first, second andthird readings in both houses, these stages are oftenrushed and cut short by using the guillotine motion.Ultimately governments know that in any division(vote) their majority in the house will deliver asupporting vote, regardless of criticisms of the

measure by the opposition. It is often speculatedthat even backbenchers of the governing party oftenfeel left out of the governing process as their partyleadership, comprising the Cabinet, determines

policy and is not required to consult with them.Thus the Parliament can be regarded as a rubberstamp of the decisions of the executive.

Activity:Spend ten or 15 minutes drawing up a'balance sheet' of the good points andbad points about the structures andprocesses of our parliaments. Youmight like to use a third columninteresting or undecidedand discusswhether they should be listed with thepositive or negative aspects.

Discussion:Do we get the politicians andParliaments we deserve? What do youfeel about the way in which theAustralian Parliament works today?

Do you think it would it make adifference if half of ourparliamentarians were women?If so, why?

Too remote?Some feel that parliaments, and the executivegovernments that control them, have drifted toofar from the democratic deals of 'government ofthe people, for the people, by the people', and thatradical new measures of citizen empowerment areneeded to revitalise our democratic system. Henceproposals for citizen initiated referenda (CIR),arrangements for constituents to recallrepresentatives through recall elections andelectronic democracy have been suggested.

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Reform of the Parliament andelectoral system

A contemporary criticism is the excessivedomination of Parliament (especially the House ofRepresentatives) by the Executive Government (see

Session 5).

Harry Evans, Clerk of the Senate, presenting hisaddress 'Bad King John and the AustralianConstitution (Commemorating the 700thAnniversary of the 1297 issue of Magna Carta)' inthe Senate Department Occasional Lecture 17

October 1997 said:

Perhaps because of our convict origins, when we

started with governors possessing absolute powers,

we do not have a great understanding of the

virtues of limiting governments and putting

safeguards between the state and the citizen. We

tend to think that, provided that governments are

democratically elected, they should be able to do

anything. In short, we do not have a strong

tradition of constitutionalism properly so called.

Our version of the so-called Westminster system

encourages our leaders to think that, once they

have foxed 40 per cent of the electorate at an

election, they have the country by the throat. Our

prime ministers and premiers are averse to being

told that anything is beyond their lawful powers,

and are angered by restraints applied by upper

houses or judges. They frequently behave in ways

that make King John and Charles I seem moderate

by comparison. When they have majorities in both

houses of Parliament they become more like those

monarch's eastern contemporaries.

Others have suggested limiting the term of Prime

Ministers and even members to two terms of office.

Geoffery Bolton has suggested having a group ofappointed members who would bring special skillsto the Parliament and ministry:

It is often complained that the necessity of fighting

elections, of fashioning an acceptable media image,

of obeying tight party discipline discourages many

well-qualified citizens from entering the public

arena. The remedy for this might be to provide that

in addition to the members elected to the lower

house of parliamenteither State or federalprovision should be made for the nomination of a

number of members equal to up to 10 per cent of

the whole. Such members should hold office for the

life of one parliament, though eligible for

renomination, and should be able to speak and vote

on all matters except motions of no confidence. In

this way people with special competencies could be

appointed to the ministrya successful businessexecutive, for instance, or a respected authority on

women's issues.

(The Australian, 15 October 1997)

In fact this is constitutionally possible. Section 64of the Constitution says 'After the first generalelection no Minister of State shall hold office for alonger period than three months unless he is orbecomes a Senator or a Member of the House ofRepresentatives.' Apart from the technicality thatsuch a person may be re-appointed for furtherperiods of three months without winning a seatand continuing their incumbency of a ministryindefinitely, this provision has not been used, withone exception. When Prime Minister John Gortonresigned his seat in the Senate to seek election toHarold Holt's prior seat in the House ofRepresentatives, Australia had a Prime Ministerwho was not even a member of Parliament! As ithas not been used regularly, maybe this sectionshould be removed from the Constitution.

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Some other suggestions for parliamentary reform:

changing the electoral system so that theParliament sufficiently represents the diverseAustralian society;

establish a more extensive parliamentarycommittee system to examine legislation, withpublic consultation;

abolish members' privileges of expression inparliament;

provide for the representation of Indigenouspeople in reserved seats;

enhance the role of the Senate as a house oflegislative review and citizen consultation;

abolish the Senate to streamline the legislativeprocess;

change the voting system of the lower house toproportional representation;

abolish compulsory voting;

fix terms for the House of Representatives andtherefore fix election dates;

provide for longer terms of Parliament; and

shorten the term of Senators from six years tothe same as that of Members of the House ofRepresentatives.

Two particular areas of possible reformparliamentary terms, and representation ofIndigenous peopleare dealt with in more detail.However, you may wish to discuss some ofthe others.

The case against some of these reforms is that theGovernment needs control of the Parliament to getthrough a lot of legislation required to run anincreasingly complex society, and that any reviewof Commonwealth legislation that is necessary isprovided by the High Court, which ensures thatlegislation is lawful and within the Constitution(see Session 5).

The basic problem of bringing about parliamentaryreform is that it would have to be legislated for bythe Government, which has control of the House,

and they would not want to make it any less easy fora government to control Parliament. The Opposition

as 'a government in waiting' would not necessarilysupport such changes. However, in Australia there is

a long history of parties having a particular view

while in opposition but then failing to implementthat position or view when in government.

Activity/discussion:Do members of the group have othersuggestions for improving theeffectiveness of Parliament?List all your suggestions.

If as a group you had the power tointroduce one reform of Parliament,what would it be?

Optional extraactivities:Contact and arrange to interview a localmember, or a retired member ofParliament. Ask them what reformsthey would most like to be able tomake to ways in which Parliamentworks, and why.

Alternatively, invite them to come andmeet with the group to give their viewson the most positive, and the mostnegative aspects of parliamentaryprocesses.

Consider visiting a parliament, or, as agroup, listening to or watching a livebroadcast or watching a videorecording of Parliament. This willreveal a different situation to a 'soundbite' from question time shown on TV.

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The House of Representativesparliamentary terms

Section 28 of the Constitution simply states that'Every House of Representatives shall continue forthree years from the first meeting of the House,and no longer, but may sooner be dissolved by theGovernor-General.' As the Governor-General isbound by convention to take the advice of hisadvisers in the Federal Executive Council (thePrime Minister and Cabinet) this section givesgreat power to the government to determine themost favourable time for an election.

There have been two main suggestions for reform:

that the maximum term should be increased tofour years (as is the case in some States), orlonger; and

that the term of the House of Representativesshould be fixed, or partly-fixed to allow anelection to only be called in the last months orweeks of a prescribed term.

Four year termsor longerMany observers and participants are critical of

three-year terms of Parliament. It is argued that thefirst year is spent settling in to government after anelection, the second year is spent doing something,

and the last year is spent getting ready to fightanother election. When a government has a slimmajority or weak leadership the period for action iseven further reduced. Yet the principles ofdemocracy suggest that elections should be morerather than less frequent. In the USA, House ofRepresentative members are elected for two-year

terms. In fact, last century the Chartists campaignedin England for annual elections. Ironically, theBritish government has a five year term.

In 1988 Australian voters rejected a referendumproposal to provide for four-year maximum termsfor members of both houses of the CommonwealthParliament.

Some arguments in favour of longer terms:

three years is too short for strong decisionmaking and long-term planning;

the link to half-senate elections could bemaintained by increasing the term of Senatorsto eight years; and

extending the term of the House to four yearswould not prevent the introduction of a fixed orpartly-fixed term.

Some arguments against:

in the interests of democracy, three years is long

enough between elections;

it would be better if Parliaments served theirfull term, rather than extending the limits ofthe term; and

if the term of the House was extended it would betoo difficult to work out what to do with Senate

elections. All options for change to the terms of

Senators make them too weak or too strong.

Discussion:Would we get better government bygiving governments longer orshorter terms?

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Fixed termsUnder Section 28 the maximum term of the Houseof Representatives, and therefore a federalgovernment, is three years. However, as theGovernor-General is advised by the Prime Ministerwhen the House should be dissolved, the termmay be shorter. Convention also allows theGovernor-General to dissolve the House withoutthe Prime Minister's advice if the Prime Ministerhas lost the support of the majority of the House.In that situation the Governor-General would alsowithdraw the Prime Minister's commission.

Arguments in favour of fixed terms:

there is no reason why the Prime Ministershould enjoy the advantage of being able todecide when to call an election;

if any flexibility is needed, it could be providedby leaving the Prime Minister some discretionin the final year of the term;

a fixed term for the House of Representativesmeans that Senate terms could be set at twoterms of the House without risk to theindependence of the Senate;

a fixed three-year term would make amaximum four-year term unnecessary;

fixed terms have already been introduced insome States; and

elections are expensive and should be held asinfrequently as possible.

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Some arguments against:

governments will not dissolve the House earlybecause they fear an electoral backlash; and

governments need the power to adjust thetimings of elections in order to address newdevelopments of national importance.

Discussion:Should parliamentary terms be of fixedduration, depriving the incumbentgovernment of the power to choosewhen to 'go to the people'?

It has been suggested, for example, thatall elections (Federal and State) be heldon the first Saturday of December ineach Olympic Games year.

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Double dissolutions andjoint sittings

The provision for double dissolution to resolvelegislative deadlocks is provided for in Section 57of the Australian Constitution. It was first used in1914 by Prime Minister Joseph Cook, and again in1951, 1974, 1975, 1983 and 1987. Of these only 1974

was followed by a Joint Sitting of Parliament.

Section 57 says:

If the House of Representatives passes any

proposed law, and the Senate rejects or fails to pass

it, or passes it with amendments to which the

House of Representatives will not agree, and if

after an interval of three months the House of

Representatives, in the same or next session, again

passes the proposed law with or without any

amendments which have been made, suggested, or

agreed to by the Senate, and the Senate rejects or

fails to pass it, or passes it with amendments to

which the House of Representatives will not agree,

the Governor-General may dissolve the Senate and

the House of Representatives simultaneously. But

such dissolution shall not take place within six

months before the date of the expiry of the House

of Representatives by effluxion of time.

If after such dissolution the House of Representatives

again passes the proposed law, with or without any

amendments which have been made, suggested, or

agreed to by the Senate, and the Senate rejects or fails

to pass it, or passes it with amendments to which the

House of Representatives will not agree, the

Governor-General may convene a joint sitting of the

members of the Senate and of the House of

Representatives....

The section also explains the details of the jointsitting and that if the contested legislation passesthe joint sitting, then it '...shall be presented to theGovernor-General for the Queen's assent.'

This complex section of the Constitution wasdesigned to use an election to resolveconstitutional deadlocks between the twoCommonwealth Houses of Parliament. TheFounding Fathers assumed that such deadlockswould arise over issues between the popular lowerhouse, which would have a majority of membersfrom the populous states of New South Wales andVictoria and the Senate as the 'States' House'which would protect the interests of the lesspopulous states. When democracy is seen to be amatter of numbers, the less populous States feltvulnerable. Ironically both houses became partyhouses soon after federation and legislativedisputes which have lead to double dissolutionshave arisen from the fact that the government ofthe day has not also controlled the Senate.However, deciding to use an election'the voice ofthe people'to resolve such disputes (rather thaninvoking some constitutional or reserve power ofthe Governor-General) is a fundamentallydemocratic solution.

This rule, like all rules, invites people to bend orbreak it. If a government proposes legislation itknows to be unacceptable to a hostile Senate, it canset up a situation whereby it can hope to gain anelectoral advantage by having a doubledissolution, whereby all the seats of both houses ofParliament are declared vacant. In an ordinarygeneral election, which the Prime Minister canadvise at anytime, only half of the Senate seats aredeclared vacant along with all seats in the Houseof Representatives. This provision is a cause foruncertainty in our system of governance and canbe used for party advantage.

77 SessloA

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Some opinions are:

'Decommission the doubledissolution'

There are good reasons for abolishing double

dissolutions [and joint sittings]... There are better

ways of resolving differences between the houses...

Instead if the Government gets returned at the next

election it should be able to pass all the Bills that

were rejected twice by the Senate in the previous

Parliament by a simple majority on the House of

Representatives. Let's face it, every government

since World War II which had a majority in the

House would have a majority in a joint sitting.

So why go through the farce (as we did in 1974).

If double dissolutions were abandoned, all the

trouble over the timing of subsequent elections

would be avoided. The shorter terms would be

avoided. The fringe groups getting a chance in the

Senate would be avoided. Senators would have a

fixed, secure term which would tend to force the

Reps into a simultaneous three-yearly cycle.

The double dissolution is a wasteful... disruptive,

unnecessary mechanism to resolve disputes

between the Houses. Better to give the Senate the

power to block Bills until the end of the term (a

maximum of three years) and if the Government

gets returned at the next ordinary election it

should get its Bills through, despite the Senate and

without a joint sitting.

And while we are at it, we should deprive the

Senate of its power to reject Supply. Together, these

changes would make our parliamentary terms much

more stable.

Crispin HullThe Canberra Times 7 March 1998

'Views on double dissolutions'Over the past few months Crispin Hull has

written several opinion pieces in the Canberra

Times critical of the present double dissolution

arrangements of the Constitution.... Some of his

assessments are correct but beside the point. For

example it is likely that the Howard Government

would be most unlikely to have a Senate majority

if it proceeded to a normal half-Senate election.

He writes, 'An ordinary election presents a

problem for the government. With an ordinary

election only half the Senate retires. It is unlikely

the Government would get a majority in the

Senate'. Very well, but surely Mr Hull should

have told us of the voting percentages at the 1996

Senate election. The Coalition had 44 per cent of

the Senate vote, Labor 36, Democrats 11, Greens

three and Others six. With such a miserable vote

the Coalition never deserved to control the Senate.

Yet every Bill for which it had a mandate was

passed by the Senate. The trouble only arose when

the Government decided to concoct disputes (in

particular the introduction of the Workplace

Relations Amendment Bill 1997) and refused to

accept wholly reasonable Senate amendments to

the Native Titles Amendment Bill 1997.

Finally, Mr Hull correctly describes certain

provisions and then comments, 'These provisions

are quite idiotic and unnecessary'. I beg to differ.

I think the provisions in questions are excellent.

...if the Government is determined not to negotiate

on any of these disputes, who can object to its

decision to call an election where it is likely to win

42 per cent of seats for 42 per cent of votes?

Malcolm MackerrasThe Canberra Times 11 March 1998

Discussion:Do you think the double dissolutionand joint sitting arrangements in theAustralian Constitution should bepreserved, changed or deleted?

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Indigenous representation inParliament

Apart from the issue of recognition in thePreamble to the Australian Constitution of priorIndigenous occupation of Australia, the question ofwhether there should be designated seats in theCommonwealth Parliament for Indigenousrepresentativesthe so-called 'two Nations'modelhas also been raised.

There have been two Indigenous representatives inthe Commonwealth Parliament to date, both in theSenate. The first was Neville Bonner, who servedas a Liberal Party Senator for Queensland from1971 to 1983. The second, Senator Aden Ridgeway(Australian Democrats), has represented NewSouth Wales since 1 July 1999.

The Parliament of New Zealand has had seats setaside for Maori representatives since 1867. Maorirepresentatives have been elected from a separateelectoral roll of Maori people. Since the change toproportional representation in New Zealand in1993, many Maori voters have transferred theirregistration to the general rolls, because minoritiescan now gain representation in Parliament electedby proportional voting.

Consider these opinions:

The inclusion in the [1998 Constitutional]

convention of Aboriginal representatives elected

on an open, non-party and state-wide basis will be

one of its most distinguishing and encouraging

features. But it will also point to the obstacles to

Indigenous candidates winning seats in

Parliament from existing electorates [with existing

electoral systems].

On a rough numerical rule of thumb, there should

be much the same level of Aboriginal

representation as there is from the ACT.

7 9=11-carufmarrceof_Australi a

The Parliament ofNew Zealand has had seats

set aside for Maorirepresentatives since 1867

The territory and the Indigenous community both

number about a quarter of a million people.

Australia-wide, this might produce two members

of Parliament and two senators....

It will be a tragic loss of opportunity if the

convention is not brought to recommend

Aboriginal representation in Parliament. It will be

shameful if this national agenda item is left

entirely to the Indigenous Constitutional

Convention which the Aboriginal and Torres

Strait Islander Commission is to mount

independently in March (19981.

...Aboriginal Australians have a unique right to

representation. Australia as a whole will benefit

from granting that right, and will find it

debilitating domestically, and damaging

internationally, to withhold it much longer.

We remain reluctant and, frankly, prejudiced in

not recognising this entitlement... That could be

made good by bringing Aboriginal Australians

permanently and independently into the national

legislative system. It would be an act of inclusion

and incorporation, not of apartheid.

The Aboriginal communities have inalienable

historical and moral claims to be accorded a status

in some ways superior to the status of other

communities embraced in multicultural Australia.

eaffnitiOkaC2CB cgisla rnme

The Westminster notion of the standing of a prime

minister reflects the situation nicely primusinter pares, or first amongst equals. In other

words they should be accorded the status of a

nation of and within the Australian nation.

Duncan CampbellThe Australian, 21 January 1998

First our Constitution said we could discriminate

on the basis of race (White Australia), then the

Parliament determined that we should not

discriminate (anti-discrimination), then the

constitutional meddlers suggested we must

discriminate in favour of one race (the Hindmarsh

debate), and now the MI gamut of madness comes

to lightAborigines have a 'superior status' to

other Australians [see above article).

Little do you understand, Duncan Campbell, the

quiet anger building in the electorate, with people

despairing at the proposition that one race is

superior to another. 'First amongst equals', indeed.

How about we just leave it at equality?

Gary Johns, Senior Fellow, Institute ofPublic Affairs, The Australian, 23 January 1998

Discussion:The issue of Indigenous representationin Parliament is a complex one as itinvolves social as well as electoralquestions. Do you think Aboriginalsand Torres Strait Islanders should haveguaranteed representation in theCommonwealth Parliament? Shouldthey have a separate Parliament? Is theAboriginal and Torres Strait IslanderCouncil a sufficient representativebody for this group?

If you don't have Aboriginal or TorresStrait Islander people in your learningcircle, maybe you will need to ask oneor more members of the group toexplore the views of Indigenous peopleand their representative organisations,and report back to the group.

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The Crown and ParliamentThe longest chapter of the Australian Constitutiondeals with the Parliament, or legislative branch ofgovernment. Its first section says:

The legislative power of the Commonwealth shall

be vested in a Federal Parliament, which shall

consist of the Queen, a Senate, and a House of

Representatives, and which is herein-after called

'The Parliament,' or 'The Parliament of the

Commonwealth'.

Apart from continuing the confusion of theinterchangeable terms Federal and Commonwealth,

this section indicates by its mere position in theConstitution the importance of both this branch of

government and the traditional Westminster system

concept of the supremacy of Parliament.

The present role of the Crown (exercised by theGovernor-General of Australia) is to:

select the leadership of Parliament by selectingministers of state;

dissolve Parliament when requested to do so bythe Prime Minister and order the issue of writs

for the election;

open new sessions of Parliament (but only byattending a joint sitting in the Senate chamberto satisfy a British parliamentary tradition) andannounce the government's program;

give royal assent to parliamentary bills after they

have passed both Houses of Parliament; and

intervene in situations of constitutional crisisand exercise certain 'reserve powers', notwritten into the Constitution, to resolve thesituation.

All but the last of these duties are outlined in Part Iof Chapter One of the Constitution.

Sections 2-5 deal with the Governor-General. Thelast three sections of Chapter One also deal withthe Crown, as they refer to:

the need for bills which have passed the twoHouses of Parliament to receive royal assentbefore they become law;

the power of the Queen to disallow a law givenassent by the Governor-General up to a yearafter that assent; and

the rule that bills reserved for the Queen'spleasure by the Governor-General shall nothave any force, '...unless and until within twoyears from the day on which it was presentedto the Governor-General for the Queen's assentthe Governor-General makes known, by speechor message to each of the Houses of theParliament, or by proclamation, that it hasreceived the Queen's assent.'

It is argued that having a non-partisan head ofstate who can exercise these functions providesstability to our democracy.

Discussion:What do you see as the advantages ofhaving a monarch and/or his/herrepresentative perform the ceremonialfunctions of government? As most areexercised on the advice of the PrimeMinister, should they be continued bya head of state, whether a constitutionalmonarch or a republican president?

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The Senate: the States' Houseor 'unrepresentative swill'?

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(Trick question: How many members of the Commonwealth Parliament represent each member of your learning circle? Answer: three

or 13a member of the House of Representatives and all the senators from your Territory or State which is one electorate)

Paul Keating's provocative statement of 1994 thatSenators are 'unrepresentative swill' reflects thefact that the membership of the Senate does notreflect the size of the populations of the States,which each have an equal number of senatorscurrently 12. The ACT and Northern Territory havetwo senators each. However, under Section 24 ofthe Constitution a nexus between the number ofHouse of Representative members and senators isestablished. The former must be 'as near aspracticable, twice the number of senators'. Anattempt to break this nexus in a constitutionalreferendum in 1967 was soundly defeated.

In 1901 the Constitution granted each State the right to

elect six senators who would be elected for six years,

with each State being a multiple-member electorate.

The original figure has been increased to 12 senators

for each State.

The Australian Constitution was framed as afederal compact. It was felt that the States neededequal representation in order to protect theirinterests from the new CommonwealthGovernment. In fact a formal vote was taken at the1897 federal convention whether to call the housethe Senate or The States' House. The Senate namewon the majority. The States were formallyinvolved in the process of Senate elections as stategovernors and governments were given formalpowers in the Constitution in Sections 9, 10, 12 and

15. The last section deals with the appointment byState Governments of replacement senatorsasection which became very contentious during theevents of 1975, and which was changed byreferendum in 1977, to ensure that this conventionbecame law.

At the time of Federation, the States with small

populationsTasmania, Western Australia,Queensland and South Australiawere all concernedabout the power of New South Wales and Victoria. If

representation for the Senate was based on

population, as was the House of Representatives, they

believed the representatives of the more populated

states would combine against them. They did not

perceive that state loyalty would soon be replaced by

party loyalty in the new federal system.

The three main criticisms of the Senate are that:

the emergence of united and disciplinedpolitical parties has meant that Senators followparty discipline, not State interests;

the swing of the balance of power from theStates to the Commonwealth over manydecades has made the defence of States'interests irrelevant; and

the Senate is not democratic because electors'votes do not have equal value throughout theCommonwealth. The fact that Tasmania has asmany Senators as New South Wales is seen tobe undemocratic by many.

Discussion:Does the original formula for a 'States'House', with equal number of Senatorsfrom each State still make sense?

Which Senators come from your Stateor Territory. Do you feel equallyrepresented by all of them?

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Contemporary role of the Senate

Since 1981 the Senate has developed a new role.

Although there have been earlier times whengovernments with a majority in the lower house have

not enjoyed a majority in the Senate, the emergence

of continuous representation for smaller parties and

regular election of independents has ensured that

neither major political party can expect to gain a

majority in the Senate. The presence of Democrat,

Nuclear Disarmament Party, Green and Independent

senators has greatly influenced the legislative process

in the Parliament. At the same time, partly to

appease those senators holding the balance of power,

the role of Senate committees, and senators'membership of joint committees has been extended.

This situation has been made possible by thechange to proportional representation as themethod for electing senators. Initially senatorswere elected using the 'first-past-the-post' system.In 1918 this was changed to straight preferentialvoting. For the 1949 elections the Commonwealth

changed to a system involving preferentialproportional voting, similar to the system whichwas in use for the Tasmanian House of Assembly.This system had been advocated by CatherineHelen Spence in the 1890s and many since then asthe most democratic form of electoral system.

This change to the electoral system was introducedby legislation, and, of course, could be changed bylegislation. The current situation has arguments forand against.

In favour it is argued that the review role of theSenate through the election of minor partymembers and independents is an important checkand balance in the Commonwealth Parliament.Proportional representation is central to thisdiversity of composition and should be protected.

On the other hand, the lack of a majority in theSenate often prevents a government implementingits policies. Some argue that the present systemputs too much power in the hands of minor partiesand independents when they hold the balance ofpower in the Senate.

Discussion:On balance, has the parliamentaryprocess and the quality of governmentbenefited, or suffered from the fact thatthe balance of power in the Senate isnow regularly in the hands of minorparties and independents?

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EPIAMELMIDGGrn log, sla[if% CDTIFIDA XVOMED1

The Senate and money billsTraditionally, upper houses have had a role as

'houses of review' of government legislation. Thisallows them to return bills coming from the lower

house for re-consideration and change before they

are sent again to the upper house. But not all

parliamentary systems have an upper house. NewZealand abolished its upper house in 1950;

Queensland abolished its Legislative Council in 1921.

In Australia, unlike most other parliamentaryupper houses, the Senate also has the power toinitiate legislation, except for the appropriation(spending) of government revenue or theimposition of taxation. Under Section 53 of theConstitution, the Senate 'may not amend anyproposed law so as to increase any proposedcharge or burden on the people.' However,although unable to amend revenue legislation,they can reject it and return it to the House ofRepresentatives. If this bill is returned after aninterval of three months to the Senate withoutbeing amended in any way and the Senate againrejects it, then the Government may advise theGovernor-General to simultaneously dissolve theSenate and House of Representativesa doubledissolution. These provisions in Section 57 of theConstitution were designed to break deadlocksbetween the houses which had caused severalserious constitutional crises in pre-federation,colonial parliaments.

Although convention said that the Senate would not

reject or delay appropriation bills, that was whathappened in the constitutional crisis of 1975. This

occurred after another conventionthat of replacingsenators with senators of their own partywastechnically adhered to by the QueenslandGovernment, but only when that State Government

had located an ALP member who was acceptable to

the Queensland Governmentnot one nominatedby the ALP. He was Senator Albert Field.

It was felt by many that the Senate had oversteppedits constitutional role and the conventions whichwere implicit in the Constitution. The Liberal Partyview was that the Senate was within itsconstitutional rights. The Chief Justice of the High

Court at the time, Sir Garfield Barwick, alsosupported this view. One of the eight constitutionalamendment referenda which has passed since 1901

was the one in 1977 that wrote into the Constitutionthat Senate vacancies could only be replaced withmembers of the party of the senator who had

vacated the Senate.

In Australia, unlike mostother parliamentary upper

houses, the Senate also has thepower to initiate legislation,except for the appropriation(spending) of government

revenue or the imposition oftaxation.

In fact, Section 53 of the Constitution is socomplex that in 1994 the House ofRepresentatives Standing Committee on Legaland Constitutional Affairs was asked to reportsolely on its contentious third paragraph. In itsreport of November 1995 the Committeeconcluded that 'The provisions of Section 53 ofthe Constitution were initially a politicalcompromise brought about by the conflictingprinciples of the rights of the people in ademocracy and the rights of the states in afederation.' It recommended that a compact bedrawn up between the Houses of Parliament,using the constitutional power conferred underSection 50, by which they would agree not to

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interrupt the passage of supply bills, whileacknowledging that prior compacts had notalways been successful.

Ironically, the power of the British House of Lordsto reject supply bills was curtailed in 1910 after asimilar constitutional crisis, and the issue wasresolved in Britain. If Federation had been adecade later, then the Australian Constitutionmakers would probably have followed thisdevelopment and limited or completely curtailedthe power of the Senate to reject supply.

Discussion:Has the Senate got too much power?

Should its power to reject money bills(Section 53 of the AustralianConstitution) be removed or limited?

Should it have other powers cut?

Would our democracy benefit if theSenate was completely abolished?

End of SessionAllow time at the end of the session to reflect onhow the group is going and what you want to doin the next session. Some things to deal with are:

details for the next meeting;

whether the group feels their learning circle hasdeveloped a democratic approach to itsmembers and the subject matter;

distribution of Session 4 notes;

discussion about visits, visitors and otheractivities by the group; and

allowing time for individuals to report on theirjournal entries, research and interests.

Next Session:The ExecutiveGovernmentRepresentativeLeaders orElected Dictators?

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Background document 1Extract from Parliament of Australia Joint Standing Committee on

Electoral Matters Inquiry reportThe 1996 Federal Election

Chapter ThreePreferential andCompulsory Voting

Compulsory voting was first introduced inAustralia in 1915 by the government ofQueensland. A person who does not vote ata Federal election is guilty of an offence andmust pay a penalty of $20.00, unless he orshe can provide to the Australian ElectoralCommission (AEC) a reason which must be'valid and sufficient'. Failure to pay thepenalty may lead to court proceedings and afine of up to $50.00 plus court costs.

To date the political parties have conspired touse the law to do what in virtually every otherdemocracy the parties themselves must donamely, maximise voter turnout at elections.However, if Australia is to consider itself amature democracy compulsory voting shouldnow be abolished. The assertion that voting isa 'right' means little if one can be imprisonedfor conscientiously choosing not to exercisethat rightor rather, for conscientiouslyexercising the right not to vote.

Also, controversy was caused during the1996 Victorian State Election by the jailing ofMr Albert Langer. Mr Langer had defied aVictorian Supreme Court injunctionpreventing him from breaching Section 329Aof the Electoral Act. Section 329A makes itan offence to encourage, during the electionperiod, voters to fill in House ofRepresentatives ballot papers other than inaccordance with the full preferential votingmethod set out in Section 240 of the

Electoral Act.

The Langer affair has clearly shown thatSection 329A is an ineffective and heavy-handed provision. Section 329A and relatedprovisions should be repealed, while thewording of Section 240 should be clarified.

Recommendation 12:

That Section 245 of the Electoral Act andSection 45 of the Referendum Act, andrelated provisions providing for compulsoryvoting at federal elections and referenda, berepealed. In the interests of effectivemanagement of the electoral system andmaintaining accurate records of turnout,compulsory enrolment should be retained.

Full document athttp://www.aph.gov.au/house/committee/em/elec/elecrec.htm

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Background document 2Sun-Herald Poll 1997

In a survey conducted for the Sun-Herald newspaper, interviewees were asked 'Do you believethe following have a good or bad influence on Australia today?' The results were as follows:

Good % Bad 0/0

The ABC 85 8

Sports personalities 83 9

Aboriginal culture 75 13

The police 73 19

The church 67 17

TV personalities 66 18

Pop musicians 64 20

Newspapers 53 33

Business leaders 51 33

The judiciary 45 44

Trade unions 41 44

Banks 34 57

Politicians 21 65

Casinos 17 68

87

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Estimated by function

1995-96 Budget

37%Socialsecurity

andwelfare$45.237m 1% Housing,

communityamenities

$ I.426m

1%Recreationandculture

$1.152m

3%Otherpurposes

$4.261m

5%Generalpublic

services$6.802m

15% Health$18.42m

Estimated receipts by source

38% PAYEtax$46.71m

8%Defence$9.992m

8%Publicdebt interest

$10.077m

9% Education$10.703m

13%Generalpurpose

inter-government

transactions

$15.66m

2% Liquor/tobacco

excise$2.71m

2%Othertaxes/fees/fines

$2.021m

3%Customsduty$3.5 lm

3 % Medicarelevy $3.6m

4% Interest/rent/dividends

$5. I87m

14% Companytax $17.14m

1tax $14.16m

6%Otherincome

tax$6.89m

8%Petroleumexcise

$10.31m

10%Non-PAYEtax$12.21

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IThe Governance of Australia - Kit 1

J

(maze Tomo=m V, a

IntroductionMuch of the uncertainty surrounding federal

executive power in Australia stems from the

contradictions inherent in the simultaneous

operation of the British and American principles.

George Winterton (1983) Parliament the Executiveand the Governor-General p.l.

It is the executive which has inherited ultimate

sovereignty along with responsibility, and not the

'democratic' institutions of Parliament.

R.S. Parker (1968) The People and the Constitution

The Executive is the branch of Governmentcharged with the day-to-day running of the affairsof the nation. It is made up of the Governor-General, Prime Minister and other Ministers ofState, and the public servants of governmentdepartments. Their roles are distinct:

Today, the Governor-General plays a largelysymbolic role, because he is bound by theconventions of the Westminster system to act inmost instances on the advice of the PrimeMinister. All Commonwealth legislation andregulations are signed into law by theGovernor-General, who still meets withministers in Executive Council meetings. Theseare not policy making meetings but legalrequirements of the Australian Constitution.The Governor-General also performsceremonial duties like the receipt of diplomaticcredentials and presiding over the opening ofParliament. He also represents the Crown atpublic occasions and in his speeches may ormay not choose to make a comment oncontemporary issues.

The Prime Minister and Ministers of State(some or all of whom are included in theCabinet) is that part of the Executive whichdecides the policies of the government and areoften referred to as the Executive Government.

The public service departments which arecontrolled by their ministers implement thepolicies decided by the Executive Government.Those policies may arise from, or at least beinfluenced by, the departments themselves.They administer tax collection and revenueexpenditure of the government. This is such alarge group that some suggest it should berecognised as a separate branch ofgovernmentthe 'administrative branch' ofgovernment.

Most of the real power ingovernment lies with the

Prime Minister and Cabinet,and many would argue that it

is too great.

Most of the real power in government lies with thePrime Minister and Cabinet, and many wouldargue that it is too great. They point to the excessesof Executive power in Queensland under PremierSir Joh Bjelke-Petersen, in New Zealand underRobert Muldoon (both systems of governmentwhich had abolished their upper houses), inWestern Australia during the 'WA Inc.' period andat a various times at the Commonwealth level.

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Suggested activitiesWestminster or Washminster? 3

The Crown and Executive Government 4

What is Executive power? 6

Responsible government 8

The Prime Minister 9

The Role and the Powers ofthe Cabinet 10

The Role of the Public Service 11

A case study of executive power 13

End of Session 14

Background Document 1

Prime Ministers of Australia since 1901 15

Background Document 2Executive accountability to Parliament

Background Document 3

1995/96 Commonwealth Budget

ResourcesAustralian Constitution Chapter II

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Westminster or Washminster?The terms "responsible government" and"Westminster system" are used interchangeably todescribe one of the basic principles enshrined inthe Australian system of government. The term"Westminster", of course, acknowledgesAustralia's British constitutional heritage. Themodel is the House of Commons which meets inLondon at Westminster. It is the pure model of

responsible government.

However, it is always acknowledged also that theAustralian system is more complicated, primarilybecause Australia is a federal system. The federalsystem stresses division of powers while theWestminster system stresses consolidation ofpowers. In Australia the upper house, the Senate,represents the federal principle built into theparliament.

Some would say that it is insufficient to portraythe Australian system as a complicated variant ofthe Westminster system. Rather, it is argued, therole of the Senate in the constitutional crisis of 1975and the importance of the fact that the Senate isnow invariably controlled by the Oppositionparties means that the Australian system is quitedifferent.

This view has come to call the Australian systemthe Washminster system, building in the notionthat Australia, because of federalism, owes asmuch to Washington, the American capital city, asto Westminster. American federalism, in which theupper house is known as the Senate, was the mainmodel for the Australian constitution. The termWashminster was first coined by Dr. ElaineThompson in 1980.

Furthermore, there is more than just the Senate toWashminster. Its advocates stress also thatresponsible government has been diminished by

the control of parliaments by political parties to theextent that parliaments no longer are able to holdexecutive government responsible as in theclassical theory.

In addition, executive government is restricted bythe constitutional division of powers between thefederal and state governments. And it is confinedby the separation of powers between the executiveand the judiciary, especially the High Court.

Given all these differences between the British andAustralian systems would it not be moreappropriate to label the Australian way of doingthings the Washminster system?

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The Crown and ExecutiveGovernment

Historically, in the British system of government,

the.monarch was the Executive Government.Over many centuries (some would say since theMagna Carta) the powers of the monarch werechallenged and limited by Parliament. Onemonarch, Charles I, was even executed on theauthority of Parliament! This process transferredmany of the traditional powers of the monarch tothe elected Prime Minister and the Cabinetcomprising other elected ministers. These roles andrelationships are complex, particularly as 'theCrown' exists constitutionally as a disembodiedconcept rather than as a person. Hence the oldsaying 'The King is dead, long live the King!'

At the time of Federation in Australia this left thesovereign (and her representative) with twogroups of powersthose exercised on the adviceof the government ministers, and those 'reservepowers' which could be exercised without suchadvice. The second group relies upon the commonlaw of constitutional conventions which are notwritten into the Constitution, and are a source ofdisagreement and confusion. Experts even disagreeon whether it is possible, or desirable, to 'codify'these reserve powers.

Chapter Two of the Australian Constitution, whichoutlines the rules for the executive government,comprises only ten sections. This chapter is verybrief given that this, the largest, branch of

government, is also the most powerful, the mostdifficult to control and least open to scrutiny. It is

the least clear chapter of the AustralianConstitution, and relies heavily on British tradition

and convention. Its first section sets the tone:

Section 61. The Executive power of the

Commonwealth is vested in the Queen and is

exercisable by the Governor-General as the

Queen's representative, and extends to the

execution and maintenance of this Constitution,

and of the laws of the Commonwealth.

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Those 39 words incorporate great constitutionalprinciples and are the distillation of centuries ofconstitutional history. Citizens and High Courtjustices can take comfort from the wording, forSection 6L they would say, recognises that

Parliament, as the law making body of theCommonwealth, is supreme, and that the sovereign

is controlled by the Rule of Law. Traditionalists can

argue that the section is symbolic yet importantbecause it continues the mystery (even secrecy) andconventions of the monarchy, which are importantfor the stability of the political system, for the

Crown embodies the government as a whole.

Traditionalists can argue that[Section 611 is symbolic yet

important because it continuesthe mystery (even secrecy) andconventions of the monarchy,which are important for the

stability of the politicalsystem....

This unity and pervasiveness of the Crown can stillbe found reflected throughout Australian society:oaths for parliamentarians, defence force membersand public servants are sworn to the Crown ratherthan to the people of Australia, government legalcases are prosecuted by the Crown, governmentenquiries are called Royal Commissions, ratherthan Government Commissions, prisoners areeuphemistically referred to as His/Her Majesty'sguests, the use of 'Royal' in the names of manyinstitutions and organisationssuch as the EasterShowand in the designation 'Crown Land'.

Optional extraactivity:The issue of 'codification' of thereserve powers of the Governor-General was much discussed in thecourse of the 1998 ConstitutionalConvention. One of the group mightlike to investigate this issue further,and report back to the group later onwhy codification might be difficult,and why some people oppose thevery idea.

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What is Executive power?Executive power is the power to execute thebusiness of government on the basis ofprerogative powers, or after policies have beenenacted into law by the parliament.

Executive power comes from three sources:

Some executive power is given directly by theConstitution. The power to dissolve bothHouses of Parliament, and to convene a joint

sitting, are examples.

A lot of executive power is created by legislation

passed through the Parliament. CommonwealthActs create executive power as they authorise the

Governor-General or a minister and his public

servants power to do certain things.Parliamentary Acts often leave their detailedexecution to regulations to be decided by the

Executive and there have been many cases whereelected governments have been condemned for

conducting 'government by regulation' whichavoids parliamentary scrutiny. These powers

extend into our everyday lives and involvecollection of income and other taxes, family law,

rates of pay, declarations of states of emergency,

electoral law and many others. For example, in

1995 the Acts of Parliament covered 5626 pages

and the Statutory Rules covered 3893 pages.

The common law, or convention, recognisesthat the Executive government has some otherimportant kinds of executive power. These arederived from the 'prerogative' powers of theCrown. Some of these are familiar, because theyare things that any adult, or 'legal person' cando: make contracts, spend money, or set up acompany, for example. At the other extreme,others are things that only a 'sovereign' or agovernment may do. Controlling foreign policyby making treaties or agreements with othercountries is one example. Declaring war and

making peace are other examples. Theprerogative also comprises important rights andimmunities traditionally enjoyed by themonarch and which now apply to the organs ofgovernment that act on behalf of 'the Crown'.

As the Australian Constitution presently stands, allof these powers can be exercised without anyauthority from Parliament. The term 'prerogative'powers is sometimes used to refer to all Executivepower that can be exercised without parliamentaryauthority. Sometimes it is used to refer to the'sovereign' type of Executive powers alone. Thesepowers are exercised by the Governor-General andthe Prime Minister, often on the advice of the latterto the former.

Executive power is thepower to execute the businessof government on the basis ofprerogative powers, or afterpolicies have been enactedinto law by the parliament.

In 1976, Lord Hailsham, in the BBC's DimblebeyLecture, described the Executive government as'an elective dictatorship'. His description couldapply to any British Commonwealth countrywhich has incorporated the Westminster systeminto its Constitution. What did he mean? TheExecutive Government is drawn from the majorityof the lower house. The preferential voting systemfavours large political parties. When partydiscipline is strong, the Executive effectivelycontrols the lower house so its support can betaken for granted.

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Backbenchersgovernment members outside theministryare 'the pawns in the game'; they givethe Executive Government the numbers it needs todo whatever it wantsat least in the lower house.A landslide electoral victory can therefore createproblems. If there are too many backbencherswithout any meaningful role in the governmentprocess, they are likely to become restless.Conversely, party discipline can be easier when thegovernment's majority is a narrow one.

The proportional voting system used for theAustralian Senate, and for the single chamber ofthe New Zealand Parliament since 1996, has meanta wider cross-section of political parties arerepresented and, as in the ACT LegislativeAssembly, minority governments have becomequite normal. Having to include members fromother parties in the ministry, or at least have thesupport of other parties or independents serves tolimit the power of the executive of a minoritygovernment.

Discussion:Although the Executive formallycomprises the Governor-General andelected representatives who advisehim, it can be seen as a less thandemocratic part of our governance.Do you think this criticism is fair?Can Executive Government be mademore open?

Optional activity:Clubs and societies elect their executiveat annual general meetings. Howaccountable do you think these officeholders should be to the membership ofthe association? Should they be able toget on with 'running the show' orshould they not act without theapproval of a general meeting? Are theexperiences of a headstrong president ofan association you may have knownuseful in understanding the role ofpolitical leaders?

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Responsible governmentSection 64 lays the foundation for responsiblegovernment in the Commonwealth. It does notmention either the Prime Minister or Cabinet,although these are now the most powerfulelements in the Government.

The theory and practice of responsible governmentwhich had developed by the 19th century wasregarded as the high point of constitutionalevolutionthe 'Westminster system'.

The central tenet of this classical view ofresponsible government is that ministers areresponsible for decisions of government, which aretaken in the name of the Crown. Secondly, it meansthat ministers share a collective responsibility forthe conduct of the government through theprinciple of cabinet solidarity. Finally, it means thatministers are responsible for their actions and theactions of their departments to the lower house ofParliament, which may examine their performancein parliamentary debate (especially Question Time)and under certain parliamentary privileges. Inturn, the members of Parliament are elected byvoters to whom they are responsible. Suchresponsibilities are supposed to ensure that poweris not abused or exceeded.

The application of these basic principles ofresponsible government is more complicated in 'bi-cameral' (two Houses) systems of governmentsuch as ours. Sir Richard Barker, representingSouth Australia at the 1897 Convention in Sydney,argued that: 'The essence of federation is theexistence of two houses, if not of actually co-equalpower, at all events of approximately co-equalpower. The essence of responsible government isthe existence of one chamber of predominantpower. Now how are we to reconcile twoirreconcilable propositions?'

The historical model for our Parliament was theBritish systemwith a large House of Commonsand an hereditary, non-democratic, appointedupper housenot elected at all! Yet the AustralianConstitution determined there should be an electedSenate of 36 Senators which would have morepowers than the British House of Lords, and fromwhich Ministers could also be drawn. Manycommentators believe the seeds of the 1975constitutional crisis were sown in 1901 in these

sections of the Australian Constitution.

Although the Senate was created with virtuallyequal powers to the House of Representatives,convention has dictated that the Prime Ministershould not be a member of that chamber, althoughnothing in the Constitution prevents this. WhenJohn Gorton was elected Federal Liberal Partyleader in 1968 (after the disappearance of the PrimeMinister, Harold Holt) he resigned from the Senateafter becoming Prime Minister, to contest Holeslower house seat of Higgins in order to observe thisconvention. At State level only one Premier hasbeen an Upper House member in this centuryHal Colebatch (WA, National Coalition, 1919).

Discussion:Responsible government requires that theExecutive is accountable to Parliamentwhich comprises elected members. Mostmembers of your group are likely to bevoters. (Examine Background document 2'Accountability to Parliament' p 15.)

How accountable is the ExecutiveGovernment (Prime Minister and Cabinet)to the Members of Parliament whorepresent you? Do you feel you caninfluence government decisions throughyour representatives? Does it matter?

97-ali-ce_orAustrialia_-_1(itA

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The Prime MinisterThe potential power of the Prime Minister isimmense. His power flows from a number ofdifferent functions which he exercises. He is at theone time responsible for advising the Governor-General and the Crown, he is the chief minister,he is chairman of the Cabinet and he is the leaderof the political party in government'.

David Solomon, Australia's Government andParliament, 6th ed. 1984, p.45.

As adviser to the Crown he/she:

nominates the person to be appointed asGovernor-General and may recommendhis/her removal.

As adviser to the Governor-General he/she:

advises the Governor-General to effect adissolution (although there have been occasionswhen this advise has not been taken!); and

can recommend the exercise of the prerogativeof pardon.

As chief minister he/she:

chooses his/her ministers, or in the case of theAustralian Labor Party, their portfolios;

can remove ministers;

is supported by his/her department (theDepartment of Prime Minister and Cabinet);

and

appoints or recommends appointment ofambassadors, members of the public service,

and statutory authorities.

As chairman of cabinet he/she:

decides the business of cabinet and its order;

can refer matters to cabinet committees, fullcabinet or leave them in the hands of individualministers.

98

As party leader he/she:

speaks on behalf of his/her party in Parliamentand the community; and

takes responsibility for party policies andelection strategies.

The public image and role of Australian PrimeMinisters has further expanded in recent times as amore American presidential style of politics hasemerged in Australia. Daily media exposure,television debates (with a panel of judges todecided a winner) during election campaignsbetween the Prime Minister and Leader ofOpposition and increasing election expenditure aresome features of these developments. They all givethe Prime Minister a higher profile. The resultingexpectation is that the Prime Minister should beinvolved all areas of government and play a keyrole in solving disputes. His/her leadership mustbe public and constant.

Discussion:Prime Ministers attract more attentionfrom the media than any otherpolitician. Do you think this attentionis warranted?

Australia has had 25 Prime Ministers.Who has been most effective in thisrole? Who has been most democratic?What qualities do we expect in ourprime ministers?

See Background document 1 (p 14) fora list of Prime Ministers of Australia.

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The role and powers ofthe Cabinet

The role of the Cabinet in Australian governmentis also determined by convention, rather than theConstitution. Cabinet may comprise all, or onlysome ministers of state. In the latter case it isreferred to as the 'inner ministry' and the non-Cabinet ministers comprise the 'outer ministry'.

Its operation follows certain conventions:

meetings are secret and records of thosemeetings are not available for 30 years. (Copiesof pre-1969 Cabinet papers are available fromthe National Archives of Australia. Their URL is

http://www.naa.gov.au);

Cabinet decisions are binding on all members(collective responsibility) even though they maypersonally oppose the measure before adecision is made;

the Prime Minister is the chairman andspokesman of Cabinet;

Cabinet exclusively comprises Ministers of Statewho are chosen by the Prime Minister, or in thecase of the Australian Labor Party, the PrimeMinister allocates ministries to those chosen bythe parliamentary caucus as the ministers; and

the media are excluded from Cabinet meetings.

Discussion:Do the Prime Minister and Cabinethave too much power in Australiangovernance?

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lilOmmalm-ed_evrAustralia Kit L Sk-EsITA

The Role of the Public ServiceThe Westminster system encompasses the conceptof a non-political, career public service which canoffer specialist advice based on long-termexperience and proven merit to any government.However many people see bureaucrats as self-serving, unadventurous in their advice togovernments and socially conservative people whorejoice in their anonymous exercise of power evenif it is over routine administrative matters. Thepopular BBC television series 'Yes Minister' tapped

into this perspective. Conversations between thefictional Minister Jim Hacker and his fictionalpermanent head, Sir Humphrey Appleby, havebeen viewed as insightful commentaries ongovernment.

When Jim Hacker, the new Minister, meets hisDepartmental Secretary, Sir Humphrey Appleby,he is introduced by his Principal Private Secretary,Bernard Woolley.

'I believe you've met before,' Bernard remarked...

Sir Humphrey said, 'Yes, we did cross swords

when the Minister gave me a grilling over the

Estimates in the Public Accounts Committee last

year. He asked me all the questions I hoped nobody

would ask.'

This is splendid. Sir Humphrey clearly admires

me. I tried to brush it off 'Well,' I said,

'Opposition's about asking awkward questions.'

'Yes,' said Sir Humphrey, 'and government is

about not answering them.'

I was surprised. 'But you answered all my

questions, didn't you?' I commented.

'I'm glad you thought so, Minister,' said Sir

Humphrey.

Yes Minister. The Diaries of a Cabinet Minister,by the Rt Hon James Hacker MP

One public servant who spoke up wasCharles Perkins. In January 1974, whenan officer of the Department ofAboriginal Affairs, he publiclycriticised government policy towardsAborigines, including statements madeby his own minister. He wasreprimanded by Mr Dexter, thepermanent head, but the Minister,Senator James Cavanagh of SouthAustralia pressed for additionaldisciplinary action. He was chargedwith improper conduct under thePublic Service Act. The Prime Minister,Mr Whit lam, exercising his executivepowers, intervened to say that thecharges should not have been laid, and,if they were upheld, he would notrecommend to the Governor-Generalthat the penalties be implemented. Thecharges were dropped.

(See also C Perkins, A Bastard Like Me)

Dr Peter Wilenski, when Chairman of the PublicService Board, (now the Public Service and MeritProtection Commission) explained the role of thepublic service in the Westminster system ofparliamentary government as follows:

The conventional picture of how the public service

fits into the system of liberal parliamentary

democracy is a fairly straightforward one. The

people elect a Parliament, the majority in the

Parliament choose a ministry, the ministers

consider advice that they receive from the

permanent public service and elsewhere, and make

decisions which are government decisions.

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The public service, apolitical and appointed on

merit, then carries out those decisions. The line of

responsibility is clear. The public servant

is responsible to the minister, the minister is

responsible to the Parliament, Parliament

is responsible to the people. The public servant has

no independent power. He or she is responsible to

the minister and the minister is, through

Parliament, responsible to the people.

The anonymity and neutrality of the public service

has been reinforced by a code of official secrecy

outlined in the Crimes Act and Public Service Act

which offered strong penalties for offenders. Under

their provisions, public servants were completelyprohibited from making public comment until 1974,

however these restrictions have since been relaxed.

In the past decade or so there have been somefundamental changes to public sector management,and hence to the public service. Governmentemployment is no longer the principal form ofemployment in Australia. The general trends are for

the public sector to become smallerthroughvarious measures like 'down-sizing', 'out-sourcing',the use of consultants and privatisation. Also morebusiness-like approaches have been adopted by the

public sector using such measures as greatercompetition, competitive tendering, increased cost

recovery, and fixed term contracts with performance

bonuses for senior managers.

Some argue that these measures will destroy thecapacity of the public service for giving 'fearlessand independent advice', and undermine theimportant role of the public sector in supportingaccess and equitymaking sure that all are treatedfairly, according to real needs.

Others feel equally strongly that cutting back thesize of government, and exposing public sectororganisations to a constant drive for greaterefficiency and effectiveness is long overdue.

Discussion:Are any members of the group, or theirfamily members, public servants?What have been your experiences ofchange in the roles of the publicservice over the past few years? HaveAustralians on the whole benefitedfrom cuts to the size of the publicsector and government programsadministered by governmentemployees? Do you think the use ofconsultants who are not publicservants is a democratic practice?

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A case study of executivepower

The control of the police and military forces ispossibly the greatest power of the ExecutiveGovernment, although the finances to equip andpay these forces must be appropriated byParliament, it is usually under the control ofthe Executive!

The Australian Constitution outlines the situationsfor the use of and the formal control of the militaryin separate sections. Section 119 says 'TheCommonwealth shall protect every State againstinvasion and, on the application of the ExecutiveGovernment of the State, against domesticviolence'. The only other reference to militaryaffairs in the Constitution is the declaration inSection 68 which says 'The command in chief of

the naval and military forces of theCommonwealth is vested in the Governor-Generalas the Queen's representative'. This can lead tosome interesting situations, even in peacetime.

Executive power and theHilton Hotel bombing(This summary of events following the Hilton Hotelbombing is taken from: Jenny Hocking (1993) BeyondTerrorism, Allen and Unwin, St Leonards)

In the early hours of 13 February 1978 a bomb

exploded outside the Hilton Hotel in Sydney.Placed in a rubbish bin, the bomb killed twocouncil workers and a policeman later died frominjuries. Several others were injured. TheCommonwealth Heads of Government RegionalMeeting was due to begin in Sydney later that day

and 11 visiting heads of government were stayingin the Hilton at the time of the explosion.

Within seven hours of the explosion the AustralianPrime Minister, Malcolm Fraser, had made theunprecedented decision to call out members of the

Defence Force to protect the visitingCommonwealth leaders by reason of terroristactivities in the State of New South Wales'(Commonwealth of Australia Gazette). For the first

time since Federation, military forces were deployed

in Australia as soldiers in peace time. Troops had

been used to break the Melbourne police strike of1923, and in 1949 to break the coal strike, but on

these occasions they were used as law enforcementofficers and coalminers respectively.

After preliminary meetings which commenced at12.50pm, a Cabinet meeting was held at 2.30pm atthe Hilton Hotel. At 11pm an Executive Councilmeeting was held at Admiralty House in Sydneywhere the Governor-General, acting on the Cabinet

decision, signed a Minute which authorised thedeployment of an unspecified number of troops foran unspecified period.

It was intended that the Heads of Governmenttravel to Bowral by train to spend two days at aluxury retreat, Berida Manor. Although this planwas changed, 800 troops were placed to guard theentire length of the railway line. Another 1200troops from Holsworthy army baseelements ofthe 2nd Cavalry Regiment, 12/15 MediumArtillery Regiments and the 5/7 Royal AustralianRegiment began their operation at 7.47am on the14 February. The 6000 residents of Bowral woke up

to find 800 fully armed combat troops guarding thetown. The leaders arrived in Bowral by helicopter

lugThe G9vernairce-of-AustraltaKit-1 S-essto-A

The eel:MVO GovcouTpong

and by road and the Hume Highway was guardedby armoured personnel carriers and armed troopsat every bridge and railway crossing. And then, atabout 11pm on that Tuesday night, although theCommonwealth leaders were to stay there anotherday, the troops were withdrawn from Bowral.

So ended the operation, but it raised manyquestions:

should the government have justified its use ofthe troops under the Constitution?

should the government have used thelegislative powers of Section 119?

were the civilians of Bowral under military(martial) law?

are members of the Executive above the law in'emergencies'especially terrorism?

The parliamentary debate on the operation tookplace on 23 February 1978. There was generalagreement that the troops were called out underSection 61 of the Constitution. Other commentatorsargued that because foreign heads of state werepresent the Commonwealth could have invoked its

external affairs power.

Here is one commentary:

The Governor-General, the Federal Executive

Council and every officer of the Commonwealth are

bound to observe the laws of the land. If necessary,

constitutional and other writs are available to

restrain apprehended violations and to remedy past

violations. I restate these elementary principles

because astonishingly one of the plaintiffs asserted

through counsel that it followed from the nature of

Executive power, even in a situation other than

war, to order one of its citizens to kill another

person. Such a proposition is inconsistent with the

rule of law. It is subversive of the Constitution and

the laws. It is, in other countries, the justification

for death squads.

Discussion:Do you think the executive shouldhave special non-democratic powers inemergencies?

End of SessionAllow some time near the end of the session toreflect on how the group is going and what youwant to do in the next session and how you willprepare for it. Some things to deal with are:

details for the next meeting;

distribution of Session 5 notes;

consider individual follow-up activitiesbetween the sessions;

discussion about visits, visitors and other extraresources; and

allowing some time for individuals to report ontheir research and journal entries if these havenot been dealt with during the session.

Next session:The High Court ofAustralia

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Background document 1Prime Ministers of Australia since 1901

Name Party

Barton, EdmundDeakin, AlfredWatson, John Christian

Reid, George

Deakin, AlfredFisher, AndrewDeakin, AlfredFisher, Andrew

Cook, Joseph

Fisher, Andrew

Hughes, William MorrisBruce, Stanley MelbourneScullin, James

Lyons, Joseph

Page, Earle

Menzies, RobertFadden, ArthurCurtin, JohnForde, Francis

Chifley, Joseph Benedict

Menzies, RobertHolt, HaroldMc Ewen, John

Gorton, John GreyMcMahon, WilliamWhit lam, Edward GoughFraser, John Malcolm

Hawke, RobertKeating, Paul

Howard, John

Key:

ProtProtectionist PartyALPAustralian Labor PartyLibLiberal Party (pre-1945)UAPUnited Australia Party

ProtProtALP

FT

ProtALP

Lib

ALP

Lib

ALP

ALP/NL/NATNAT

ALP

UAP

CP

UAP

CP

ALP

ALP

ALP

LP

LP

CP

LP

LP

ALP

LP

ALP

ALP

LP

Period in Office1/1/01 to 24/9/0324/9/03 to 27/4/0427/4/04 to 17/8/0418/8/04 to 05/7/055/7/05 to 13/11/0813/11/08 to 2/6/092/6/09 to 29/4/1029/4/10 to 24/6/1324/6/13 to 17/9/1417/9/14 to 27/10/1527/10/15 to 9/2/239/2/23 to 22/10/2922/10/29 to 6/1/326/1/32 to 7/4/397/4/39 to 26/4/3926/4/39 to 29/8/4129/8/41 to 7/10/417/10/41 to 5/7/456/7/45 to 13/7/4513/7/45 to 19/12/4919/12/49 to 26/1/6626/1/66 to 19/12/6719/12/67 to 10/1/6810/1/68 to 10/3/7110/3/71 to 5/12/725/12/72 to 11/11/7511/11/75 to 11/3/8311/3/83 to 20/12/9120/12/91 to 11/3/9611/03/96 to current

Length of Term2 y, 8 m, 24 days7 m, 4 days3 m, 21 days10 m, 18 days3 y, 4 m, 9 days

6 m, 21 days10 m, 28 days3 y, 1 m, 26 days1 y, 2 m, 25 days

1 y, 1 m, 11 days

7y, 3 m, 14 days6 y, 8 m, 14 days2 y, 2 m, 16 days7 y, 3 m, 2 days20 days

2y, 4 m, 4 day1 m, 9 days

3 y, 8 m, 29 days

8 days4 y, 5 m, 7 days16 y, 1 m, 8 days1 y, 10 m, 23 days

23 days

3 y, 2 m

1 y, 8 m, 25 days

2 y, 11 m, 7 days

7y, 4m8 y, 9 m, 9 days

4 y, 2 m, 20 days

NatNationalist PartyLPLiberal Party (formed 1946)CPCountry PartyNLNational Labor

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Background document 2Executive accountability to Parliament

Governor - GeneralEicet Uti-4e CA:3u nt'i I

rkti14r4E4--fv/House of

Ministry

SenateRepresentatives

12-vCOMMIT-TEES-OF--TH-E-PARLIAMENT

Legislative andEstimates

standing committees

Joint Committees Legislative scrutinycommittees

Legislative standingcommittees

r `.` `t.L\--4.L2"\.1,/ \\COMMONWEALTH GOVERNMENT DEPARTMENTS

Administrative Services Attorney-General's Communications andthe Arts Defence Employment, Education and Training

Environment, Sport and Territories Finance Foreign Affairs andTrade Housing and Regional Development Human Services and

Health Immigration and Ethnic Affairs Industrial RelationsIndustry, Science and Technology Primary Industries and Energy

Prime Minister and Cabinet Social Security Tourism TransportTreasury 'Veterans' Affairs

TAfuteikirtfciplEtr"/''''''Statutory Authorities and Government Corporations

From Carter, John (1995) Parliamentary Government in Australia, p.6.

I 05

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BaCkgrOlind

Es

doC11117nt 3

timated Comm

1995

onwealth outlays

96 B

by function

e

Socialsecurity

andwelfare$45.237m

1% Housing,community

amenities$1.426m

1%Recreationandculture

$1.152m

3%Otherpurposes

$4.261m

5%Generalpublic

services$6.802m

15%Health$18.42m

Estimated receipts by source

38%PAYEtax$46.71m

8%Defence$9.992m

8%Publicdebt interest

$10.077m

9% Education$10.703m

13%Generalpurpose

inter-government

transactions

$15.66m

2% Liquor/tobacco

excise$2.71m

2%Othertaxes/fees/fines

$2.021m

3%Customsduty$3.51m

3%Medicarelevy$3.6m

4% Interest/rent/dividends

$5.187m

14%Companytax$17.14m

11%Salestax$14.16m

6%Otherincome

tax$16.89m

8% Petroleumexcise

$10.31m

10%NonPAYE

tax$12.21m

4frO*ALA

1.\,0

r //

-Sessiono,

\

DISCOVERINGDEMOCRACY

Ctlz=,z,

ETSCOVERING

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Introduction

High Courtof Australia

Full Court ofthe Family Court

State Full Courts/Court of Appeal/

State Supreme CourtsFull Court ofthe Federal Court

Family Courtof Australia

State SupremeCourts

Federal Courtof Australia

Court of Appealof Territory

Supreme Courts

State IntermediateCourts

(County or District Courts)Federal Tribunals(National Native Title Tribunal

Administrative Appeals Tribunal)

TerritorySupreme Courts

State Minor Courts(Local Courts, Magistrate's Courts.Courts of Summary Jurisdiction)

Local Courts inTerritories

The Australian Court System

State Tribunals(Local Government Courts,

Workers Compensation Courts)

The Australian High Court is the most importantcourt in Australia. Its roles include constitutionalinterpretation, judicial review of Commonwealthlegislation, the settling of disputes between theCommonwealth and States and acting as thehighest court of appeal in Australia.

The High Court comprises seven appointedjustices who can remain in office until they are70 years old, unless they choose to retire earlier.

The Constitution demands that their salaries not bereduced during their term of office (although theymay be increased). This is a means to ensure thattheir independence is not compromised.

Since its establishment in 1903 it has madethousands of judgements about a wide range ofconstitutional matters. Some of its cases havebecome famous as have some of its justices.

1.08

=The Gio_v_e-rn-ance--ot-Australia - Kit 1 SessionBEST COPY AVAILABLE

Its power is significant, and on its establishment itwas regarded by Alfred Deakin as 'the keystone tothe federal arch'. It was to be the umpire inconstitutional and federal disputes by providing aresolution based on law. As these decisions havebeen peacefully accepted, it has provided much ofthe stability of Australian democracy through therule of law.

It is an area of government which has attractedincreased media attention and public interest inrecent years, especially because of it decisionsabout native title and human rights and questionsabout the independence of the judiciary. Theseissues should form the basis of some livelydiscussion for learning circles.

The aims of the session are to:

identify where the High Court fits into theAustralian Constitution;

examine your perceptions of the High Court;

discuss some High Court judgements;

consider the process of appointment of HighCourt justices; and

examine the idea of the separation of powers inour government system and whether the HighCourt fulfils its role in this arrangement.

Suggested activitiesPerceptions of the High Court 3

The Mabo and Wik judgements 6

Appointment of High Court justices 7

The High Court and the 'separation 9

of powers'

End of session 10

Background document 1The High Courtsome history 11

Background document 2The High Court and the Constitution 13

Background document 3The High Court and Constitutional change 15

ResourcesHigh Court of Australiabrochure

Australian Constitution Chapter 3

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Perceptions of the High CourtIn 1997 the popular and light-hearted Australianfilm 'The Castle' was partly set in the High Court,when its Aussie battler hero, Darryl Kerrigan,sought to defend his right under Section 51 (xxxi)of the Australian Constitution for just terms for theacquisition of his property adjacent to an airfield.After failing in a local Magistrate's Court, he winshis case on appeal to the High Court. However, notall treatment of the High Court is so good-humoured.

Partly because of its move to its prominent newbuilding on the shores of Lake Burley Griffin in

Canberra in 1980, and partly because of its decisions

about Native Title in both the Mabo and Wik

judgements, the High Court currently attracts a lotof attention from politicians and the public. There

has been controversy over the appointment ofparticular justices to the High Court, and attacks onwhat some see as a tendency to encroach on the

policy making role of government 'judicial

activism'. Here are two samples from recent debate.

Criticising the High CourtIn the 1997 Alfred Deakin Lecture, Professor Greg

Craven criticised what he sees as the 'progressivism'

and 'judicial activism' of the High Court:

Another relatively obvious prediction is that

Australian constitutional federalism is in

something very close to a terminal decline at the

hands of the High Court.

He cites the 1997 judgement on Section 90 of theAustralian Constitution which determined that theStates had no constitutional right to collect exciseduties (although the Commonwealth has promisedto collect and return these revenues to the States).

He continued:

One highly likely and deeply troubling outcome of

the High Court's progressivism is that of an

eventual, massive confrontation with government.

There is little doubt that if the Court continues

sufficiently far along a politically intrusive path of

rights jurisprudence, there eventually will become

a point when the Executivedoubtlessenthusiastically supported by the Court's beloved

Parliamentwill no longer be able to tolerate its

pretensions.

He concludes the lecture by saying that:

...the Court itself undoubtedly is in the midst of

an appalling decline in its own intellectual ethics.

It is a matter of fundamental regret that the High

Court of Australia, as an essentially political

creature, believes not in the rule of law, but in the

rule of a small number of lawyers.

Professor Greg Craven 1997

Professor Craven may have been responding to an

address given on the 15 August 1997 by (High Court)

Justice Michael Kirby AC CMG at the Queensland

University of Technology's Faculty of Law dinner on

the subject of 'Teaching Australians Civics'.

Defending the High CourtOne of the chief failures of a century of federal

government in Australia has been the omission

to teach succeeding generations about the

Constitution and how this country is governed.

The result is a shocking level of ignorance about

civics. This ignorance reveals itself in what passes

for constitutional 'debate' in this country.

It extends even to some of our leaders. In a sense,

this ignorance undermines our country'scommitment to constitutionalism and the rule of

110

=The_Governance of-Australia - Kit 1 Session

law. We should be moving urgently to correct it.

That should be a major objective of the celebrations

of the centenary of the Constitution in 2001.

The ignorance of which I speak is not confined to

one side of politics. It has infected some federal and

state legislators and political leaders. It reaches truly

shocking levels of misunderstanding. It is getting

worse. It seems to be cumulative in its effect.

Take the comments of two State Premiers from the

one side of politics. One called a judgement of the

High Court 'ranting and raving'. Another

described the majority judges in a recent case as

'loopy'. One suggested that the High Court was

making the country 'ungovernable' because he did

not like a decision which his State had fully

argued and which had gone against its

submissions.

It has become commonplace to stereotype the

judges as 'Capital C conservatives' or 'Capital A

activists' as if judges or their decisions fitted

neatly into the political categories that politicians

know. Another leader suggested that the High

Court was wrongfully delaying an important

judgement. Conduct of this kind on the sporting

field in Australia could result in a spell in the sin

bin. But, political comment on judges, amounting

to personal denigration and reflection on their

motives, has increasingly become the norm. One

offender eggs the other on to more and more

extravagance.

On the other side of politics a former Federal

Minister this week cast what he was pleased to call

'a plague on the high and mighty'. He had

previously described the majority in an important

High Court decision as 'basket weavers'. But now

he was at it again. The judges lacked 'common

sense'. He would rather have politicians 'decide

policy than High Court judges'. At least, he said,

politicians 'know they need a majority of

Australians to vote for them if they want to be re-

elected. High Court judges have no need for

majority support to keep their jobs until their

dotageand it shows!

This commentator clearly implies that the

decisions of the High Court on the meaning of the

Australian Constitution should be decided by

popular appeal, not by legal authority. It should be

determined by political choice not by the rule of

law. It should bend to 'common sense' and throw

away legal analysis.

There are a few elementary points to be made

about all of these comments. The judges do not

choose their cases. They cannot put problems off as

politicians sometimes do. They have a complaint

by a litigant that a particular law is

unconstitutional. They have to decide that

challenge. They must do so by reference to an

unchanging constitutional text, conceived in the

1870s and written in the 1890s. They must yield

their personal opinions to that text and the earlier

decisions upon it. They are not just able to turn

the problem over to the politicians or popular

opinion. One would have thought that a long

serving Minister of the Crown would have

understood this. Alas, not so. Some politicians and

many others turn not a few of the difficult problems

of this country over to the High Court. Its judges

must continue to do their duty, as they have for

nearly a century. But it seems they must now do so

in a political culture of increasing personal

denigration and name-calling. It ought to stop.

You can search the newspapers in 1948 after the

High Court rejected the Chifley Government's

bank nationalisation and you will not find a

single word questioning the integrity of the

High Court judges. Likewise, after the Court

overruled the Menzies' Government's

Communist Party Dissolution Act in 1951. The

same in 1956 when the Court struck down the

then Arbitration Court system. Similarly, afterthe Tasmania Dam case in 1983. Most of these

were majority decisions. But the governments of

the day recognised that the nation needed a

constitutional umpire. In the Australian nation,

that umpire is the High Court. But now some

players want to attack the umpire personally.

--The Govern-ance of Australia - Kit 1

4 of

Session 5

It is a development that reflects an increasingly

graceless time. It deserves careful re-consideration.

No judge's decisions are beyond criticism. In a

democracy, criticism is healthy. Most judges of my

acquaintance welcome and reflect upon public

criticism of their reasoning. The High Court's

decisions themselves uphold a high measure of free

speech in this country. But epithets like 'ranting

and raving' and 'basket weavers' deserve nothing

but contempt from the people. The message should

go out clearly. Criticise decisions. Object to

reasoning. Propound alternatives. Suggest lessons

from other places. But leave off the personal

attacks and common name-calling. Otherwise this

conduct becomes cumulative. It debases our polity.

It encourages others to join in the verbal and

personal abuse. The price will be paid by a loss of

community confidence in the institutions vital to

the protection of a free societythe independent,

neutral and professional courts. I have seen

countries where the power of the courts has been

eroded by unrelenting political attacks. Let me tell

you, when you take the independence of the judges

away, all that is left is the power of guns or of

money or of populist leaders or of other self

interested groups.

As the centenary of the Australian Constitution

approaches, we need to teach our citizens about

our constitutional systems and how it works,

including the High Court of Australia. We need to

teach children in our schoolrooms. It also seems,

sadly, that we need to teach some who should

know better.

Justice Michael Kirby, August 1997

The alternative to 'progressivism' in the HighCourt is the doctrine of 'strict legalism'. This waswell expressed by Sir Owen Dixon, Chief Justice,High Court of Australia 1952-1964 when he said:

The Court's sole function is to interpret a

constitutional description of power or restraint

upon power. It has nothing whatever to do with

the merits or demerits of the measure. Legal

reasoning is the only way to maintain the

confidence of all parties. It may be that the Court

is thought to be excessively legalistic. I should be

sorry to think that it is anything else. There is no

other safe guide to judicial decision in great

conflicts than a strict and complete legalism. It is

not the business of [lawyers] to contribute to the

constructive activities of the community, but to

keep the foundations and framework steady.

Other commentators defend the High Court as theinstitution of Australian governance whichprovides more continuity and certainty than theother branches. In reference to the question ofextinguishment of Native Title on freehold land,South Australian Senator Nick Bolkus, ShadowCommonwealth Attorney General, said 'I wouldhave thought a 7-0 decision three times in a row[by the High Court] gives you much morecertainty than an Act of Parliament' (The CanberraTimes, 28 November 1997).

Activity:What perceptions do you have of theHigh Court? Is it a useful part of oursystem of governance? Does it dealwith the concerns of 'ordinary'citizens? Can it be a neutral bodybasing its judgements purely in thelaw? Does the fact that its members areappointed make it undemocratic?

Which of the points of view expressedabove by Professor Greg Craven,Justice Michael Kirby and ChiefJustice Sir Owen Dixon do you thinkhas merit?

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The Mabo and Wik judgementsTwo particular judgements of the High Court inthe 1990s have fundamentally changed theinterpretation of the Australian Constitution aboutmatters which are not even mentioned in it. TheMabo case (Mabo and Others vs Queensland (no. 2)

1992) which had been commenced in 1982, in a long

judgement, rejected the established principle of terra

nullius. This principle, by arguing that there were noIndigenous inhabitants able to present a political

identity to deal with, allowed the British Crown theright to take over all Australian land as its own.This was one of the prerogative rights of the Crown(see Session 4) in any colony. International law

recognised conquest, cession or occupation ofterritory that was terra nullius as three of the

effective ways of acquiring sovereignty andtherefore ownership and control over the land.Thus, in Australian law as in England, the Crownclaims 'original' or 'radical' title to all land, andpeople hold freehold land, theoretically, as tenants

of the Crown. (See Republican Advisory Committee(1993) An Australian Republic, vol. 1, p. 145.)

In its judgement handed down on 3 June 1992, the

Court held, by a six to one majority, that the peopleof the Murray Islands retained Native Title to their

land. In reaching the decision, the Court overturned

the concept of terra nullius, and established that

Native Title had always been part of Australia'scommon law, although unrecognised until then.

Justice Brennan, in his judgement, said:

As the Government of the Australian Colonies

and, latterly, the Governments of the

Commonwealth, States and Territories have

alienated or appropriated to their own purposes

most of the land in this country during the last

200 years, the Australian Aboriginal peoples have

been substantially dispossessed by the Crown's

exercise of its sovereign powers to grant land to

whom it chose and to appropriate to itself the

beneficial ownership of parcels of land for the

Crown's purposes. Aboriginal rights and interests

were not stripped away by operation of the common

law on first settlement by British colonists, but by

the exercise of a sovereign authority over land

exercised recurrently by governments. To treat the

dispossession of the Australian Aboriginals as the

working out of the Crown's acquisition of ownership

of all land on first settlement is contrary to history.

Aborigines were dispossessed of their land parcel by

parcel, to make way for expanding colonial

settlement. Their dispossession underwrote the

development of the nation.

Again, in June 1996, a High Court decision had aprofound effect on the Australian political scenethrough its judgement (decided by a four to threemajority) in the Wik Peoples vs the State of

Queensland case. There were 35 legal counsel

present, the most to ever appear in the High Court,and the finding that native title could co-exist withpastoral leases has produced an issue which isnow central to the process of AboriginalReconciliation and Australian politics.

Activity:Why have the High Court's decisionsabout native title in the Mabo and Wikcases attracted so much attention? Doyou think they made their judgementsbased on a 'strict legalism' or aprogressive interpretation of the law?

As citizens should we always 'acceptthe umpire's decision' in relation toHigh Court decisions?

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Appointment ofHigh Court Justices

Because High Court decisions can have a very big Legal errors by judges in the sentencing process could

impact on society, and there are only seven judges, and should be corrected by other judges through the

their appointment is an important and sensitive appeal process.

matter. A 'progressive' High Court can assist areforming government, a 'conservative' High

"What Ms Hanson proposes is not the correction of

Court can keep one in check. While politicalerror, but the bullying of judges to comply with

parties formally agree that the appointment ofsomething called 'policy' which Parliament has not

judges must be based on their legal expertise andmade compulsory,' Mr Walker said.

experience appropriate to the job, this of course Ms Hanson's proposal for a 'community watchdog withleaves room for exercising a good deal of teeth' showed she did not understand elementarydiscretion in influencing the make up of the Court. principles about judicial independence and the rule of

law.For citizens this raises the issue of the way inwhich judges are appointed, and whether there arealternatives to the present system.

Former Queensland Premier, Rob Borbridge, wasoutspoken on the issue of the High Court. He hasadvocated a greater say by the States in theappointment of justices, constitutional changes toallow a majority of States to veto High Courtjudgements, the confirmation of any appointmentby a referendum/plebiscite, seven or ten yearterms for justices, and the creation of a new courtto sit above the High Court.

In January 1998, One Nation Party leader PaulineHanson's proposal for a non-judicial panel tosupervise, or even remove, judges drew a sharpresponse from the Law Council of Australia:

'The One Nation Party's proposal to supervise, or even

remove judges by a non-judicial panel would

fundamentally undermine judicial independence', the

Law Council of Australia has warned.

Council President, Brett Walker, SC, described as

'terrible' Pauline Hanson's proposal for 'lay review',

which apparently threatened the removal of State

judges.

'The idea is philosophically repugnant, and, in the

unlikely event it were ever taken seriously enough to be

implemented, would impose a form of Executive

tyranny over the Bench not seen since 1701,' Mr

Walker said.

The Canberra Times, 16 January 1998.

The appointment of judges with an immediatebackground as political figures has also raisedsome issues. Governments over the last 25 yearshave not made such appointments. The last one

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was Justice Lionel Murphy, appointed by theWhit lam Government in February 1975. Murphywas Attorney-General at the time of theappointment. But there had been a history of suchappointments up until then. For example, the ChiefJustice in February 1975, Sir Garfield Barwick, had

been appointed to the High Court in 1964 directlyfrom the Commonwealth Parliament where he hadsat from 1958-1964 as a Liberal Party member.

Barwick, then Minister for External Affairs, hadpreviously been Attorney-General in the Menzies

Government.

Some considerations about the appointment of

judges:

since 1978 the States have had a formal, but notpublic role of participating in the selection ofHigh Court justices. The process is co-ordinated

by the Commonwealth Attorney-General whotakes a recommendation to Cabinet afterconsulting with State Attorneys-General, andCabinet makes the decisions;

the Australian Constitution relies only onconvention that experienced lawyers areappointed as High Court justices. It does notspecify any qualifications or disqualificationsfor High Court justices such as those requiredof members of Parliament in Sections 44 and 45;

in the USA, many judges are elected andfederal judges are nominated by the President,but must have their appointment ratified by theSenate after being interviewed in public; and

in some European countries, judges follow thatcareer from their line of graduation and are notopen to the charge that prior work in politics orany other sector compromises theirindependence.

Activity:Should the process of appointingjustices to the High Court be mademore open to public scrutiny? Shouldtheir qualification be prescribed in theConstitution or elsewhere? (e.g.judicial experience, not to be a memberof a political party, to be of a minimumage, etc.) How can their independencebe ensured?

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The High Court and the`separation of powers'

All in all, we have been let down in the protection

of our fundamental liberties, by our elected

Parliaments. More and more they confuse the

concepts of government according to the Rule of

Law, with the concept of government by laws,

passed by a Parliament with a majority. They

believe that an elected Parliament can do anything

and Parliament is supreme. The supremacy of the

Parliament may be secure vis-a-vis the King, the

unelected sovereign, but the supremacy of

Parliament is subject to the authority of Rule of

Law and subject to Parliament acting lawfullyavery different thing. In addition we have a federal

system with State and local parliaments and their

Executive sectors each imagining that an electoral

majority is all that is needed. Parliamentarians

seem unable to grasp the distinction between a

representative democracy governed by the Rule of

Law, and one governed by a majority.

Peter Short, President Law Council of Australia,speaking at the Australian Legal Convention in

Melbourne on 18 September 1997

Liberal democratic political and legal theorydemonstrates a deep-seated mistrust ofconcentrations of decision-making power inpolitical systems. The ultimate expression of suchconcentration is totalitarianism. Maybe suchsuspicion is also an Australian nationalcharacteristic, derived from past experiences ofmisused political influence, favouritism and evencorruption, which has been a central issue inAustralian political and legal systems for the last

two decades.

It is expected that power will be exercised in ademocratic way and open to examination to ensurethat arbitrary decisions are not made, nor hiddenaway. This increase of emphasis on accountabilityhas endured not only in the doctrine of thefreedom of the press, but also in additionallegislation like the Freedom of Information andOmbudsman Acts which now cover all the federalsystem in Australia.

From the highest court inAustralia, the High Court ...to

local magistrates' courts, ...independence from popularly

elected politicians andgovernments is seen as

essential. This is part of therule of law.

Ultimately, democratic systems of government relyon the dispersion of decision-making power, sothat there are built-in checks and balances on andbetween each branch of government.Constitutional commentators have identified theseas the legislative, executive and judicial branches.However, the legislative and executive powershave merged in practice due to the operation of theCabinet system of government and the dominanceof at least the lower house of the Parliament by thedisciplined political party forming the government.

If it is accepted that the legislature is no longer aneffective check or balance to the executive branch

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of government, then this situation puts a specialfocus on the judicial system and its need forindependence from politics. From the highest courtin Australia, the High Court, which has the specialrole of interpreting the Australian Constitution, tolocal magistrates' courts, which make initialrulings on many cases of national importance,independence from popularly elected politiciansand governments is seen as essential. This is partof the rule of law.

Discussion:Does this situation in relation to theseparation of powers give the HighCourt the status of being the mostimportant of the three branches ofgovernment? Does this role need moresafeguards in the AustralianConstitution?

End of SessionAs the learning circle only formally has one sessionto go, make sure the group allows time to fullydiscuss what will be happening in that session.Here are some possibilities:

are there any visits or extra activities which youwould like to do that you haven't planned orhad time for?

consider who will take responsibility forsending the evaluation sheet back to AAACE;

does the group wish to consider working withKit TwoThe Three Spheres of Government of the

AAACE Learning Circles Discovering

Democracy programme?

specific arrangements for the last meetingincluding the possibility of some social activity.

Next session:An Australianrepublic?

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Background document 1The High Courtsome history

The Australian Constitution owes much tothe constitutional practices of Britain and theConstitution of the United States of America.From Britain came the practice ofresponsible government. This system,incorporating the principle of choosing theleader of the majority of the lower house toform a government, and that governmentbeing responsible to the Parliament, becamepractice in the newly federated Australia.

However, the Australian Constitution left theroles and relationships of the legislative andexecutive branches of governmentsomewhat blurred.

The Constitution of the United States ofAmerica completely separated thesebranches. The works of the constitutionalauthority A.V. Dicey, were well known to theConstitution framersparticularly theTasmanian Andrew Inglis Clarke who was akeen supporter of the American system.However, the drafters of the AustralianConstitution wished to incorporate not onlythe federal system of the USA but its idea ofhaving a Supreme Court which would decideconstitutional disputes between the Statesand the Commonwealth, would exercisejudicial review of legislation and would bethe highest court of appeal in the newnation. This blend of systems has lead somecommentators to call the Australian federalsystem the 'Washminster' system.

The High Court was the product not only ofthe Constitution but also of Commonwealthlegislation. The Judiciary Bill (1903) and HighCourt Procedures Bill (1903) which wouldestablish the High Court and its procedureswere controversial and vigorously debated.

Sir Edmund Barton, speaking at the FederalConvention Debates in Adelaide in 1897 sawthe role of the High Court as policingfederalism. He said the High Court wouldhave to decide 'between the States and theCommonwealth, the validity of State laws,and the validity of Commonwealth lawswhich may overlap or override them'.

This view was echoed by Alfred Deakin inthe new Commonwealth Parliament in 1902(Commonwealth Parliamentary Debates,p. 10967)

The Constitution is to be the supreme law,but it is the High Court which is todetermine how far and between whatboundaries it is supreme. The federation isconstituted by distribution of powers, and itis this court which decides the orbit andboundary of every power. Consequentlywhen we say that there are threefundamental conditions involved infederation, we really mean that there is onewhich is more essential than the othersthecompetent tribunal which is able to protectthe Constitution, and to oversee its agencies.That body is the High Court. It is properlytermed the keystone of the federal arch.The High Court exists to protect theConstitution against assaults.

The creation of the High Court was delayeduntil 1903, opposed by those who supportedPrivy Council appeals, those suspicious oflawyers and politicians and those who said itwas not yet necessary. The debate reflecteddisagreement on the central issue ofconstitutionalism versus parliamentarysovereignty. The Government argued thatthe Constitution rather than the Parliament

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embodied the higher will of the people asthe people had approved the Constitutionand elected the delegates who finalised itsdrafting in 1897-98. Barton said:

It is in controlling transgressions beyond theConstitution, either by this Parliament or bythe Parliaments of the States, that the workof the High Court will in a large measure lie.We want a tribunal composed of men whounderstand the people, who live amongstthem, who understand the history of andreasons for our Constitution, and who arenot dependent for their knowledge uponcasual reading (CPD 13, 807).

The High Court of Australia has had aremarkable influence on Australia'sconstitutional development and generalhistory from the time of its inauguration in1903. Since then it has only had ten ChiefJustices whereas the Commonwealth has had26 Prime Ministers. In these terms it haslived up to Alfred Deakin's observation in1902 that 'The High Court is properly termedthe keystone of the federal arch'.

At its opening in the Banco Court of theSupreme Court of Victoria on 5 October1903, (the federal capital was located inMelbourne from 1901 to 1927), theCommonwealth Attorney-General SenatorJames George Drake (1850-1941) who hadbeen a keen supporter of the federationmovement in Queensland, said 'As in thecase of the United States, we believe thatthe decisions of this court will breathe aliving spirit into the dry bones of aparchment Constitution, and that yournames will live in history with those of theillustrious exponents of Americanconstitutional law.' (Sydney Morning Herald7 Oct 1903).

Sir Samuel Griffith, the first Chief Justice, aprincipal drafter of the AustralianConstitution and Governor of Queenslandfrom 1899 to 1903, responded lessoptimistically by saying 'I feel that we haveundertaken most weighty and responsibleduties, and as the Bar has well said, to someextent more weighty and responsible thanwill fall to our successors. Whether wecommand the confidence of the people ofAustralia, which, being so generously offeredto us at the outset, will depend uponourselves. But I am quite certain of thisweshall never allow any judgement to beinfluenced in the slightest degree by thedesire to retain, or by fear of losing, thatconfidence'. Not only would the court beindependent, but also, it would not beswayed by popular opinion nor pander to it.

Griffith was joined by only two other justicesin 1903Sir Edmund Barton and RichardEdward O'Connor (both New SouthWelshmen). The Court's work both in thejudicial review of Commonwealth legislationand as a court of appeal and review of allAustralian courts, including State SupremeCourt judgements, meant a rapid increase inits workload and two more justices wereadded in 1906, and two more 1912. Thisnumber of seven justices (apart from theperiod from 1933 to 1946 when there weresix justices) has prevailed to this day. In majorcases they sit together, but less may sit on amatter and one justice may preside alone.

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Background document 2The High Court and the Constitution

The Judicature is dealt with in the thirdchapter of the Australian Constitution. Itsfirst section, Section 71, states:

The judicial power of the Commonwealthshall be vested in a Federal Supreme Court,to be called the High Court of Australia, andin such other federal courts as theParliament creates, and in such other courtsas it invests with federal jurisdiction. TheHigh Court shall consist of a Chief justice,and so many other justices, not less thantwo, as the Parliament prescribes.

The next clause explains that these justiceswould be appointed by the Governor-General in Council, could only be removedon the grounds of proved misbehaviour orincapacity and would not have their salariesdiminished during their continuance ofoffice. These requirements were seen asguarantees of judicial independence frompolitical influence.

The High Court's functions are broadly inthree areas, to:

have original jurisdiction on mattersrelating to the Constitution, treaties anddisputes between states;

be an appeal court for decisions of allother courts in Australia; and

exercise the function of judicial review ofany laws made by the CommonwealthParliament.

The separate legal systems which haddeveloped in the separate colonies, witheach having its own Supreme Court, werenot diminished, apart from creating thepossibility of appeals against decisions of

those courts. In fact, under Section 71, theConstitution enables the CommonwealthParliament to give State Courts the right tohear cases within federal jurisdiction.Consequently Australia has had a dual orfederal legal system from 1901, and oneissue that has been discussed ever since isthe advantage of maintaining this system ordeveloping a unitary justice system inAustralia.

A prime motive of the Constitution draftersin incorporating a new High Court into theAustralian Constitution was the need theyfelt to disperse power in the political systemand to defend the new federal system inAustralia so that no one person or officecould exercise uncontrolled powers. The firstof these factors was rooted in the concept ofthe rule of law. This rested on theindependence of the judiciary, and theconcept that governments, althoughrepresenting the majority at any one time,may introduce ill-advised and short termmeasures to satisfy that possibly temporarymajority, and a strong judiciary could retard,review and control this process. This wouldset the rule of law against the rule of themajority. Also, although the Senate had beendesigned to defend the States, it wasanticipated the High Court would furtherachieve this task. Some argued thesefunctions were not democratic as, of course,justices were not to be elected butappointed officials, and appointed for life ifthey wished. Although a referendum in 1977placed an age limit of 70 years on HighCourt Justices there are no other limits, otherthan proved misbehaviour or incapacity, totheir stay in office.

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The High Court of Australia was intended tobe the highest appeal court in Australia,but all colonial Supreme Courts had allowed(and would continue after Federation, toallow) appeals to the Queen in Council(the Privy Council). When, in 1900, theAustralian delegation was negotiating thepassage of the Australian Constitution Billthe British ministers insisted that the right ofappeal to the Privy Council from the HighCourt be allowed. The Australian delegationwas forced into a compromise which, inSection 74, allowed appeals from the HighCourt on matters other than constitutionalmatters, and even the latter could bepermitted if the High Court itself determinedthat the appeal to the Privy Council shouldbe allowed. This was contentious at the timeand remained so until all appeals werestopped progressively from 1975 and 1986by Commonwealth legislation rather than achange to the Constitution. The Australia Act(1986) did denote the end of any furtherappeals to the Privy Council. A copy of theact is referred to in the AustralianConstitution included in the kit.

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Background document 3The High Court and Constitutional change

The Australian Constitution is difficult tochange. Section 128 allows change only if aproposal is approved by a majority of votersin a majority of States. Only eight of 42referenda for constitutional change havebeen so approved, and so the AustralianConstitution looks basically the same as itdid in 1901. However, by its judgements, bythe process known in legal terms as judicialreview, the High Court has allowed greatchanges in the relationships between theCommonwealth and States and the nature ofAustralian governance.

At the time of federation the States wereregarded as the primary governments of thefederation, yet approaching the centenary offederation the Commonwealth clearly ismore influential. The powers of theCommonwealth had been clearly set out inthe Constitution on the understanding thatthe States had powers over all other matters.The listing of Commonwealth powers wasintended to limit them, yet although theConstitution has not been substantiallychanged this power balance has clearlytipped to favour the Commonwealth. Howdid this happen?

The constitutional rights of the States in thefederal compact were defended, but this wasalways against the background of argumentsin favour of more central power in theAustralian federation. For example AlfredDeakin commented in one of his anonymousMorning Post articles when Prime Ministerin 1906:

The ardent and aspiring federalists who lookforward to the time when every truly nationalfunction shall be in the hands of the Federal

Government while the States and their courtsshall be restricted to subsidiary local affairshave no more zealous and consistent ally thanthe present Prime Minister.

(See Alfred Deakin, Federated Australia pp.187-8).

In that same year the two new appointees tothe expanded High Court, Justice Isaac Isaacs(later to be the first Australian-bornGovernor-General) and Justice HenryBournes Higgins, were both ardentfederalists and political radicals, intent uponexpanding Commonwealth powers. Theylooked forward to a more integrated nationwith a dominant national government.

The High Court case of Fairey vs Burdett (1916)upheld the Commonwealth's powers underthe War Precautions Act 1914-16 that theCommonwealth Government could fix breadprices in Victoria and gave the CommonwealthGovernment virtually dictatorial powers 'forthe more effectual prosecution of the war'.The High Court upheld all of theGovernment's regulations including thedetention of suspects, deportation of aliens,confiscation of aliens' property, andprevention of propaganda prejudicial toenlistment. However, governments find iteasier to extend their powers in wartime,when official censorship and the suspension ofdemocratic rights occurs.

The Engineers Case of 1920 marked a breakfrom the doctrine of implied immunities andextended Commonwealth power in theindustrial area without any changing of thewording of the Australian Constitution. Theyoung Victorian barrister Robert Menzies(1894 -1978) argued on behalf of the

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Engineers Union for the extension ofCommonwealth power over industrialrelations in Western Australia, by arguingthat State owned enterprises, like timbermills, were trading companies and not Stateinstrumentalities. This directly challenged theright of the State to govern its affairs, foralthough, in Section 51 (xxxv) theConstitution gave the Commonwealth powerto resolve industrial disputes which extendedbeyond State borders, this case was restrictedto one State. Consequently Commonwealthindustrial awards became establishedalongside the state system and the ability ofthe Commonwealth the set levels for workingconditions and wages grew rapidly. This caseis a key example of judicial interpretation ofthe Constitution which effected constitutionalchange without changing the wording of theAustralian Constitution.

The Uniform Tax Judgement of 1942 wasanother such milestone. The power to raisemoney through taxes is a vital one for anygovernment and during the FederalConvention debates of the 1890s there wasno general agreement about the matter.However, it was felt that the revenueproduced by an Australia-wide customsduties would provide adequate finance forthe fledgling Commonwealth Governmentafter three-quarters of the total raised wasreturned to the States. But the functions ofthe Commonwealth Government hadmultiplied and its size and cost had grown.It sought new sources of money andintroduced Income Tax and Sales Tax in the1930s. Income taxes were concurrentlycollected by the State Governments, and theCommonwealth passed legislation to imposeincome tax. The States claimed this movewas unconstitutional but in 1942 the HighCourt judged the Commonwealth had the

power to levy income tax relying on itsdefence power, in war-time. However it didnot outlaw State income tax collection. It ispolitics, not the Constitution or the HighCourt which stops States imposing incometax at the present time.

The Tasmanian Dams Case of 1983 was equallycontroversial. In 1983 the CommonwealthParliament passed an Act preventing theconstruction of a dam on the Franklin River inTasmania. It argued that its ratification of the1972 Convention for the Protection of WorldCultural and Natural Heritage gave theCommonwealth Government the right underSection 75 of the Constitution to regulate theuse of such land. Section 51 (xxix) of theConstitution gives the Commonwealth thepower to legislate for external affairs andSection 75 simply says 'In all matters (I)Arising under any treaty the High Court shallhave original jurisdiction'.

In the 1890s, when the Constitution wasbeing discussed and drafted, internationaltreaties were expected to deal with matterslike defence, trade and immigration, but bythe 1980s international treaties dealt with anincreasingly varied range of subject includingthe environment and human rights.

The effect of this case was to enable theCommonwealth Government to control landuse in the States, where that land wasdeclared as a World Heritage sitean areawhich had not been included in theCommonwealth's list of powers in 1901. Criticsargued that the Commonwealth would beable to use the external affairs power tocontrol any aspect of State Government solong as the Commonwealth was a signatory toa treaty on the matter. They predicted that themost fundamental and trivial of matters wouldbe controlled from Canberra.

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Backgmund document 3Formal and interpretive constitutionalchange:

It is as one of the organs of government whichenables the Constitution to grow and to beadapted to the changeful necessities andcircumstances of generation after generationthat the High Court operates. Amendmentsachieve direct and sweeping changes, but the

Court moves by gradual, often indirect,cautious, well-considered steps, that enable

the past to join the future, without unduecollision and strife in the present.

Alfred Deakin's 1902 Speech introducingthe Bill to establish the High Court

The formal way of changing the Constitutionis by referendum as set out in Section 128.However, by interpreting the Constitutionfrom 1903 the High Court has, in fact, mademany constitutional changes without alteringthe wording of the Constitution. Sometimesthis arises from the situation where thewording of the Constitution is unclear, orthere are contradictory sections. For examplein 1975 the High Court agreed that senatorscould be elected for each of the twomainland territories, under the territoriespower in Section 122 of the Constitution,despite the requirement in Section 7 for theSenate to be 'composed of senators fromeach State.

One debate that has been central toconstitutional interpretation from 1903 iswhether the Constitution should beinterpreted literally as a legal document orwhether its history and the intention of itsframers should also be considered. SamuelGriffith, Chief Justice from 1903 to 1919 saidin his judgment in Baxter's Case (1907) 'It istrue that what has been called an 'astralintelligence', unprejudiced by any historical

knowledge and interpreting a Constitutionmerely with the aid of a dictionary, mightarrive at a very different conclusion as to itsmeaning from that which a person familiarwith history would reach'.

More progressive views were also advocatedby commentators on the High Court andsome justices. For example, Isaac Isaacs, amember of the Victorian delegation to the1897 Constitutional Convention and aJustice and Chief Justice of the High Courtfrom 1906-1930, after which he wasappointed Governor-General in 1931 madethe following comments in the judgementin Commonwealth vs Krelinger & FernauLtd (1926):

It is the duty of the judiciary to recognise thedevelopment of the nation and to applyestablished principles to the positions whichthe nation in its progress from time to timeassumes. The judicial organ would otherwiseseparate itself from the progressive life of thecommunity and act as a clog upon thelegislative and executive departments ratherthan as an interpreter.

As a living, co-ordinate branch ofgovernment, [the Court] cannot stand stilland refuse, in interpreting the law, torecognise the advancing frontiers of publicthought and public activity.

More changes have been made to theAustralian Constitution by interpretationthan by formal amendment. How democraticis this process?

Web site http://www.austlii.edu.au has allthe decisions of the High Court-6500decisions, 1047 in fullincluding Wik andMabo).

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IntroductionThe aim of this session is to discuss an importantquestion of Australian governanceshouldAustralia become a republic or continue as aconstitutional monarchy? This discussion includesexamining some of the symbols as well as thesubstance of our constitutional system.

The activities in the session guide will help youexplore and discuss the following:

the difference between constitutional monarchyand republican systems

the role of the Crown in Australian governance

who should be Australia's Head of State?

whether Australia should have a Head of Stateas well as a Head of Government

what the various general republican models are

what the States may do about an Australianrepublic

what specific changes are necessary in theAustralian Constitution for Australia to become

a republic

how Australian citizens were involved in the1999 debate and referendum

is there a case for another referendum, and, ifso, when.

The suggested activities are only a guide. Read thesession guide before the meeting and then decideat the beginning of the session how the time willbe spent. The material in this session guide couldbe discussed in more than one session, or usedearlier in the learning circle.

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Suggested activitiesAustralia's constitutional monarchy

Should Australia become a republic? 5

Choosing the Head of State: popular election 7

Heads of State and Heads of Government 8

Steps for change

What about the Australian States?

Should there be a Head of State or President? 11

The republic and governance 12

Rewriting the Constitution 13

The 1998 Constitutional Conventionand the 1999 Referendum 14

Resources3 Australian Electoral Office, Yes/No: Referendum '99,

Your official referendum pamphlet

Commonwealth Government, Referendum,6 November 1999: Which way do you want to go?

Constitutional Centenary Foundation, Referendum

9 on the Republic: Questions and Answers

10 Parliamentary Education Office, Should Australia

become a republic in 1999?

End of session 18

Background document 1The development of the constitutionalmonarchy in England and Australia 19

Background document 2An Australian as Head of State? 23

Background document 3

Case study: Dismissal of a Premier, New South

Wales 1932 24

Background document 4Heads of State and Heads of Government 26

Background document 5

Notes on the History of AustralianRepublicanism

Background document 6Case Study: Dismissal of a Prime Minister,Commonwealth of Australia, 1975

27

29

Background document 7

The Constitutional Preamble 31

Department of the Parliamentary Library,1999 ReferendaSummary of Results, Information and

Research Services, Research Note, 19, 1999-2000

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Australia's constitutionalmonarchy

Since 1901 Australia has been a constitutionalmonarchy. Prior to that the Australian colonialgovernments were also constitutional monarchiesand the British monarch continues to be theconstitutional head of each of the Australian states.Background Document 1 provides considerabledetails about the development of the Britishmonarchy and its connections to Australia.

Some general points are:

the popularity of the British monarchy at thetime of the first visit by a reigning monarch toAustralia in 1953.

the regular visits of royal figures to Australiasince that date, including the opening of theMelbourne Olympic Games, the Sydney Opera

House and the new Commonwealth ParliamentHouse in 1988.

the creation of the title of Queen of Australia in1953 and its confirmation in 1973.

the policy of the British/Australian Queen notto be involved in Australian constitutionaldisputes.

the continuing role of the Queen to formallyappoint the Australian Governor-General.

the ceasing of the practice of the issue of letterspatent by the monarch to the Governor-General.

Is the monarch British orAustralian?A central aspect of the case of those Australianswho support an Australian republic, is that themonarch, currently Queen Elizabeth II, is Britishand that the monarchy is a British institution.During the 1999 referendum campaign theAustralian Republican Movement put it this way:

"In 1999 Australia is a mature, independent

democracy. Yet our highest office is still held by

the British Monarch. It's time we had a Head of

State who is one of us".

Monarchists, on the other hand, argue that themonarchy is now an Australian institution. Theysay that over the past century and more themonarchy has become an Australian tradition andthat this has been formalised by the creation of thetitle Queen of Australia. They deny that there areany remaining legal links between Australia andBritain: "All legal links with Britain were cut in1986 with the passage of the Australia Act throughboth Australian and British Parliaments".

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This dispute became an issue in the process ofdeciding on the referendum question to be put tothe Australian people. The YES side wantedreference to the creation of an Australian head ofstate and to the replacement of the 'British'monarch. The wording originally suggested by theGovernment made no reference to nationality. TheSelect Committee suggested "Australianpresident" but made no reference to the'Britishness' or otherwise of the Queen. The finalcompromise version was that the officialreferendum question made no reference to thenationality of any of the office-holders.

Discussion:Is the monarchy British or Australian?

Does the Queen serve Australia well?

Does the Governor-General serveAustralia well?

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Should Australia becomea republic?

The group may have already discussed thisquestion before reaching this session! For some it isan emotional issue as people may have strongemotional bonds with the monarchy or with theidea of a republic. Others may wish to considerboth systems, and the alternatives within therepublican framework, and then make a decision.Even when a decision is made it needs to be testedagainst the social realities of Australia at thebeginning of the 21st century and the practicalrequirements needed to achieve change.

People with feelings of loyalty to an existingsystem of constitutional monarchy or to aparticular monarch are often challenged by thosewho have equally strong feelings for change.

However, both sides also have to take account ofdetail. Sometimes details are used to make it appear

that change is impossible. At other times theparading of detail is used to impress andoverwhelm opposition. The debates of the 1998

Constitutional Convention and the 1999 referendum

campaign sometimes reflected these tactics.

Republican modelsIn modern times the term 'republic' has come tomean a state which is governed by office holderselected by constitutional means rather than by ahereditary monarch. There are four basic models ofrepublican Constitution used by democratic

countries today:

The parliamentary executivemodelThis model has a Head of State either elected byParliament (as in Germany) or by all voters (as inIreland). The Head of State is usually called aPresident and has limited powers usually to dowith summoning Parliament. Even popularlyelected ceremonial presidents usually do not takepart significantly in the political life of theircountry as this could create major tensionsbetween the president and elected government.

The Prime Minister is responsible, along with theother ministers, to the Parliament. In effect, theparliamentary executive model would be the onefor an Australian republic if the existing role andpowers of the Governor General were given to anAustralian president, apart from the problem ofthe reserve powers. The German republic may be arelevant model for Australia because a federalsystem of government operates in Germany.

The executive presidencyThis is the constitutional arrangement which existsin the United States of America. The president isboth the head of state and head of government.The presidential oath, administered by theSupreme Court is to the American people wherethe sovereignty of the American Constitution andpolitical system lies. The president is popularlyelected but is not a member of congressthehouses of Parliament. Secretaries of Statetheequivalent of senior ministers in a parliamentarysystemare appointed by the president fromoutside the congress. Neither the president norcabinet are directly responsible to congress.

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Effective government depends upon the presidentbeing able to persuade Congress to pass laws(including financial appropriations) to implementthe policies he has for the running of thegovernment and country. Congress, which has afixed term and cannot be dissolved by thepresident, may in certain circumstances, pass lawsthat the president may oppose.

Discussion:Which model, if any do you thinkwould best suit Australian conditions?Are there other alternatives?

At the Constitutional Convention fourrepublican models were considered:

The 'McGarvie' model which wouldreplace the Queen with a council ofthree 'elders' with constitutionalexperience who would appoint thepresident on the prime minister'sadvice. However, the presidentcould be dismissed by the primeminister.

The Australian Republic Movementmodel, adopted with some revisionsby the convention and laterincorporated into the 1999referendum bill, which includedpopular nomination to Parliamentwhich would endorse by a twothirds majority a single nominee.The president could be dismissed bythe prime minister and parliament.

The parliament would choose threenominees to be voted on by theAustralian electorate. Dismissal by asimple majority of Parliament.

The direct nomination and electionof an Australian president.Dismissal would be by a majority ofthe House of Representatives.

The hybrid executive modelThis system operates in France. It divides powerbetween a president, who is popularly elected for aseven year term and a prime minister. Thepresident appoints a prime minister from theNational Assembly (Parliament) who then becomesthe head of government, but who is responsibleboth to the National Assembly and to thepresident. This arrangement has existed since areferendum ushered in the Fifth Republic in 1962.It was intended to provide a balance betweenexecutive and legislative power.

In practice, the powers of the French president arevery considerable, and exceed the power of theAmerican president. The seven-year period ofoffice makes it easier for a French president tosurvive periods of unpopularity, and the powers ofthe president in relation to the National Assemblyhave no equivalent in the United States.

The collective executive modelThis system operates in Switzerland, and some ofthe founding fathers wanted to adopt it, alongwith the concept of constitutional changeapproved only by referendum, in 1901. TheParliament elects an executive council which inturn elects its president who acts as head of state.Once a council is appointed, it remains in office for

the term of a parliament.

Discussion:Do members of the group think thatAustralia should become a republic? Ifso, why?

In view of the defeat of the 1999referendum when, if ever, would it beappropriate to hold another one.

What factors should govern when,rather than if, Australia should becomea republic?

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Choosing a Head of State:popular electionOpinion polls show that a significant majority ofAustralians favour the direct election of the headof state of a new republican government. As aconsequence many observers believe that the1999 referendum would have passed if therepublican model on offer included direct electionof the president.

This seems to be a simple and sensible demand formaximum participationdemocracyin theselection of the head of state. Advocates claim thatit would lead to a rejuvenation of popular respectfor the constitutional and political system. Theyargue that international examples, such as thedirect election of the Irish president, show that it isworkable. Furthermore, they claim that, in ageneral sense it would 'open up' the politicalsystem. They argue that this is much better than asystem in which the government of the day, themajor political parties and the parliamenteffectively appoint one of their own, one of theirpolitical 'mates'.

At the time of the 1999 referendum the advocatesof direct election did not have the option of adirect election republican model (although twodirect election models were considered at theConstitutional Convention). That could be a taskfor the future. Some advocates also see such aconstitutional change as being a precursor to otherchanges, such as a Bill of Rights or abolition of

the Senate.

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However, some powerful arguments have opposedsuch popular or direct election, and supportinstead election by a 'super-majority' of membersof Parliament. The main arguments against directelection are:

1. it would create a powerful new political office,with great potential for future conflict betweenthe president and the prime minister

2. direct election guarantees the introduction ofparty politics to the office of president. Thecapacity of the Head of State to act as animpartial and uniting force 'above politics',would be lost

3. to ensure that an elected president only hasnon-executive powers, the powers of thepresident would have to be codified.

It can be argued both that the cause of democracyis best served, or that it is undermined by directelection of a president!

Discussion:Consider all the pros and cons ofhaving a directly elected president.What do members of the group think?Would you like to vote for yourPresident? Do you think that is a moredemocratic arrangement? Does itmatter?

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Heads of State andHeads of Government

The positions of Head of State and Head of

Government may be held by the same person ortwo different people. In a constitutional monarchythe positions will always be held by two differentpeoplethe king/queen and prime minister. In arepublic they are sometimes held by the sameperson (eg USA) and sometimes by two differentpeople (eg India, Ireland and France). Australia'sPrime Minister regularly attends CommonwealthHeads of Government Conferences. (SeeBackground document 4 for an interesting treatment

of these terms).

An example of the confusion that can existoccurred as Australians were considering whichAustralian office-holder should open the SydneyOlympic Games: the Queen, the Governor-Generalor the Prime Minister. The Olympic Rules specifythat the Games shall be opened by the Head ofState, but few in Australia wished the Queen toofficiate. At first the Prime Minister, the Head ofGovernment was to perform the function but itwas eventually decided that it would be moreappropriate if the Governor-General, the Queen'srepresentative, did so.

Discussion:The contemporary Australianconstitutional debate has focused onthe Head of State question. Somepoints raised have been:

what should the position of head ofstate be called?

should the head of state's currentpowers be changed?

should the head of state's powers be'codified'that is clearly writtendown in the constitution ?

should the Australian head of statebe required by the Constitution tobe an Australian?

should there be specificrequirements for someone to beconsidered for the position e.g. thoseapplying to members of Parliamentas detailed in section 44 of theAustralian Constitution?

should the Australian head of statebe only a ceremonial figurehead?

do we need a head of state at all?

what necessary functions do theyperform?

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Steps for changeThere are two alternative approaches to change.Each necessarily culminates in the processes laid

down in the Constitution for constitutional change.

The first is the approach that was followed in thelead-up to the 1999 referendum. Recall the steps.

First a model is agreed upon through themechanism of a constitutional convention.

Then a bill is passed by both houses ofparliament.

Then, under the arrangements outlines insection 128 of the Constitution, a referendumis held.

Should the referendum have been passed theAustralian Constitution would have beenchanged.

The alternative approach begins with a differentapproach to finding agreement on a model.

First a plebiscite (that is, a non-binding vote ofall citizens) is held on whether, in principle,Australia should become a republic.

Then a second plebiscite is held to determinewhich republican model is proposed.

Then a bill is passed by both houses ofparliament.

Etc. etc (as above).

Optional extraactivities:Contact a delegate to theConstitutional Convention from yourstate/territory and invite them to comeand meet with the learning circle totalk about their experience, how theyvoted, and why. Contact a member ofeither the Australian RepublicanMovement or Australians forConstitutional Monarchy (or one of theother groups) and invite them to comeand meet with the learning circle totalk about their experience of the 1999referendum campaign.

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What about theAustralian States?

Each Australian state has a Head of State appointedby the British monarch, and they exercise the formal

powers under each separate state constitutionalarrangements. However, if Australia was to becomea republic, it would be logical, though not necessary,

that the states would also make that change. Somestate constitutions require that a referendum be heldto make such a change, while in others the stateparliament could do it.

It is interesting that the Australian CapitalTerritory manages without its own head of state.Proximity to the Governor General has allowed itto use that person, acting under the authority of itsSelf-Government Act, to dissolve the LegislativeAssembly if it were found to be 'conducting itsaffairs in a grossly improper manner'.

Modern communications would allow theAustralian head of state to act to overcome anyconstitutional deadlocks and perform the moreroutine tasks of dissolving parliaments, issuingwrits for elections and calling on the electoralvictors to form a government. Even in Australia'sgreatest constitutional crisis in 1975 the GovernorGeneral himself did not read the declarationdissolving parliament. His staff could performthese functions under his direction by travellinginter-state.

Discussion:Should the states also becomerepublics? What is the position of yourpresent state or territory government onthis question? What would happen ifthe Commonwealth became a republicand one or more of the states did not?

Should the states continue to haveGovernors? What should they be calledand how should they be appointed?Should they be Deputy presidents?

Is it likely that a state would wish tocontinue as a monarchy even though theCommonwealth of Australia did not?

How is each state constitutionchanged?

How many states would have to have astate constitutional referendum?

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Should there be a Head of Stateor President?

There has always been a school of opinion that theGovernors General (and the Queen) are merely anexpensive appendage of the political system,hosting and attending state banquets and cocktailparties with the diplomatic corps or other VIPs, oropening fetes and art exhibitions. As thesefunctions are performed at considerable publicexpense without any apparent benefit to theordinary taxpayer, then it is argued the wholeinstitution should be scrapped.

The first Governor General, Lord Hopetoun,resigned in April 1902 because the FederalMinistry would not agree to increase his salary of10,000 pounds a year by an extra 16,000 pounds.He had been given an extra 10,000 pounds in hisfirst year of office because he argued he could notmeet the expenses of hosting the Duke of York andhis entourage during the inauguration of theCommonwealth. This apparent extravagance waslampooned in The Bulletin whose anti-British andanti-aristocratic opinions were shared by manyAustralians of that era.

Gazing at the spacious grounds and residence ofthe Governor-General at Yarralumla from theviewing platform is a standard part of the itineraryof tourists visiting Canberra. The Governor-General's other official residence is AdmiraltyHouse on the shores of Sydney Harbour.Occasionally there are open days at theseresidences when citizens may walk around thegrounds. Others visit the Governor-General'sresidences to receive honours, awards and otheracknowledgments of their achievements and to beentertained. Foreign diplomats and governmentrepresentatives are regularly invited to the Vice-regal residence. The Governor-General regularly

travels within and outside Australia to perform hisceremonial duties which are announced in thevice-regal column of the daily press.

Apart from these ceremonial duties the Governor-General performs constitutional duties whichinclude attending Executive Council meetings,swearing in of Commonwealth Ministers andattending the opening of parliament and formallydissolving it before an election.

The costs of maintaining this element of Australiangovernance in 1998/99 was $8,443.000. Some

suggest this is a high cost to maintain a largelyceremonial position. This was the logic of the NewSouth Wales government's decision to limit therole of their current governor, Gordon Samuels,who maintains his own career and lives in his ownhouse rather than Government House. Heperforms his constitutional duties and attendslimited ceremonial functions. This arrangementhas considerably reduced the costs of the position.

Discussion:Can Australia do without a head ofstate completely? If so, how could theconstitutional responsibilities of thehead of state be discharged?

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The republic and governance

If Australians agree that an Australian republicshould be established, then there are severalquestions that should be discussed:

1. Should the President be appointed or popularlyelected?

2. Should the parliamentary system be changed tohave an executive president like the UnitedStates of America or France?

3. If we maintain the current parliamentarysystem and continue to draw the PrimeMinister from the Parliament how will a personbe nominated for the position of president? Willa president be elected by a popular vote, or bythe votes of members of Parliament only?Should the state Parliaments have some say inthis choice?

4. How long should a president hold office, andon what conditions could they be removed andby whom?

5. Should the president have the same powers asthe current Governor Generalboth as outlinedspecifically in the Australian Constitution andthe reserve powers, or should he or she be aceremonial figurehead only? If the reservepowers are passed on to the new president,should they be clearly written in theConstitution?

6. Should Parliament have the power to remove apresident? If so, on what grounds?

7. Since the passage of the Australia Act in 1986,State governors are appointed by the Queen onthe recommendation of state premiers. Shouldthe president appoint state governors of anystates who choose not to become republics?

8. Should the move to a republic be used as anopportunity to radically modify the AustralianConstitution and include a Bill of Rights? If so,what should be included in such a Bill ofRights?

Discussion:Consider the above list of questionsand choose one or two to discuss. Howdid the 1999 ConstitutionalAmendment Act answer thesequestions?

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Rewriting the ConstitutionThe 1999 Referendum Act included the detailedchanges to the Constitution necessary for Australiato become a republic. They are included in theofficial Australian Electoral Commission booklet.See Resources.

Opponents of the Act focussed attention on the69 changes proposed. Defenders of the Act arguedthat most of them were minor drafting changes inwhich the words "Queen" and "Governor-General" were replaced by the word "President"(see, for example Sections 1 and 5).

Discussion:Examine the 1999 Act.

What types of changes are involved?

Are most of them minor or majorchanges?

Can you point to examples of minorand major changes?

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The 1998 ConstitutionalConvention and the1999 Referendum

The ConstitutionalConventionAfter two weeks of debate from the 2nd to 13thFebruary 1998 (available on the Internet at

Hansard http://www.dpmcgov.auiconvention),the Constitutional Convention supported, inprinciple, the change to a republic (89 votes for 52

against and 11 abstained), and by a slimmermargin voted in favour of a particular republicanmodel (73 for, 57 against, 22 abstained).

This model, which was based on the AustralianRepublican Movement's model, had the followingfeatures:

popular nomination by State and TerritoryParliaments, local government, communityorganisations and individuals or persons whoare Australian citizens qualified under theAustralian Constitution to be a member of theHouse of Representatives

short-listing by a confidential governmentcommittee for consideration by the Prime

Minister

the Prime Minister presents a singlenomination, seconded by the Leader of theOpposition to a joint sitting of Parliament

approval of a single nominee by a two thirdsmajority of Parliament

the president would have the same duties asthe Governor General

the term of office would be five years

the president could be dismissed by the PrimeMinister, ratified within 30 days by a simplemajority of the House of Representatives.

The Prime Minister, John Howard, declared thatthis constituted the 'clear view' of the Conventionand it then recommended to him that the choice tobecome a republic based on this model should beput to the Australian people in a referendum. Thatmotion was carried 133 for, 17 against with 2abstaining.

Consequently, John Howard declared on the sameday that if his government won theCommonwealth election due before April 1999 areferendum would be held in 1999. If passed, thatwould enable Australia to become a republic on 1st

January 2001.

The 1999 RepublicReferendumThe Republic Referendum was held on 6November 1999, approximately 21 months after theConstitutional Convention. The republican modelput to the people was the one recommended bythe Constitutional Convention. Ultimately thereferendum was defeated by a margin of 55% to45%. In the intervening period there wereconsiderable developments.

The Coalition government, led by the PrimeMinister, John Howard, was re-elected on 18thOctober 1998. Upon re-election the government

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made clear that the proposed referendum wouldproceed. A little later the Prime Minister also

announced that the republic referendum would beaccompanied by a referendum to consider a newPreamble to the constitution.

Two processes were involved in arranging for therepublic referendum. The first was to pass thenecessary legislation after public consultation. Thegovernment released an Exposure Draft of theConstitution Alteration (Establishment ofRepublic) 1999 Bill on 9th March. On the same dayit released the Exposure Draft of the PresidentialNominations Committee Bill 1999, a bill which

would set in place the mechanism, by which acommittee would be selected to advise the PrimeMinister on nominations for president. Publicresponses were invited to both draft bills.

The government also set up a Joint SelectCommittee on the Republic Referendum to adviseit on the two bills. This committee asked for publiccomment, held public hearings and submitted itsreport in August 1999 prior to the parliamentarypassage of the bills during that month.

The second process involved supporting publicinvolvement in, and structuring the conduct of, thereferendum campaign. In February 1999 thegovernment announced an initiative that had neverpreviously been undertaken. It would fund 'YES"and "NO" committees, composed often of members

chosen from among Constitutional Conventiondelegates (both nominated and elected), with agrant of $7.5 million each to undertake the task ofputting the YES and NO cases to the public. This

would assist in promoting community debate andin ensuring that all relevant issues were canvassed.The YES committee, chaired by ARM head,

Malcolm Turnbull, included members of theAustralian Republican Movement and otherrepublicans. The NO committee, chaired by ACM

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head, Kerry Jones, included members of theAustralians for Constitutional Monarchy and othermonarchists as well as two prominent directelection republicans, Ted Mack and Clem Jones

from the Real Republic group.

The government also allocated $4.5 million to apublic education programme. This was to be afactual, neutral programme explaining the currentconstitution, the referendum process and theConstitutional Convention's recommendedrepublican model. It would be timed forSeptember in order to precede the campaignproper. It was to be overseen by an advisorycommittee chaired by Sir Ninian Stephen, theformer Governor-General.

The referendum itself would be conducted as usualby the Australian Electoral Commission. Theirresponsibilities included, as well as organising thevoting itself, the distribution of the official 'YES' and

'NO' cases to all voters during October. Theseformal statements, officially the responsibility ofthose parliamentarians who supported and opposedthe referendum bill when it passed the parliamentin August, were prepared by the 'YES' and 'NO'committees. See Yes/No. Referendum 1999, Your official

referendum pamphlet in RESOURCES KIT.

The referendum process was controversial frombeginning to end. Each side saw advantage to theother in various aspects of the proceedings. Thewording of the long title of the bill, which wouldbecome the referendum question itself, was hotlydisputed in ways that gave clues to the campaign

to come.

The government's original proposal was: "A Billfor an Act to alter the Constitution to establish theCommonwealth of Australia as a republic with aPresident chosen by a two-thirds majority of themembers of the Commonwealth Parliament". Thiswas found wanting by the Joint Select Committee

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which recommended: "A Bill for an Act to alter theConstitution to establish the Commonwealth ofAustralia as a republic, with the Queen andGovernor-General being replaced by an Australian

President". Eventually the compromise bill spokeof: "...a republic with the Queen and Governor-General being replaced by a President appointedby a two-thirds majority of the members of theCommonwealth Parliament".

The government's public education campaign wasalso criticised by the YES committee for allegedlymisrepresenting the extent of constitutional changeinvolved. The public advertisements presented thechanges to the constitution as more dramatic thanthe proponents would admit to. See Referendum, 6,

November 1999: Which way do you want to go? in

RESOURCES KIT.

Finally, the official cases and the campaign thatfollowed revealed almost no common groundbetween the two sides. First, there was little or noagreement about the status quo. In particular, therewas no agreement about the role of either theQueen or the Governor-General. Secondly, therewas considerable difference of opinion about the

consequences of the proposed republican model.The official cases can be found in the AEC

pamphlet. See RESOURCES KIT.

The primary argument for the YES case was theneed for an Australian head of state. As the officialcase said: "Becoming a Republic simply meanshaving an Australian as Head of State instead ofthe Queen'. This argument was blunted by the NOrebuttal that the Governor-General rather than theQueen was the Australian head of state. TheQueen, so this argument went, was somethingelsethe sovereign. As Australians had held theGovernor-General's position since 1965 the effect

of this argument was to weaken the YES case. In

the words of the official NO case: "Our

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constitutional Head of State, the Governor-General, is an Australian Citizen and has beensince 1965".

The NO case, led by its republican members, alsofocussed on the republican model. Two elements oftheir argument appear to have been especiallyeffective. The first condemned the model as the"politicians republic". According to the official Nocase: 'The proposed republic gives more power tothe politicians, at the expense of the people. Weshould not hand over any more power topoliticians hammering out deals in secret behindclosed doors". This argument tapped into anti-politician sentiment in the community. It appearedno answer to say that the Governor-General isrecommended (effectively appointed) by the PrimeMinister. What's more, said the NO advocates, thegovernment of the day would effectively be able todismiss the president without effective safeguards:'easier for a Prime Minister to sack the Presidentthan his or her driver".

The second element emphasised 'Say No to thisrepublic', implying that there was a better model.perhaps a directly elected president, that might beput to the people at a subsequent referendum. Theofficial No case described the model as "aninadequate and undemocratic republic" and a"third-rate republic".

On 6 November Australians voted to reject thereferendum proposal by a margin of 55% to 45%.The referendum was defeated in all six states. Onlythe voters of the ACT voted in favour of theproposal. At the same time a second proposal, for anew Preamble to the Constitution, was rejectedeven more comprehensively (61% to 39%). See 1999

ReferendaSummary of Results in RESOURCES KIT.

Immediately various explanations were advancedto explain the result. What can be said is that,when the voting is broken down by House of

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Representatives electorates according to region,party status and socioeconomic status, then onlyamong metropolitan voters and voters of higheconomic status was there a YES vote.

The immediate future of the proposal for arepublic is unclear. The only concrete step that hasbeen proposed has come from the Leader of theOpposition, Kim Beazley, who has committed theLabor Party to holding a series of plebiscites to testpublic opinion. If he were successful at the nextfederal election, due in October 2001, a plebisciteto test whether Australians favour a republic inprinciple would follow, perhaps at the time of thefollowing elections,

The major community organisations, such as ARMand ACM, are planning to maintain theirorganisational capacity to participate in whatevereventuates. Many people in parliament and in thecommunity are still interested. The issue of therepublic remains alive.

Discussion:What were the main features of thecampaign?

Were both sides of the argument putfully and fairly?

What did the main groups and politicalparties do?

Did you feel properly informed?

How would you like a future campaignto be conducted?

Are there particular features that youwould like either added or deleted?

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End of sessionGather all sessions guides and resourcestogether so that another learning circle can usethe kit.

Make arrangements to complete and return theevaluation form to ALA.

Finalise arrangements of the group iscontinuing on the Kit TwoThe Three Spheresof Government.

Consider the possibility of some other learning

activity in the area of civics and citizenshipeducationeither as a learning circle orindividually.

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Background document 1The development of the constitutional monarchy

in Great Britain and Australia

The development of a constitutionalmonarchy in England, and later Great Britain,was a process that lasted many centuries, andis still continuing. The role of the monarchy inGreat Britain, and its corollary, the unelectedHouse of Lords, are actively debated, andcurrent polls show about 27% support for arepublic in Great Britain. Ironically, followinga bitterly fought Civil War between the Royaland Parliamentary forces which the latterwon, England had a period of republicangovernment from 1649 to 1660 after theparliamentary leaders had tried and executedKing Charles 1 for high treason andestablished the Commonwealth under theleadership of Oliver Cromwell. Although themonarchists gained control again in 1660their constitutional powers were slowlylimited by a series of agreements, especiallythe Bill of Rights in 1689.

The Bill of Rights was not a progressivestatement of citizens' rights, but a statementof the rights of Parliament to share powerwith the monarch after they had forcedJames II into exile and invited the morecompliant Dutch aristocrat William of Orangeto be King of England. It also established theascendancy of the protestant religionconstituted in the Church of England. Thecentral political contention was the right ofthe monarch to summon and dismissParliament and their exercise of executivepower both when Parliament was sitting andwhen it was not. Monarchs had maintainedarmies, declared wars, introduced taxes andplayed a determining role in the legal system.Slowly these powers were shared betweenthe executive (monarch and ministers),

legislative (Parliament) and judiciate (courts)areas of government, but the highest courtremained the Privy Council, drawn from theHouse of Lords.

During her long reign from 1837 to 1901,Alexandrina Victoria (1819-1901), the onlylegitimate child of the Duke of Kent, thefourth son of George the Third, achieved ahigher degree of popularity for the Crownthan had her Hanoverian predecessors. Sheremained intimately involved with thebusiness of government for over sixty years,especially after the death of her cousin andhusband Prince Albert of Saxe-Coburg Gothain December 1861. It was during her reign,and partly because of it, that WalterBagehot's famous work The EnglishConstitution was published and both it andthe Queen exercised great influence over theFederation fathers in the British colonies inAustralia. The British Crown had never beenso stable and continuously popular, theBritish system of government never sopraised when compared to the politicalturmoil of 19th century Europe. If furtherproof was required of the superiority of thissystem, despite the slums of her greatindustrial cities, Great Britain ruled a hugeEmpire stretching around the globe, herQueen was also Empress of India and herpreeminent Royal Navy sailed where itwished and did what it wanted. It was theLand of Hope and Glory.

Being part of the British Empire influencedthe outlook of the residents of the Australiancolonies at the time they were consideringfederation into an Australian nation:

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1°)ackground document Ithey felt their defence was secured by theRoyal Navy and they were obliged toassist the mother country in her militaryactivities

the success of the British Empire andBritain's parliamentary system was asource of pride; and

the population of the Australian colonieswas overwhelmingly British with many ofthe residents being British-born migrants.

An Australian as Head of StateFew doubt that constitutionally and legallythe reigning monarch of Great Britain (aslong as he or she is a legal heir or successorof Queen Victoriaa requirement of thePreamble to the Australian Constitution) isthe Australian Head of State. The Britain andNorthern Ireland and Australia and manyother places, declares this on her InternetHome Page. (http://www.royal.gov.uk)

However, it was recognised by the framers ofthe Constitution that maritimecommunications with Great Britain wasdifficult and slow in 1900, althoughtelegraphic contact had been possible withthat country from Australia with the heroiccompletion of the overland telegraph linefrom Adelaide to Darwin in 1872. That linelinked with a submarine cable from Javawhich was already in telegraphiccommunication with Europe. One of its firstuses was to send a telegram from WindsorCastle to Adelaide confirming theknighthood of Charles Todd, the SouthAustralian Postmaster-General who hadsupervised the Overland telegraph project.Thirty years after federation, the telephoneused for domestic services since 1880, wasused by Prime Minister James Scullin to makethe first international phone call from

Australia.

So although Windsor Castle was not far fromthe British Houses of Parliament, thesituation for Australia in 1900 ensured thatthe practical activities of dissolvingparliament, issuing writs for elections,announcing the results of elections,attending Executive Council meetings andselecting Ministers from the newly electedParliament fell to the Queen's representativein Australiathe Governor General.

Initially there was no argument that this rolewould be filled by a Briton. Queen Victoriachose John Adrian Louis Hope, 7th Earl ofHopetoun, a Scottish aristocrat who hadimpeccable imperial qualifications and hadpreviously been Governor of Victoria from1889 to1895. He had been educated at Etonand the Royal Military College at Sandhurst,England, and after graduating he heldvarious positions in England, including lord-in-waiting to Queen Victoria. He sailed,along with the Duke of York (later to be KingGeorge V), to Australia to represent hisQueen at the proclamation of the federationof Australia, to choose the firstCommonwealth ministry and to call andsupervise the first election for the FederalParliament and its subsequent opening. Heimmediately gave the infant Commonwealthits first constitutional crisis.

This was called the Hopetoun Blunder. Hesent for William Lyne (1844-1913) thePremier of the senior colony of New SouthWales and consistent opponent toFederation, to form the first CommonwealthMinistry, but Lyne could not find enoughsupport. After he returned his commission,Edmund Barton, a notable Federation Father,was commissioned to form a government,which he did and thus became Australia'sfirst prime minister. The Earl of Hopetoun

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Background documentaction immediately raised questions aboutthe inter-relationship of Imperial officials,local politicians and the use of the GovernorGeneral's executive powers granted undersection 61 of the new Constitution.

British monarchs continued to chooseGovernors-General without reference to theAustralian government until 1930 whenPrime Minister James Scullin vigorouslyadvocated that the then monarch, George Vobserve the agreement reached at the 1926Imperial Conference, that an Australian,(Sir) Isaac Isaacs be appointed as GovernorGeneral on the advice of the Australiangovernment. Isaacs was appointed. Althoughthere were many more British Governors-General after him, since the appointment ofRichard Casey as Governor-General in 1965an office he held until 1969, only Australianshave been appointed to the position.

This trend has meant that, during the 1999referendum campaign some monarchistsclaimed that our Governor General is theAustralian head of state and further, thattherefore there was no need to change theAustralian Constitution.

These developments mirror the evolvingindependence of Australia from Great Britainin the conduct of her international affairs.Upon Federation, in 1901 Australia wasregarded as a subordinate part of the BritishEmpire, and although she was capable ofproviding her own government in domesticmatters, she would follow the lead of theBritish Government in international affairs.This meant that Australia did not start itsnew national life with a foreign minister,followed Great Britain into two world warsand various non-military treaties and did notratify the Statute of Westminster of 1931,which gave the self-governing countries of

the British Commonwealth power to runtheir own external affairs, until 1942.

After the end of the Second World War in1945 the movement towards greaterindependence for Australia made steadyprogress. Australians ceased to be Britishsubjects and became Australian citizens withthe passing of the Australian Nationality andCitizenship Act in 1948. From 1964 Australianstravelled overseas using Australian rather thanBritish passports. With the entry of GreatBritain into the European EconomicCommunity in 1966, Australia had to diversifyits markets and looked more to the MiddleEast and the Asian-Pacific region. The growthof a distinctively Australian film industry andother developments in the arts, including theopening of the icon of the Australianlandscape, the Sydney Opera House in 1973,all helped to move Australia to being a self-consciously independent nation.Constitutionally the suspension of appeals tothe Privy Council in two stages in 1968 and1975 and affirmation of the High Court as thehighest court in the Australian federal legalsystem and the passage of the Australia Act in1986 confirmed this process. Some wouldargue that the final step would be theproclamation of an Australian republic.

Unlike another country formed from Britishcoloniesthe United States of AmericaAustralia has been spared the drama of aWar of Independence and a civil war. Someargue that as a result there is a weakerdegree of national consciousness. Anzac Dayis our cultural equivalent, and it is regardedby many as the birth of the AustralianNation. However, it does not satisfy others,for Australians were fighting as part of theBritish Empire, in campaigns decided by theBritish Government and under thegeneralship of British officers.

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Background document 1The Australian Constitution refers to theGovernor General in many clauses and itgives that person a pre-eminent position inthe Australian federal political system.Section 61 states: "The executive power ofthe Commonwealth is vested in the Queenand is exercisable by the Governor Generalas the Queen's representative, and extendsto the execution and maintenance of thisConstitution, and of the laws of theCommonwealth." Although this, and manyother clauses of the Constitution give theGovernor General specific and considerablepowers, the incumbent also has reservepowers which rely on constitutional traditionand relate to situations like deadlocksbetween or even within Houses ofParliament.

It was these reserve powers which the thenGovernor-General, Sir John Kerr, acted onwhen he dismissed Gough Whit lam on11th November 1975. Immediatelyafterwards he appointed Malcolm Fraseras Caretaker Prime Minister and thendissolved both Houses of Parliament.

He sought advice privately from, amongstothers, Sir Garfield Barwick, Chief Justice ofthe High Court (1964-1981), member of thePrivy Council and previously a Liberal PartyMinister for External Affairs, but he soughtthat opinion from him as a legal colleagueand not as reflecting the position of theHigh Court. Many would argue that thesereserve powers are not explicit and are thesubject of interpretation and they should becodified in the Constitution. Someconstitutional lawyers argue they should not,and even cannot, be codified, as deadlocksituations cannot be predicted. Others saythey can be, or that such important powersshould not be in the hands of a singleperson, especially as they may not be trainedin constitutional law.

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Background document 2An Australian as Head of State?

The Australian Republican Movement, thelargest republican group, has used thisslogan. Clearly a British monarch is not anAustralian, so if this aim was achieved, thenAustralia would have to become a republic.The fact that Australians have beenGovernors-General since 1965 hascomplicated this argument.

Some arguments against this proposal are asfollows:

the current arrangement recognisesAustralia's historical links to Great Britain

a Head of State who is visiblyindependent of the Australian politicalsystem is a guarantee against politicalextremism, even dictatorship, in Australia

it would be costly to change theConstitution

that the current system has worked wellsince its inception and therefore shouldnot be changed

that the Governor-General is, in fact, theAustralian Head of State, although theAustralian Constitution does not say so.

Some arguments in favour of this proposalare as follows:

as the Australian Head of State is QueenElizabeth II of Great Britain, and theposition will pass to her successors, noAustralian can ever become Australia'sHead of State

Australia when travelling in othercountries as she is also the Head of Stateof Great Britain. This compromises herability to be an advocate of Australianinterests, especially if they compete withBritish interests:

that Australia is in effect an independentcountry with an anachronisticConstitution which needs to be changedto have an Australian as its Head of State

that the change would not mean leavingthe Commonwealth of Nations, as manymembers are republics (eg India andSouth Africa) or not competing in theCommonwealth Games

there would be no need to considerchange to either the Australian flag ornational anthem to achieve an AustralianHead of State

there would be no need to make majorchanges to the Constitution as theAustralian Head of State could have thesame powers as the Governor-Generalholds under the current arrangements

that Great Britain is now geographicallyand formally part of Europe through theEuropean Union and Australia is part ofthe AsiaPacific region.

Can you add to these lists?

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that although the Queen of Great Britainis also Queen of Australia, she onlyperforms that function when in Australiaor Great Britain and does not represent

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Background document 3Case studyThe Dismissal of a Premier, New South Wales, 1932

The 1920s and 1930s were turbulent times inAustralia's history. The end of the First WorldWar in 1918 was followed by the repatriationof many Australian troops from thebattlefields of Europe and the Middle Eastwhere they had built, at the high cost of60,000 dead, a reputation for toughness andreliability. But they also returned to acountry which not only glorified them, butlooked forward to social reforms which thefour years of war had interrupted.

In New South Wales the first Laborgovernment of John Thomas (Jack) Lang(1876-1975) from 1925-7 governed in thatmanner. Lang, a watchmaker's son born inCentral Sydney, who started sellingnewspapers when he was seven, enterednight school at 17, established an auctioneerand real estate business in Auburn when hewas 20. He was elected to the NSWParliament in 1913, was State Treasurer from1920-22 and was elected leader of the NewSouth Wales Labor Party in 1923.

His first government restored the 44 hourweek, abolished fees for secondary schools,introduced child endowment and widows'pensions twenty years before theCommonwealth acted in this area followingthe 1946 referendum, liberalised workers'compensation, established the NSW IndustrialCommission and Government Insurance Officeand instituted universal suffrage in localgovernment elections. It was one of the greatreforming governments in Australia's history.(See Australian Encyclopaedia vol. 6 pp.59-60).Before Lang's return to the Premiership ofNSW in 1930 a new player had entered thestage of NSW politics.

King George V (1865-1936) had selectedSir Philip Woolcott Game CB KCB GBE to beLieutenant Governor of New South Wales.Of course, this appointment had been madeunder the state Constitution of New SouthWales, but the powers and responsibilities ofthe states' Governors with respect to theirstate government were the same as theAustralian Governors-General to theCommonwealth Government. Of course,these included the 'reserve' or 'prerogative'powers of the Crown.

Game was a man of the British Empire. Hereceived his education at Charterhouse, aprivate school, and the Royal Academy,Woolwich, from which he was commissionedas an officer in the Royal Artillery in 1895. Heserved in the British Army in South Africa in1901 and in France during the First WorldWar being mentioned in dispatches on bothoccasions and receiving DSO in 1915. Hebecame Chief of Staff of the Royal FlyingCorps from 1916 and commander of the RoyalAir Force in India from 1922-23. He wasappointed Governor of New South Wales in1930 and held the post until 1935.

At the time of his arrival economicdepression had affected the Australianeconomy. Unemployment had soared,governments were in shock and no solutionswere clear. Lang's Premiership wascontentious.

Lang had convinced Game to support hisplan to abolish the Legislative Council ofNew South Wales following Queensland'slead of 1921. The legislation to carry thisinto effect had not been passed when inFebruary 1931 Lang announced his plan to

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Background document 3deal with the state's financial problems. Thisplan centred on withholding interest onBritish loans and reducing interest paymentson domestic loans. On 13 May 1932 Gamedismissed Lang and his Cabinet after theyrefused to pay the Commonwealth NationalParty government, led by Prime MinisterJoseph Lyons, money it claimed. Lang, ofcourse, had the confidence of the LowerHouse, the House of Assembly of New SouthWales, so many felt that Game had exceededhis prerogative powers by dismissing Lang.However, at an election held a week laterLang and his party were defeated.

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Background document 4Heads of State and Heads of Government

James Hacker, the television series Ministerhas been briefed by his private secretaryBernard Woo ley and departmental head SirHumphrey Appleby on the impending visit ofthe President of Buranda and the need forthe Queen to travel from Balmoral Castle inScotland to London to meet him, Hackergoes on:

This surprised me. I'd always thought thatState Visits were arranged years in advance.

I said so.

'This is not a State Visit,' said Sir Humphrey.'It is a Head of Government visit.'

I asked if the President of Buranda isn't theHead of State? Sir Humphrey said thatindeed he was, but he was also the Head ofGovernment.

I said that if he's merely coming as Head ofGovernment, I didn't see why the Queen hadto greet him. Humphrey said that it wasbecause she is the Head of State. I couldn'tsee the logic. Humphrey said that the Headof State must greet a Head of State, even ifthe visiting Head of State is not here as aHead of State but only as Head ofGovernment.

Then Bernard decided to explain. 'It's all amatter of hats,' he said.

'Hats? I was becoming even more confused.

'Yes.' said Bernard, 'he's coming herewearing his Head of Government hat. He isthe Head of State too, but it's not a statevisit because he's not wearing his Head ofState hat, but protocol demands that eventhough he is wearing his Head ofGovernment hat, he must still be met by... .'I could see his desperate attempt to avoidmixing metaphors or abandoning hiselaborately constructed simile 'the crown, hefinished in triumph.

From Anthony Jay (1983) 'Yes Minister.

Diary of James Hacker MP'. BBC. London

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Background document 5Notes on the history of Australian Republicanism

The republican debate was imported into thenewly founded British colony of New SouthWales by Irish convicts who had foughtagainst the British in Ireland. Some saw theCastle Hill convict uprising as the firstrepublican outburst in Australia, but theuprising was suppressed and there was noother violent anti-government protest untilthe Eureka uprising by the miners of Ballarat,Victoria in 1854.

In the meantime the republican movementhad gained some respectability with the workof John Dunmore Lang and the establishmentof the republican Australia League. His bookFreedom and Independence for the GoldenLands of Australia, published in 1848 argued,rather than fought for, an independentAustralian republic.

The attempt by Henry James O'Farrell toassassinate the second son of Queen Victoria.Prince Albert, Duke of Edinburgh at Clontarfin Sydney on the 12th March 1868, attractedmore attention to the republican cause inthe Australian colonies, but its obviousconnection with the continuing problems ofthe British occupation of Ireland did little toelevate the cause of republicanism amongstnon -Irish Australians and indeed led to asurge of imperial loyalty.

From the 1880s newspapers like The Bulletin,The Worker and The Boomerang all supportedthe republican cause and Henry Lawson'spoetry called for the 'Republic of the South'.

In 1887 the Republican Union was foundedin Sydney by George Black, a veteran ofEureka and in 1888 the Republican Leaguewas formed. In the same period the

Australian Secular Association (which hasevolved in to the Australian RationalistSociety) was promoting atheism,republicanism, birth control, seculareducation and law reform to all who wouldlisten. There seemed a chance that Australiawould not only become a republic, but afederal republic. But the colonial politicianswere not republicans and the movementitself was a minority activity although theRepublican Union was represented at theBathurst Federation Convention in 1896.

The public debate largely dissolved until 1959when the Australian Republican Party wasfounded in Melbourne after the 1956Olympics, when some people reacted to theplaying of God Save the Queen whenAustralians were being awarded their medals.

More significantly, the publication in the 1960sof Geoffrey Dutton's book Australia and theMonarchy and Donald Home's The LuckyCountry rekindled a debate which hascontinued to now. Home said,... "to someAustralians of 50 years ago... the radicalposition then was to be anti-British to developan Australia nationalism and to dream of anindependent Australian republic".

The political events of the 1975 dismissal ofPrime Minister Gough Whit lam by Sir JohnKerr put the republican debate into concreteterms and led to detailed examination of theConstitution. In the 1980s the ConstitutionalCommission recommended a number ofchanges although stopping short of callingfor a republic.

From 1991, with the formation of theAustralian Republican Movement in Sydney

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Backgmund document 5and the work of author Tom Keneallyespecially his book Our Republic published in1993 the republican movement gainedstrength. With the appointment of aRepublican Advisory committee (to bechaired by Malcolm Turnbull) by the thenPrime Minister Paul Keating, and hisannouncement of his support for itsrecommendations in June 1995 that Australiabecome a republic by 2001, the republicanmovement had reached a level ofrecognition and popular support that madeit a major player in Australian politics. Theissue had to be addressed at national level.

This was done at the 1998 ConstitutionalConvention. At the time of the elections forthe elected delegates to the convention, in1997, a wider variety of republican opinionbegan to emerge. Although the AustralianRepublican Movement polled 30% of the voteand elected the largest number of delegatesother republicans were elected including anumber who were committed to popularelection of the president. While they were in aminority at the convention they were buoyedby public opinion polls that showed that amajority of republican Australians wanted todirectly elect the president.

From then until the November 1999referendum republicans were dividedbetween those who supported a presidentchosen by the parliament and those whopreferred a president chosen directly by thepeople. During the campaign, the lattergroup, led by Ted Mack and Clem Jonescampaigned for a NO vote. Ultimatelyrepublican disunity meant defeat.

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Background document 6Dismissal of a Prime Minister, Commonwealth of Australia, 1975

The most recent constitutional crisisoccurred in Australia on 11th November1975. On that day the Governor-General.Sir John Kerr, dismissed the Prime Minister,Gough Whitlam, and installed MalcolmFraser in his place as Caretaker PrimeMinister. At the same time the Governor-General called an election for 13thDecember 1975. At that election theCoalition government led by Fraser waselected with a resounding majority.

These events were an important backgroundto discussions of an Australian republic in the1990s and, in various ways, they played apart in the Constitutional Conventiondebates and the Republic Referendumcampaign. The dismissal of the PrimeMinister raised the question of the powers ofthe Governor-General (see BackgroundDocument 1) and the relationship betweenthe Governor-General and the PrimeMinister. In a general way these events arethe background to the discussion of thecodification of the powers of the president ina republic. In the particular case of the 1999referendum they informed debate about theprocedure for dismissing the presidentembodied in the legislation.

The 1975 crisis was the culmination of thethree years in office of the Whitlam Laborgovernment elected on 2nd December 1972.They were turbulent years as a reform party,out of office for 23 years, attempted toinstitute a wide range of changes quickly.The focus of the tension lay in therelationship between the government, with amajority in the House of Representatives,and the Senate majority controlled by the

opposition. In May 1974 the governmentheld an early double dissolution election inorder to pass bills held up in the Senate and,if possible, to gain control of the Senate. Inthe quest for the former it was successful ata joint sitting of the two houses, but in thelatter unsuccessful at the election. After theelection numbers were equal in the Senateso that both the government and theopposition lacked the necessary majority topass legislation.

By the time of the governments budget inAugust 1975 the government had lost itspower to pass its legislation and theOpposition had gained the numbers to blockSupply. Two Labor senators had departed,one through death and the other, LionelMurphy, through elevation to the HighCourt. In both cases non-Labor Stategovernments had refused to appoint Laborsenators to replace the two departures.

The Opposition, now led by Malcolm Fraser,who had replaced the former Liberal leader,Billy Snedden, in May 1975, refused to allowthe supply bills to pass through the Senate.The Prime Minister advised the Governor-General that the principle of responsiblegovernment meant that he should act onlyon the advice of his Prime Minister. TheOpposition leader declared that the federalprinciple meant that the government wasresponsible to both houses of parliament notjust the House of Representatives. As thegovernment could not guarantee supply itshould resign.

Eventually the Prime Minister advised theGovernor-General to dissolve the Senate andcall a half-senate election in order to resolve

--Tire Governanceof Australia - Kit 1 Session154

Backgmund document 6the crisis. Instead Sir John Kerr chose todismiss the Prime Minister. The Queen wasnot involved in this decision and, whenasked to intervene by the Speaker of theHouse of Representatives, declined to do so.

The constitutional issues at the heart of the1975 crisis, such as the relationship betweenthe two houses of the parliament, themethod of filling casual Senate vacancies andthe powers of the Governor-General, havebeen considered in subsequent attempts atconstitutional reform. Both theConstitutional Convention in the later 1970sand the Constitutional Commission in the1980s did so. Only the question of fillingcasual Senate vacancies was resolved, by areferendum in 1977.

The other two issues remain. Senate reformhas been particularly alive, because of thecontinuing inability of the government partyto gain the majority in the Senate.Resolution by reducing the powers of theSenate remains unlikely. In the 1999referendum campaign attention was drawnto the position of the Senate because themodel gave it no role in the dismissal of apresident (while having an equal role in theappointment process). This anomalyweakened the YES case because it failed tosatisfy those who worried about a weakeningof the Senate's role and a consequentincrease in the powers of the Prime Minister.

The powers of the Governor-General were tobe transferred to the president in the 1999republican constitution. In the minds ofsome critics this was vague andunsatisfactory. Supporters of the modelcould see no problem with this idea. But

codification of the powers of the presidentwas attractive to others, especially if a futurepresident was to be directly elected.

The events of 1975 were also featuredduring the campaign because the YES casechose to feature the main protagonists PrimeMinister Gough Whit lam and OppositionLeader Malcolm Fraser in its mediacampaign. Their support of the YES case wasmeant to address specifically the stability ofthe new system and its ability to stand thestrain of a constitutional crisis. It also wasportrayed as an example of bipartisansupport for the republic. Although thisintervention was widely criticised insubsequent commentary, because by usingtwo former politicians it played into thehands of the NO case, it was an echo of 1975in 1999.

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Background document 7The Constitutional Preamble

Preamble defeated at the1999 ReferendumWith hope in God, the Commonwealth ofAustralia is constituted as a democracy witha federal system of government to serve thecommon good.

We the Australian people commit ourselvesto this Constitution:

Proud that our national unity has beenforged by Australians from manyancestries;

Never forgetting the sacrifices of all whodefended our country and our liberty intime of war;

Upholding freedom, tolerance, individualdignity and the rule of law;

Honouring Aborigines and Torres StraitIslanders, the nation's first people, fortheir deep kinship with their lands and fortheir ancient and continuing cultureswhich enrich the life of our country;

Recognising the nation-buildingcontribution of generations ofimmigrants; mindful of our responsibilityto protect our unique naturalenvironment;

Supportive of achievement as well asequality of opportunity for all;

And valuing independence as dearly asthe national spirit which binds us togetherin both adversity and success.

Discussion:Why does Australia need a newconstitutional preamble?

How should one be drafted?

What do you think of the proposed 1999preamble?

What would you like to see included in anew constitutional preamble?

The critics of this preamble were concernedabout both the process by which it waswritten and its substance. It was writtenquickly with much less public discussion thanhad been the case for the republic question.It was very much the Prime Minister'sPreamble. There was also unresolved disputeabout a number of aspects, includingrecognition of Aboriginal and Torres StraitIslanders, the rights of women and thereference to God. Some also saw the secondreferendum question as a distraction fromthe main issue, although others saw it as apotentially more interesting question.

The new preamble grew out of a resolutionof the Constitutional Convention. Early in1999 the idea was taken up by the PrimeMinister who, together with the poet, LesMurray, prepared a draft. With someamendments this draft was released forpublic consultation in March 1999. Reactionwas mixed and the Opposition parties wereopposed to it. But eventually Prime MinisterHoward won the support of the AustralianDemocrats through involving Senator-electAden Ridgway in the drafting of the wordsabout Aboriginal and Torres Strait Islanders.

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Background document 7The proposed preamble was then passed byboth Houses of Parliament.

Very little campaigning was devoted to thisquestion beyond the official Yes and Nocases. Late in the campaign John Howardand Aden Ridgeway attempted to focuscommunity attention on the issue withoutsuccess. The question was defeated by 61%to 39%. No state or territory voted YES.

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