This week Senator Brian Harradine drew attention to Section 128 of the Constitution _ the one that sets out the way the Constitution can be amended.
Senator Harradine is a stickler for reading the words of documents quite precisely. And he is politically very astute. That is why he keeps getting elected as an Independent senator for Tasmania.
The general, woolly perception is that the section goes something like this. “”Federal Parliament passes a law describing how the Constitution is to be changed, laying out the precise words. The proposal then goes to the people for a referendum and must be approved by a majority of people in a majority of states.”
The bit about a majority of people in a majority of states is right, but the earlier bit about the law passing Federal Parliament is not quite right, though it has been the practice in every referendum since federation.
Most people have assumed that referendum proposals must come from the government via the House of Representatives and be approved by the Senate as well.
In fact, Senator Harradine has pointed out, that the Senate can originate a Bill for a referendum and if the House knocks it back twice within six months, “”the Governor-General may submit the proposed law . . . to the electors” in a referendum despite the Reps objection.
I dimly recall writing about this several years ago. That was in the context of listing the powers of the Governor-General which would have to be picked up by whatever head of state we get upon becoming a republic _ one of them being the power to put to the people a referendum question that has passed only one house.
Senator Harradine’s reference opens wider possibilities.
Senator Harradine was suggesting that if John Howard persisted with his Mickey Mouse convention and failed to give people a genuine choice about a republic, the Senate could fulfill the role admirably.
The Senate could have a committee to take public views and then cobble together its own referendum question on changing Australia to a republic. If the Reps knocked it back, the Senate could pass it again and if the Reps still refused, the Governor-General could put the question to the people without getting the agreement of the Reps. That is what Section 128 says.
A couple of questions arise. Would the Governor-General do it? The Section says he “”may” not that he “”must”. What if the Prime Minister advised the Governor-General not to, as John Howard would most likely do in that circumstance?
Would Bill Deane allow the people to decide? Or would he always abide by the Prime Minister’s advice? Would this be an exception to the general principle that the Governor-General follw prime minsiterial advice?
It would put the Governor-General in a difficult position.
But given the Constitution provides for a Senate-inspired referendum without the Reps concurrence, the Founding Fathers must have envisaged the Governor-General acting with some independence from the Prime Minister, because, after all, the Prime Minister controls the Reps. A Senate-only-inspired referendum that also required prime ministerial advice to the Governor-General would have been a contradiction.
Given the Constitution provides for a Senate-only referendum, the Governor-General would be within his rights to put it to the people. In any event, the “”let-the-people-decide” basis for a governor-general’s conduct has a precedent Sir John Kerr’s action in 1975, however dubious that precedent migth be.
Also, Section 128 refers to “the Governor-General” on his own and not “”the Governor-General in Council” which generally means on the advice of the Prime Minister. This also lends weight to allowing a Senate-inspired referendum over Reps and prime ministerial objection.
Perhaps the reason Senate-inspired referendums were contemplated by the Founding Fathers is that the Senate is supposed to be a states’ house and the majority there might not be the same as in the Reps, which is precisely what has happened.
Contrary to Paul Keating’s epithet of “unrepresentative swill”, the Senate often more closely reflects popular will because it is elected proportionately. The party affiliations more closely reflect voting patterns in the Senate than the Reps, so why shouldn’t the Senate be able to propose referendums on it own?
But there is a corollary here. The Reps, too, can determine a referendum question on its own, over the objection of the Senate, and the Governor-General “”may submit the proposed law . . . to the electors”.
It means, of course, Prime Minister John Howard has an ace up his sleeve in the republic debate. After the convention talkfest is over, he could get the Reps to approve what he thinks is the consensus, perhaps some Mickey Mouse version of a republic with the head of state being called Governor-General and even some residual reference to the Crown and certainly no recognition of Aboriginal concerns.
Even if the Senate objected, this would go to the people. Howard could shut the Senate out of the republic debate. Moreover, the possibility of the Governor-General refusing to put the question would not arise (as in a Senate-inspired referendum) because presumably he would follow the Prime Minister’s advice.
Do not be surprised if this stunt is pulled. All the evidence to date shows that John Howard does not want a republic and will use whatever trick he can to put it off, avoid it or defeat it.
And what if the Senate and Reps put up contrary proposals simultaneously? You can bet that the Prime Minister would advise the Governor-General to ignore the Senate and he would follow that advice.
In any event, it always pays to return to the words in the Constitution. Howard may have unexpectedly got the convention he pretended he wanted to have, but there are still many obstacles he can put in the way of a republic.
It seems we have a democratic deficit here. Opinion polls point to more people wanting a republic than not, yet the Government drags its feet. Small wonder the Labor Party wanted to capitalise on that by trying to block the convention so the Government would bury the issue, giving the Labor Party the opportunity to go into the next election as the only party capable of delivering a republic. There would be some votes in that.