1999 ANNUAL LECTURE Framing a New Republic Barry Jones AO, FAA, FAHA, FTSE, FRSA, FAIM Delivered at Rydges Lakeside Hotel, Canberra 3 November 1999 Australian Academy of the Humanities, Proceedings 22, 1999 Framing a New Australian Republic hen I was invited to give the Annual Lecture, 1 was troubled by the wtiming, only three days before polling day for a Referendum in which I expected to be heavily committed. I am grateful that the Academy agreed to my theme. There are at least eight intertwined elements in the debate about the Republic-history, law, politics, philosophy, psychology, mythology, experience and common sense. The last two are not academic disciplines, but all overlap with your Symposium theme, Humane Societies. What are the necessary elements which make up a humane society? 1 suggest the following: Ã Democracy-that is, both the practice and the ethos, in sharp contrast to populism. * Transparency. * Scepticism. * Access and Equity to Education, Information, Health Care and Social Security. * Gender equality. * Fairness-but recognising that equality and uniformity are not synonymous, and that some people have special needs. # Temperate, reasoned political debate, without appeals to fear or prejudice. Ã Tolerance (which in Australia is sometimes confused with indifference). * Compassion - extending beyond the borders of one's own nation, to issues such as slavery and child labour. * Freedom of speech (perhaps even as far as the US Second Amendment). * Protection of personal privacy. * Freedom of Information legislation. Ã Restraint on the exercise of power. * Fair elections. Ã Right of dissent-and of oppositions to organise and be heard. Ã Pluralism. Â Inclusiveness (multiculturalism et al). Ã Concept of countervailing power-i.e. corporate power v. trades unions. * No religious or ethnic exclusions. Australian Academy of the Humanities, Proceedings 22, 1999 Annual Lecture 1999: Bar? Jones * Treatment of refugees. Ã Rejection of the death penalty and torture-key litmus test issues. * Independent and fearless judiciary. * Strong university and research community. Ã Treatment of animals-another litmus test issue. ff Promotion of non-economic values. * Preserving the ecology, at a cost. * Balancing short-term and long-term factors. ff Care about the human condition generally. When the Australian colonies evolved their political structures in the 19th century, they were well ahead of the British model. Five Chartist goals were adopted in the colonies long before the United Kingdom: Ã universal manhood suffrage; * abolition of property qualifications for MPs; * equal electoral districts; Ã secret ballot (an Australian invention); ff payment of MPs. The sixth, annual parliaments, has not been adopted anywhere. Inevitably, because of our huge area and scattered population, we adopted a Federal model of government. We never had an established Church, or a hereditary upper house, despite William Charles Wentworth's notorious proposal of a 'Bunyip Aristocracy'. John Dunmore Lang began arguing vehemently for an Australian Republic as early as 1851. After Chartism, we went on with radical reforms of our own: * the eight hour day. Ã votes for women in South Australia and Western Australia in the 1890s, Federally from 1902. (In the UK, women over 30 received the vote in 19 18, over 21 in 1928.) * preferential voting. * compulsory voting. (The last two were linked.) The 1901 Constitution is a static document, notoriously difficult to alter. Of forty-four attempts to change the Constitution by Referendum, only eight have succeeded. But our political practice is relatively dynamic. The Constitution has become increasingly irrelevant as a working document. (Britain has no written Constitution, and in practice, I'm not sure that we have either.) The Constitution makes no explicit reference to democracy and there is no Bill of Rights. However, s. 116 prohibits establishing any religion or imposing religious tests. (This presumably does not limit the operation of the UKAct of Succession 1701, which excludes Catholics from the throne.) Australian Academy of the Humanities, Proceedings 22, 1999 Annual Lecture 1999: Framing a New Republic The tradition of judicial activism is central to our Common Law tradition and goes back a long way. Mr Justice Higgins' Harvester Judgment (1907) is a notable early example. H. V. Evatt, Lionel Murphy and Michael Kirby were also strong judicial activists. In the 1930s the High Court interpreted the external affairs power (s. 51, xxix) broadly to enable the Commonwealth to legislate to implement treaties which covered areas not covered by the original grant of powers by the colonieslstates at Federation. Thus aviation-rejected as a Commonweath power by Referendum in 1937-became appropriate for Commonwealth legislation where Australia was committed by international treaties, such as ICAO. During World War 11, the High Court interpreted the defence power (s. 5 1, vi) as enabling Commonwealth power to expand significantly. The High Court upheld Commonwealth laws on radio and television by a generous interpretation of s. 51, v 'telegraphic, telephonic and other like services'. The Tasmanian Dams case in 1984 was a striking illustration of the validation of legislation based on a Treaty (the World Heritage Convention) which overrode State law. The High Court under Sir Anthony Mason, Sir Gerard Brennan and Murray Gleeson has effected radical legal, political and social change in areas that the political process (including Referenda) would lack the will to achieve. Our High Court paralleled the US Supreme Court in the period after 1953 when Earl Warren was Chief Justice. The Mabo and Wik decisions forced radical legislative changes about native title and ended the legal fiction of terra nullius. Parliament would never have initiated such wide ranging changes and a Referendum would certainly have resulted in a 'No' vote. Decisions by the Federal and High Courts in the MUA dispute with Patricks suggested a judicial commitment to the concept of countervailing power. The High Court has ruled in a number of cases to uphold the principle of freedom of speech, including striking down Labor legislation restricting political advertising, and-in the Theophanous case-determining that politicians are fair game and may not have the defence against libel that other citizens enjoy. In 1999 the High Court ruled that Heather Hill was ineligible to take her seat in the Senate because under s. 44 she owed allegiance to a foreign sovereign, viz. the Queen of Great Britain. The Hill case has barely been mentioned in the current Referendum debate. I doubt if declaring Great Britain as a foreign power could have been carried in a Referendum. There are some issues where Parliamentarians appear to be at variance with community opinion. Two obvious examples are the death penalty and Australian Academy of the Humanities, Proceedings 22, 1999 Annual Lecture 1999: Barry Jones euthanasia, followed by Aboriginal reconciliation and multiculturalism. In Australia the death penalty is simply not on the mainstream political agenda, thirty-two years after the last hanging, despite evidence of strong community support. No major political figure supports it, and its few public advocates include Pauline Hanson, David Oldfield, John Stone and Jim Cameron, a quartet without much else in common. This is an area of striking divergence between Australia and the US. The United States is now the only practising democracy which retains and uses the death penalty and which votes in the United Nations against resolutions deploring execution. No major politician in the US is now prepared to confront community feeling on the death penalty. Michael Dukakis and Mario Cuomo both paid a heavy price for their commitment to abolition. With euthanasia, there is strong community support for the broad proposition of assisted passage for the terminally ill, and clear impatience with politicians who exercised a conscience vote to overturn the Northern Territory's legislation. Neither issue would seem appropriate for a Referendum where inevitably a very complex issue demands a simple, single answer, 'Yes' or 'No'. Polling suggested that after Sir Ronald Wilson's report Bringing Them Home (1997) was published, attitudes towards aborigines actually hardened. The Referendum Problem Referenda are very different from elections. In elections there is always a winner-a candidate, a Party, a Government, sometimes an independent. 'Don't knows' do not, and cannot win elections. But with a Referendum, voting 'Yes' or 'No' means very different things. 'Don't knows' can determine a Referendum result. A 'Yes' vote generally means: 'I have thought about the issue and I agree with the proposed change'. It may also mean: 'My party, or leaders I admire, urge a "Yes" vote, and I follow their lead'. In the current campaign, a 'No' vote could mean several different things: * 'I have thought about the issue and I am a convinced Monarchist' (like John Howard) * 'I have thought about the issue and I am a direct election Republican' (like Peter Reith and Phil Cleary) * 'I haven't thought about the issues' * 'I am confused' Ã 'Normally I vote informal'. Australian Academy of the Humanities, Proceedings 22, 1999 Annual Lecture 1999: Framing a New Republic S. 128 of the Constitution provides that to carry, a Referendum must win approval 'in a majority of the States and a majority of the electors voting'. Thus, even with a popular majority nationally, a proposition fails if, say, three States vote No. It has proved virtually impossible to win a Referendum when any significant interest group is opposed. In March 1937 a Referendum was proposed to give the Commonwealth power to legislate with respect to air navigation and aircraft-a subject not covered in the powers of s. 51. The Referendum won a majority of the popular vote (1.924 m to 1.669 m) but won only two States. Victoria and Queensland voted Yes by large margins, while the other four States voted No. Yes lost narrowly in New South Wales but polled barely 40% in South Australia and Tasmania.