Friday, 12 December 2003


Labor leader Mark Latham's processes for an Australian republic will fail before it gets off the ground.
Mucking around with "indicative plebiscites" is a dangerous game to play when dealing with matters that should be addressed only by s128 of the Australian constitution. There are two things that Mr Latham would be wise to consider before going down this path.

Firstly, there is an aspect about the conduct of a plebiscites that should be considered carefully. That is, if a plebiscite shows that a majority of Australians wish to have a republic, Latham's Labor could be faced with the prospect of their republic being rejected at a subsequent referendum. This situation could occur because an indicative plebiscite to give the government approval to proceed with a referendum may only be passed by the smallest of majorities i.e. 50.01%. However, a referendum itself, which will also require a majority of states to approve, may not be endorsed. This would present a predicament of Gilbertian proportions to the rest of the world as well as embarrass those who seek the establishment of a republic. 

Noting that all of the 8 referenda passed to date have achieved more than 54.38% Australia-wide, 4 additional proposed referenda, which achieved more than 50% overall, did not gain the necessary majority of states in each case. Sustained polling on the republic issue to date doesn't appear to guarantee endorsement by the Australian people. While it is acknowledged that a referendum could be passed with the smallest of margins it may require that each of the 6 states approve the referendum. Historically, this seems an unlikely event.

Another and more sinister scenario is that if a plebiscite indicates that a majority of Australians support the general concept of a republic then constitutional change could take place without the will of the Australian people. In his book "DEMOCRACY choosing Australia's republic", the late Richard McGarvie correctly asserts that: "With the power from the Australia Acts, the Commonwealth Parliament, by Acts supported by the state Parliaments, can amend the provision in the Statute of Westminster that precludes it from amending the Commonwealth Constitution , the covering clauses or the preamble".

Clearly, and with the "moral" support of a successful plebiscite, the combined Australian parliaments could alter the Australian constitution to convert Australia's current stable form of government to that of a republic without further consulting the Australian people. This may not seem so crazy if Latham's Labor wins the next federal election; that could see all of the Australian states and the Federal government under control of Labor. It should also be remembered that the Australia Acts were, principally, a child of the Hawke Labor Government. There is nothing in law that prevents constitutional change in this manner.

Australians should be very wary of any plebiscite that seeks opinion on any proposed constitutional change. See "Is Our Constitution Safe?" for further reading on this subject at

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Wednesday, 29 October 2003


The Prime Minister's options for constitutional changes to the Senate will fail in a heartbeat. Both of these options have some major deficiencies.

Firstly, it would require the people to give up a power that they currently have in the Constitution to the Government of the day. This in itself is likely to ensure that the referendum fails.

Similarly, it would remove a large chunk of the Senate's power as it would no longer have the ability to disagree with government legislation.

Finally, if either of the proposals was approved, it would not always guarantee to solve a deadlock because these options are dependent on the number of Government members and Senators at any given time. It is probably reasonable to assume that, with the current Senate arrangements, and when the numbers of the major parties in both Houses are close to equal, the more frustrating and less likely it would become for governments to get their legislation through the system!

The Prime Minister's options just fiddle at the edges. There is only way to fix the ongoing Senate problem and that is to reduce the number of Senators without reducing the number of members of the House of Representatives while retaining a nexus between both Houses.

The Constitution Alteration (Parliament) 1967 Referendum, had it been successful, would have broken the nexus entirely which would have allowed the Parliament to increase or diminish the numbers in both Houses independently of one another. A minimum number of 10 Senators and 5 members for the original States would have been entrenched in the Constitution. This proposed change gained an overwhelming NO vote in all States except in New South Wales where voters agreed to the change with 51.01% in favour. Failure was probably due to the fact that the people probably saw that this would have reduced their constitutional powers in that the nexus would have been abandoned.

The only way to fix the problem in the long term is to:

  1. Reverse the nexus to make the House of Representatives the controlling agent in lieu of the Senate,
  2. Set the number of people in each electoral division to be, as nearly as practicable, 80,000 - a figure that the arguments for change to the Senate was based on and which eventually led to the Representation Act 1983 which provided for 12 Senators for each of the original States, and
  3. Set the number of Senators to be, as nearly as practicable, one quarter of the number of members in the House of Representatives.
That way, the numbers of both Houses would grow automatically and incrementally with population increase and would not need any further massaging by our elected public servants for the foreseeable future. This is more likely to be endorsed by the people than any other option; it will also fix the Senate numbers problem caused by the ease at which candidates can become elected to the Senate at a dissolution. Additionally, the government would not have to wait on Senate approval to get such a Constitution amendment Bill to be passed and presented to the Governor-General for submission to the people as S128 of the Constitution provides for such deadlocks in the Government's favour.

Further reading on this proposal can be accessed in the the document titled "Senate and Sensibility" located at " ".

Notwithstanding the aforesaid, any change is unlikely to take place unless there is genuine will from all of our Federal elected public servants to make change. Much will depend on whether or not our Federal elected public servants are able to place the Australian national interest well ahead of any selfish or political ideology. But if nothing is done, all we can expect is more of the same or an increasing chance of the Senate becoming even more contentious than it is now!

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