05.05.06
The Copernican Model and the states
Peter Carden investigates the implications of republicanism for the States and discovers how the Copernican paradigm is not only respectful of state independence; it could give states a major role in defining the Presidency.
My aim is to give the Copernican model a legislative framework that is both practical and generally acceptable by the States and the electorate. The model simply requires the replacement of the Queen with an elected President. This is an elegant concept if for no other reason than it would allow the States to continue to share with the Commonwealth the one head of state.
The fact that the Queen is presently head of state of all the States as well as the Commonwealth is a valuable feature of the present system, worthy of preservation but often overlooked, as it was in the model presented in the 1999 referendum. Perhaps the reason was the perceived difficulty in preserving this feature in the context of the candidate republic models then available.
None of them could be said to be sympathetic to State sensitivities. For example a Presidency defined in the Commonwealth Constitution carries overtones of ‘ownership’ of the President by the Commonwealth. This does not go down well where the independence of the States is still an issue.
Each State cherishes what independence it still possesses having been created independently long before the Commonwealth was ever thought of. Opinion among prominent constitutional lawyers as to whether the States would ever overcome such prejudice includes the extreme of ‘never’.
All this presents a challenge that I have been happy to take up. It would be a sad day indeed if the States rejected the Copernican model simply because it was not State-friendly. And it would be a sad day if the nation missed the opportunity to unify all its legal parts under the one true ‘President of Australia’.
It is worthy of note that an outcome of the Queensland Constitutional Convention held at Gladstone in June 1999 was general agreement that the States would keep their Governors upon a change to a republic. So although the Copernican model requires the Governors to be kept, it is in fact merely building on the status quo.
In favour at the Convention was a proposal to mimic the republic model about to be put to the people i.e. the governors were to be turned into mini non-elected presidents. The only thing to be decided was the method of appointing the Governor in the absence of a Queen or President to do the job (on advice of the Premier). But the referendum failed. This of course means that the whole debate about an appropriate republic model needs to be rerun for each State because the issue for a State is virtually the same as it is now for the Commonwealth.
The Copernican paradigm neatly sidesteps all this by providing a ready replacement for the Queen enabling existing arrangements with the Governor to continue.
In addition the States would stand to gain other advantages. Provided the constitutional changes were appropriately drafted the States would be able to take part in decision-making that affected the Presidency. Certainly they could provide candidates for the election of President and participate in their review. However it has to be accepted that the only place the Presidency can be defined is within the Commonwealth Constitution. So we must find a way to make this acceptable to the States despite the misgivings described above.
One problem is the amendment rule section 128 of the present Constitution. Under this section any individual State can be over-ruled on an issue that may vitally concern it. Such an issue could be its relationship with its own head of state the President.
My solution is to amend the Constitution (by referendum of course) so that a new ‘book’ is added with its own amendment rule. The sections of the new book, entitled ‘the Constitution of the Presidency’ could only be amended in future by a referendum in which a majority of voters in each State agreed.
In the spirit of section 128 of the present constitution this would be more than enough for Commonwealth approval so this amendment rule would effectively give each State and the Commonwealth the power of veto on any proposed measure that it did not want.
On the other hand changes that were unanimously agreed upon could be adopted, even cases where a polity wanted a specific change to its arrangements with the President that did not affect other polities, although admittedly to do this might be arduous, involving, as it would, referenda in States that had no interest in the question being put. All the provisions of the Constitution of the Presidency need to be written in the context of equality between each State and the Commonwealth.
Section 128 would continue to apply to the ‘old book’ but only to the old book, which would in fact be the present Constitution of the Commonwealth with references to the Queen replaced by references to the President.
This should hopefully provide a degree of certainty to the Presidency that would satisfy the States. But it also means that the powers of the Presidency once defined would be difficult to alter. The powers therefore need to be defined unambiguously in the first place. I suggest that the President’s powers and functions be simply defined as those enjoyed by the Queen just prior to the date on which the amended constitution becomes law.
A very important consideration is that a Copernican model should be so constructed that the States would be released from any immediate obligation to share the Presidency should the model be adopted by referendum. Each State must be given the option of dealing with the Republic as it determines and without pressure to meet a dead line. A State may decide to continue with the monarchy or become a republic independent of the Constitution of the Presidency. Thus, while the Copernican amendment to the present Constitution would provide a defined Presidency, there ready and waiting, it would not assume that it would be accepted. Each State could take it or leave it. Other provisions would take care of matters arising from a late entry.
Because the Presidency is to be shared among the participating polities it is possible that disputes among these polities may arise at some time. Such disputes are currently settled by the High Court and it is proposed that this practice should continue. The High Court may also be relied upon to deal with misdemeanours of the President.
In summary then the Copernican concept offers advantages to Australia as a whole and to the States. To Australia it offers real unity of all polities under one truly Australian President. It offers maximum propensity to win approval in a referendum because it proposes essentially no practical change to the existing system, maintains tried and proved safeguards and gives sovereignty to the people. For the States it respects their rights and independence, allows participation in the one all-embracing Republic and provides easy entry at minimum cost.
Klaas Woldring Said:
June 15, 2006 at 9:10 pm
***The Copernican model looks very Minimalist***
Claims by David Latimer that what is presented as the Copernican Model must be taken with a ton of salt. Copernicus presented a truly radical and correct paradigm of the interpretation of the heavens “beyond the imagination of his fellows”. I am questioning the role of the States in the model, as suggested by Peter Carden. If the effect or objective of the model is to lock the states into a new Minimalist republican constitutional arrangement it is a move in the wrong direction. The option to abolish the States and replace them with a superior structure ” a most important and necessary paradigm shift” must remain open, not blocked. The notion that what is left of the “cherished independence” of States should be respected horrifies me. It is unrealistic and dangerous. In 1900 the unification of the colonies as states in a federation made perfect sense. Now they are a structural barrier in the way of effective and sound national government.
Fortunately many reformers do favour the creation of a two-tier system of elected government with STRONG local government units. The present States could be replaced by smaller, administrative regions indirectly elected by groups of local councils and/or on some BioRegional principle. Special separate (Greater) City Administrations could be established. The existence of numerous local councils in metropolitan areas is a massive hindrance to effective and efficient city government. This would reduce direct popular elections to two levels: the national and local levels (City and local government in the country areas).
The regions could be grafted onto the local government tier. Already an extensive system of voluntary regional councils exists which could be a base to start from. The savings of such measures have been estimated to be in the order of many billions of dollars (at least $30 billion p.a., Drummond in Hall, 1998; 2002) depending on what model of regional administration is adopted. The need for special regions to ensure representation for sparsely populated outlying areas is acknowledged and should be accommodated. Existing powers and responsibilities of the states would be redistributed between national and regional governing bodies. From previous inquiries the strengthening of local government, both in terms of status, funding and functions, is widely favoured in Australia. In order to effectively extend such functions critical mass needs to be achieved and some smaller local government units would need to be amalgamated.
The problems of Australian federalism have been anticipated by many even by some of the founders, eg. Deakin in 1902. The centralisation of Income Tax powers, in 1942, during WWII, had all the potential to more rapidly shift the balance of powers to the federal government, which is exactly what has happened. The classical text in this regard is that by Greenwood (1946), The Future of Australian Federalism, which was reprinted in full 30 years later in 1976. In the Preface to the second edition he wrote:
“The central argument of the book has not been damaged but has indeed been strengthened by time. That argument was fundamentally in line with Deakin’s famous prediction in 1902 that the Commonwealth would increase in stature, in financial dominance, and in the determination of national priorities. All this has come to pass. The Australian community has acquiesced in the trend, despite the fact that it regularly refuses to support formal constitutional amendments which would further consolidate Commonwealth power”.
These is considerable recent evidence that many Federal Ministers and Coalition MPs today, in the Howard Government, are frustrated with the limitations that the Federal Constitution places on what they regard as desirable national policy. When conservative leaders are talking about stronger National Government an interesting new dimension in this debate has arrived. While it would seem that the end of federation is nigh what would replace it? What are the options? Although this may seem a secondary issue it is nevertheless an extremely important secondary question, one which must colour the primary decision to discard the existing structures. This option must not be locked out! It should be part of a strategic plan for constitutional change.
***Conservative support for stronger powers at the national level ***
In a booklet which I compiled for the umbrella activist group “Beyond Federation” 20 recent issues indicating the growing need for ending federation were recently demonstrated, as follows:
1. Bushfire Control – more national and more local
2. Liquor Licences
3. Registration of names
4. Taxation
5. Health
6. Education, Primary, Secondary, Tertiary
7. Industrial Relations
8. Electricity grid – Power
9. Law
10. Control over ports
11. Control over airports – Security
12. Decentralisation
13. Keeping them on the farm
14. National security
15. Justice
16. Water Reform and Distribution (eg Qld NSW, Murray
Darling system)
17. Grants Commission
18. Distribution of GST
19. COAG dissatisfaction
20. Transport
The brochure refers to Health Minister Tony Abbott’s speech to a Young Liberals’ conference early in 2005. He said that “federalism was not working” and pushed for the federal control over hospitals.
In March, 2005 PM Howard said:
‘”Australia would be better off without state governments”, “…as he strongly backed Treasurer Peter Costello’s demand that the states abolish $2.5 billion in business taxes. Speaking on radio about the federal-state tax deadlock, Mr Howard said “it would be better if Australia had no state governments” – adding that it was “unrealistic” to wish for that now. “If we were starting Australia all over again, I wouldn’t support having the existing state structure,” he said. “I would actually support having a national government, and perhaps a series of regional governments having the power of, say, the Brisbane City Council”‘ (Australia’s most powerful local government).
In the health area a real brawl ensued with both New South Wales and Queensland. There is a strange mix of responsibilities: the Federal government runs Medicare, the Pharmaceutical Benefits Scheme and the bulk of Aged Care. But the states run hospitals.
Mr. Howard’s view is that “a single set of national laws on industrial relations is an idea whose time has come”. The Federal Government has used its (disputed) constitutional powers over corporations to push the IR changes.
Several federal-state tax issues have been in the limelight. The dispute between the federal government and the states over GST revenue escalated with state governments threatening to withdraw from several important federal-state agreements.
The incursion into all levels of education by the federal government has never been greater than in recent years and there is more to come. The Howard’s Government SES system of allocating federal funding to primary schools has been heavily criticised as favouring private schools, some of which are not at all in need of such moneys. When it announced a $31 billion funding plan in June, 2004 it made it conditional on every schoolyard having a flagpole and parents getting a “plain language” report on children’s progress. The socalled Nelson reforms in tertiary education have reduced the states to insignificant administrative agencies. The federal government’s reduction of funding of tertiary education, with all kinds of strings attached eg. to industrial relations, and as to what courses should be taught, demonstrate an unpredecented growth in influence which has been widely criticised by education unions and university administrators. The latest round concerns voluntary student unionism. After all, the universities are the state’s legal responsibilities. Similarly, the skills shortages in technical education have resulted in the federal government setting up a parallel system of VET and TAFE with IR strings attached and moves away from public sector involvement.
These conservative Commonwealth’s incursions are NOT a good argument to maintain or re-invigorate the States, even if now convenient for the State ALP and the Union Movement. Reformers need to look well beyond the use of federation as a political football. But this does indicate that we need to combine the abolition of the States with national electoral reforms that will create diverse representation in Parliament, abolish the two-party tyranny, a review of the dysfunctional aspects of the Westminster system and create better government. There is a package here of reforms that are links in a strategic approach. The piecemeal tinkering must end because otherwise there may well be another 100 years of constitutional stagnation.
The abolition of the states requires major constitutional change which is long overdue. Why shy away from that? They are an anachronism. We are kidding ourselves if we were to lock the states into a Minimalist Republican model.
Klaas Woldring, Ph. D.
Assocate Professor (ret).
Convenor, Republic Now!
References.
Greenwood, Gordon (1946/1976) The Future of Australian Federalism, University of Queensland Press
Woldring, K. (2005) Abolish the States – A collection of extracts of recent statements by politicians, articles by journalists, academics and citizens, Occasional publication by author.
Woldring, K. (2005) AUSTRALIA – Republic or US Colony? Lulu Press, http://www.lulu.com/content/156234
Woldring, K. (2006) How about OUR Republic? BookSurge (forthcoming)
PeterCarden Said:
June 24, 2006 at 1:18 pm
As the writer of the article that has sparked Klaas’s criticisms I feel I should respond, be it ever so briefly. Locking in the states in a way that would hinder further constitutional development, could not have been further from my mind.
Many far-sighted people have similar views to Klaas’s i.e. it would be better to replace the states by some smaller regional-based entities. But one indeed has to be far-sighted, since public opinion at this time in Australia’s history does not seem to be on side. It is up to Klaas and his friends to persuade the electorate that the changes he advocates should be made. The constitutional changes that I advocate continue to allow the people to decide by referendum.
The difference between Klaas’s advocacy and mine is that I am acting on what I perceive is the current mood of the people whereas Klaas acts on what he hopes it will be some time in the future, dare I say the distant future.
Peter Carden
DavidLatimer Said:
June 25, 2006 at 6:00 pm
Firstly, let me agree with Peter’s comment, but allow me to assume for one proverbial minute that Klaas’s proposals are adopted.
If so, we would find abolishing the states and local government and replacing both with regional government has nothing to do with Peter’s argument, because this would merely result in a second-tier of government under a different name.
That new second-tier would exhibit the same face to the Australian government as the states currently do. The issue of autonomy would be the same. The issues of responsible government and reserve powers would be the same. Most critically for republicans, the Queen would still be there!
Let’s put it this way: If one were to replace the word state with the word regional government then Peter’s article would continue to make sense under Klaas’s proposals. Whether you agree with Klaas or not, the Copernican Paradigm remains the most appropriate way to establish an Australian Head of State elected by the people.
James F. Stack Said:
July 13, 2006 at 5:07 pm
Note: This is part of a comment originally received via email to the Editor Copernican Gazette. Read the full comment in this forum under the article “Becoming Sovereign”.
There is another suggestion in your gazette that I am absolutely opposed to. The one I refer to is that made by Peter Carden stating that the states should not be bound by the results of any referendum on the question of whether or not we should become a Republic. Given that an affirmative vote from all of the states and territories is unlikely, such a provision would almost certainly result in the breakup and therefore the destruction of Australia as a united nation. Our present constitution requires that all states are bound by the results of a referendum and that condition must be preserved at all costs. One of the greatest freedoms that we enjoy in this country is the ability to travel the length and breadth of our land without once having to change currency, without having to go through immigration and customs, without having to have a passport or a visa and without ever being confronted by armed border guards. Frankly, I am shocked that any rational, thinking Australian would even consider risking such a thing, even for one second, far less seriously offer it as a model to be adopted. Let me assure you, there is no one in this country more committed to an Australian Republic than I am, yet I would rather, much rather see us remain with the monarchy than risk seeing our nation destroyed as a result of such an ill-considered proposal.
DavidLatimer Said:
July 13, 2006 at 6:40 pm
Most of the criticism directed towards the Copernican Paradigm has been from those who want to abolish the states. For some reason, they see the Paradigm as objectionable because it works well under our existing federal arrangments.
As I have tried to explain, the Paradigm would work just as well under a system of regional governments.
The idea of armed guards patrolling state boarders simply because federalism is allowed to continue makes no sense.
Peter Carden Said:
July 15, 2006 at 4:17 pm
James Stack rightly defends the notion of unity among the polities of Australia. Moreover he has touched upon a fundamental difficulty faced by all would-be inventors of viable republican models. Witness their pondering. Should the model simply ‘go for it’: in one fell swoop coerce the States into unity under one President? Or should one decide on the other extreme: ruffle the least feathers, require only the Commonwealth to become a Republic and leave out the States? One would choose the latter extreme in the belief that it would provide the maximum chance of the referendum being carried. The 1999 referendum model is a good example of this category because, if it had been passed, each State would have had to work out its own response, which could legally have included remaining monarchist. This would surely have been the ultimate calamity in the eyes of James: disunity, disunity, disunity. But I for one did not notice anybody anticipating such dire consequences. Was James there protesting? If he wasn’t, then surely his harsh words for this Copernican model are unjustified.
So, simply put, the modellers choice lies between two extremes: the ideal model of coerced unity, arguably the most unpopular; or, alternatively, the least unpopular ‘Commonwealth only’ model. This Copernican, while passionately embracing the spirit of the former, has chosen something in between these extremes in the hope that it will have a fair chance of being acceptable to the electorate. I do not propose to coerce the States into anything they might not yet be ready to embrace but at the same time I leave the door wide open so that the promise of unity under one Australian head of state is clearly visible and available for the taking.
Copernican Republic Forum » State Constitutions Said:
November 26, 2006 at 5:29 pm
[...] Carden, P. The Copernican model and the states, in Copernican Gazette, 2006 [...]