The Foundation for National Renewal   The Constitutional Convention of February 1998

Federal Election October 2004: Which Candidates Trust the People?

TRANSCRIPT OF PROCEEDINGS
Monday, 2 February 1998
Page 14

Mrs HAWKE- We all feel a very deep sense of responsibility in being part of this historic Convention. I thank the voters in New South Wales who have given me the privilege of representing them here and the Australian Republican Movement for the opportunity of joining in helping shape Australia's future. The debate about our future belongs to all Australians regardless of political party, country of origin, age or gender. The important task here in this place is to get it right. We must by the end of the Convention give to Australian people a clear picture of what republic means and what it will involve for themselves, their families and our country's future.

No doubt part of our task involves an education process for ourselves and for those we are here to represent. I learned a lot from the Convention election campaign from men and women, young and old, who took the trouble to discuss the republic in the streets and in the shopping malls. Best of all, talking with people confirmed something I had always known in my heart: that we Australians have a very strong sense of belonging to a family- the Australian family. The wonderful thing about Australia today is that this sense of the Australian family, of belonging to one great family, is growing stronger, not in spite of the increasing diversity of our peoples but because of it.

The enrichment of our national and cultural life through immigration goes arm in arm, side by side with a deepening desire for a single and simple expression of our Australian nationhood. The family analogy is relevant to the idea of a republic. In a family the kids change and grow and mature. As parents we judge ourselves and we judge our success by seeing them accept more and more responsibility for their lives. We feel a sense of failure if they do not assert their independence, `leaving the nest' as we used to call it. The kids limit their own capacity to grow and to mature if they feel unable to strike out for themselves.

If we see the idea of the Australian republic in this way, as part of a natural and inevitable development, it is easier to understand why the monarchy of the United Kingdom seems less and less relevant. I travelled to England in 1953 with my passport stamped `British passport- Australian citizen by birth and a British subject'. With due respect to what my grandmother called `the mother country', I feel that Australia is my mother and I am proud and grateful to be her daughter. It is beyond question that most Australians, old and new, young and old, think of themselves not as British subjects but as Australian citizens and Australia is our mother.

Through the focus of Australia as a family, it becomes easier to see why a growing majority of Australians feel that the House of Windsor is inappropriate as the chief symbol of the nation. But that is not the issue. Attitudes change because the world has changed. I am old enough to remember hearing Mr Menzies, as he then was, saying on the wireless, as we then called it, that Australia was at war because Great Britain was at war. Nobody questioned it. In 1939 Australians did not question that we belonged to the British Empire. If those things seemed a permanent part of life only 50 or 60 years ago, how much more 100 years ago when the Australian Constitution was drawn up? Not being part of the British Empire was not even an option for the Australian colonies in the 1890s and Federation in 1901 did mean striking a bargain.

In return for the protection we received from the British Empire, the Australian people gave the empire allegiance. The symbol of allegiance, the Badge of Empire, was the crown of the United Kingdom. In a century of immense change, Britain itself and its role in the world has changed as much as, or perhaps even more than, Australia and our role. But under our Constitution as it stands Australia still owes its national allegiance to the head of state of another country. By saying `another country', I do not want to downgrade for a moment our historic kinship with the people of England, Wales, Scotland and Ireland. It is part of my own family's story. But, unless we are willing to accept that Britain today really is another country with its own future with distinct and separate interests and goals, we diminish our own independence and nationhood, and that means denying the full sense of our belonging to the Australian family.

We are all witness to the marvellous growth and development in our national life. Why don't we match it in our Constitution? Most of us are not constitutional lawyers, but we do have a strong sense of the sort of nation we wish to be and we need a constitution which will protect and nurture us in that great adventure together. It will have to be changed if we want all Australians to be able to declare their simple loyalty and individual allegiance to Australia.

The question of allegiance is at the heart of the meaning of the Australian republic. Until the naturalisation law was changed a few years ago, new citizens of Australia were obliged to pledge their allegiance to the House of Windsor, their heirs and successors according to the laws of the British parliament, just as members of the Australian parliament- the men and women we elect to lead us today- still must do. It is a joy to attend naturalisation ceremonies and see the genuine pride and pleasure of new citizens now that they are able to declare their allegiance to Australia alone. The pledge of commitment now reads:

From this time forward, I pledge my loyalty to Australia and its people whose democratic beliefs I share, whose rights and liberties I respect and whose laws I will uphold and obey.

There could be no better statement of what the Australian republic means.

This land of ours is a powerful land, full of wonders, not to be regarded just as territory to be tamed and subdued but nurtured, respected and loved. The Australian Aborigines have always known that and have revered and cared for the land for thousands of years. Only now after a mere 210 years of our occupation are we learning to do the same. Among us, relative newcomers, as most of us are, with this sense of reverence and wonder, there is also a new sense of belonging not only to a marvellous continent but to a truly Australian family. I do believe that the Australian republic is the next great step toward binding us together as a nation and a family and binding us, our children and theirs to this our land and our home forever. Thank you.

Sir DAVID SMITH- 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 a 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 the security of this constitutional monarchy. I am not about to betray their memory.

In 1988, the Hawke government's Constitutional Commission found that almost 50 per cent of all Australians were unaware that Australia has a written Constitution and that in the 18- to 24-year age group the level of ignorance rose to nearly 70 per cent. In 1994, the Keating government's civic experts group found that 82 per cent of Australians knew nothing about the content of our Constitution.

Our Constitution may be altered only with the approval of the people at a referendum. This is a rare and precious provision in a world where most constitutions may be altered by parliaments and by governments without the consent of their people. If the people are required to give their consent, it must be an informed consent, a consent based on accurate information about what our Constitution says now and an ability to understand and evaluate the various proposals for change. I propose to state some little known facts about our Constitution. Mr Chairman, I seek leave to table a document which records the evidence upon which I rely for these statements of fact.

CHAIRMAN- I do not think you really require leave. The only comment I would make is that statements being tabled cannot be incorporated in Hansard. They become part of the record of the Convention.

Sir DAVID SMITH- I understand that. We are told that we must become a republic in order to assert our independence of Britain. That is not true. The Hawke government's Constitutional Commission included the Hon. E.G. Whitlam as one of its members, and the commission was advised by an advisory committee chaired by the Rt Hon. Sir Zelman Cowen.

One of the commission's terms of reference required it to report on the revision of our Constitution to adequately reflect Australia's status as an independent nation. In its final report, the commission traced the historical development of our constitutional and legislative independence, reported that at some time between 1926 and the end of World War II Australia had achieved full independence as a sovereign state of the world, and concluded that the development of Australian nationhood did not require any change to the Australian constitution. The argument that we need to become a republic in order to become more independent is simply not true.

More recently, the republicans have argued that we must become a republic in order to have an Australian head of state. This argument is also untrue. Legal opinions and political decisions over the past 97 years confirm that Australia has two heads of state: a symbolic head of state in the Queen and a constitutional head of state in the Governor-General, who is clearly an Australian.

Though republicans are agreed that they want to remove the Queen from our Constitution, they are utterly divided and confused over who or what to put in her place. The reality is that the Crown has a most important role in ensuring the stability of our system of government. Behind it lies almost 1,000 years of history and tradition, which none of the several republican models on offer could hope to replicate. Indeed, after seven years of, `It's inevitable,' the republicans are still hopelessly divided over just what `it' actually is.

Under our present system of government, the constitutional head of state is chosen by the government of the day, is advised by the government of the day and may be removed by the government of the day. Nothing could be more democratic or more republican. The role of the Crown in the appointment and removal processes ensures that the Governor-General's allegiance is to the entire nation, not just to those whether in the community at large or in the parliament who voted him or her into office.

In our democracy, election to a public office, as distinct from appointment, carries with it the notion of a mandate with policies to pursue and supporters to be rewarded, and there is no place for such influences on the person who occupies the desk at Government House, Canberra. I have known governors-general who have been deterred from acting or speaking in a particular way simply because they knew they had been appointed and not elected. I most strongly urge my fellow Australians not to surrender this very powerful restraint on what is potentially a very powerful position under our Constitution.

The claim that the Governor-General is our constitutional head of state is not some bizarre theory dreamed up for the purposes of the current debate for it has been so since the beginning of Federation. The Canadian Governor-General, Lord Dufferin, described the Governor-General as a constitutional head of state in a speech he gave in 1873. Paul Keating referred to the Governor-General as our head of state in the very speech in which he announced in parliament on 7 June 1995 his government's proposals for a republic. The media, so intent on pushing for the republic, have been referring to the Governor-General as head of state for over 20 years. Of much more significance than all this anecdotal evidence is the legal evidence for the view that the Governor-General is our constitutional head of state.

In 1900, Queen Victoria signed a number of constitutional documents relating to the future Commonwealth of Australia, including Letters Patent constituting the Office of Governor-General, and Instructions to the Governor-General on the manner in which he was to perform certain of his constitutional duties. In 1901, two distinguished Australian constitutional scholars- Andrew Inglis Clark and W. Harrison Moore, later Sir Harrison Moore, both of whom had worked on the drafting of our Constitution- expressed the view that the Letters Patent and the Royal Instructions were superfluous or even of doubtful legality on the grounds that the Governor-General's authority stemmed from the Australian Constitution and that not even the sovereign could direct him in the performance of his constitutional duties.

In 1922, during the hearing of an application by the state governments for special leave to appeal to the Privy Council from the High Court's decision in the Engineers' case, Lord Haldane, Lord Chancellor of Great Britain and President of the Judicial Committee of the Privy Council, made it clear that he shared the view of our constitutional arrangements in respect of the Governor-General's powers which had been expressed at the time of Federation by Clark and Moore.

At the 1926 Imperial Conference, the Empire's prime ministers declared that the Governor-General of a dominion was no longer to be the representative of His Majesty's government in Britain. The conference further resolved that, henceforth, a Governor-General would stand in the same constitutional relationship with his dominion government and hold the same position in relation to the administration of public affairs in the dominion as did the King with the British government in relation to public affairs in Great Britain.

The 1930 Imperial Conference decided that, henceforth, recommendations to the King for the appointment of a Governor-General would no longer be made by British ministers but by the Prime Minister of the dominion concerned. This decision further strengthened the constitutional role of governors-general and their relationships with their dominion governments.

In 1953, in the course of preparing for the 1954 royal visit to Australia, Prime Minister Menzies had wanted to involve the Queen in some of the formal processes of government in addition to the inevitable public appearances and social occasions. But the government's legal advisers pointed out, as Clark and Moore had done more than 50 years earlier, that the constitution placed all constitutional powers, other than the power to appoint the Governor-General, in the hands of the Governor-General, that he exercised these constitutional powers in his own right, not as a representative or surrogate of the sovereign, and that the sovereign could not exercise any of the Governor-General's constitutional powers, even when she was in Australia.

In 1975 the Commonwealth Solicitor-General, Mr Maurice Byers- later Sir Maurice Byers- gave Prime Minister Gough Whitlam a legal opinion in which he, the Solicitor-General, concluded that the Royal Instructions to the Governor-General were opposed to the words of the Constitution, that the executive power of the Commonwealth exercisable by the Governor-General under chapter II of the Constitution may not lawfully be the subject of Instructions and that this had been the case since 1901.

The dismissal of the Whitlam government later that year was to provide concrete evidence of the correctness of all the legal opinions which had been given over the previous 74 years. The Governor-General Sir John Kerr, a former Chief Justice of New South Wales, did not consult or inform the Queen in advance and he accepted the full responsibility for a decision which was his alone to make.

After the Governor-General had withdrawn the Prime Minister's commission, the Speaker of the House of Representatives wrote to the Queen to ask her to restore Whitlam as Prime Minister. Buckingham Palace replied that the Queen has no part in the decisions which the Governor-General must take in accordance with the Constitution and that the only person competent to commission an Australian Prime Minister is the Governor-General. That reply confirmed, if confirmation were needed, that the Governor-General is indeed Australia's constitutional head of state. Even so, it took another nine years before the matter was resolved by giving effect to the Solicitor-General's Opinion.

On 21 August 1984, on the advice of Prime Minister Bob Hawke, the Queen revoked Queen Victoria's Letters Patent and the Instructions to the Governor-General and issued new Letters Patent. No new Instructions were issued. In 1985, parliament passed a bill, the purpose of which as set out in its long title was to bring constitutional arrangements affecting the Commonwealth and the states into conformity with the status of the Commonwealth of Australia as a sovereign, independent and federal nation. This became the Australia Act 1986.

In 1988 the Constitutional Commission reported:

Although the Governor-General is the Queen's representative in Australia, the Governor-General is in no sense a delegate of the Queen. The independence of the office is highlighted by changes which have been made in recent years to the Royal instruments relating to it.

If there should still be any doubt about the fact that the Governor-General is our constitutional head of state, we have the ultimate confirmation in Prime Minister Keating's statement to parliament on the republic. After confessing that it was impossible to codify the reserve powers of the Crown and the conventions associated with their use by the Governor-General, he admitted that the design, processes and conventions at present governing their exercise by the Governor-General should be transferred to the president without alteration.

Here we see the hypocrisy of the push for a republic. 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 now- nothing 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 letterhead. If such a president would be an Australian head of state, then that is precisely what the Governor-General is now.

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 our constitutional head of state. There is no case for Australia to become a republic.

Senator BOSWELL- Mr Chairman, all of us are proud to be here at this Convention representing the people of Australia, and we have come together for the good of our country with the ultimate aim to determine the best system of government for all Australians. This Convention represents the most democratic process that a government could deliver where all sections of the community have a voice about their nation's future. This Convention is charged with a most awesome responsibility- make no mistake, we cannot afford to make mistakes here this fortnight.

It is not simply about who will be head of state, it is not about what is the most appropriate symbolic response in today's context; it is about how Australia is to be best governed in the future and what system will deliver this. In coming to this decision we must factor in the absolute fundamentals of our present democratic system- the fail-safe democratic way of life that has been built around our constitutional system of government, that is enjoyed and guaranteed to all Australians, that incorporates the essential checks and balances on the exercise of power, and that has been tried and tested under our present system. These safeguards have worked for us for the past 100 years.

The nation's forefathers crafted a unique Australian system that has endured as one of the oldest continuous democracies in the world. Only Britain, the USA, Canada, Switzerland and Sweden have had a longer period of democratic rule. We have today a `made in Australia', truly independent and democratic nation. By means of the Statute of Westminster and the Australia Act, we are completely free of legislative, executive, judicial, administrative or other formal links to the United Kingdom.

In practice, the Queen takes no part in the decisions which the Governor-General must take in accordance with the Constitution. In 1975, the Queen herself declined to intervene in our Australian constitutional crisis. In reality, our head of state is an Australian and always will be, and by High Court decision `sovereignty does not reside in the Crown but ultimately sovereignty resides in the Australian people.'

You do not hear republicans complaining about the way democracy works under our present system. Almost all delegates here would agree that our democratic process not only works well but stands as a truly working model to the rest of the world. Where the differences of opinion lie is in the symbols of our present system and a desire to change the definition of our nationhood by introducing a new symbol.

Some believe Australia must take the final step to nationhood and remove the Queen as head of state when she is also head of state to other nations, or that a modern statement of our nationhood requires an Australian as head of state. But if we allow the debate to be influenced disproportionately at the level of symbolism, if we do not elevate it beyond these current and temporal concerns to the real issues of the safest, most secure system of government for the future of Australians, we are not serving all Australians in making the right decision for our long-term future.

It is for those who wish to change the system to prove beyond all doubt how their new system will function, how it will give all Australians the same certainty, adaptability and stability that exists under the present system. The onus has to be on the proponents of change and the onus must be of the highest order. This Convention must set the standard of proof against any final proposal that is to be put to the Australian people.

The present Australian Constitution and system of government it enshrines has demonstrated a proven and enduring capacity to deal with and adapt to all circumstances over the past 97 years. The Constitution has never presented an impediment to or a restriction on the development and progress of the Australian nation. Most importantly, the same adaptability, certainty and stability is guaranteed for the massive changes that await us in the 21st century. In relation to our system of government, there is no such thing as a small change. Any change creates a major disturbance to our present system.

I stand here as a parliamentary delegate from the National Party and give you the following reasons why we, as a party, and I as a party member, an individual who has examined the issue deeply, support the status quo. All aspects of our present system are finely intertwined. This results in the sum total of our present parliamentary democracy. Remove one aspect, however small, and the intricacy of the functioning system is lost. Under the present system, having an independent head of state plays an important role as a check on the power of the executive which in modern society is an expanding arm of government.

Eminent Australians have spoken of how our present system controls power, centralising in the executive. Sir Daryl Dawson explained it as the danger of absolutism of cabinet and Prime Minister. The reserve power of the Crown, especially the power to force or refuse dissolution, in some instances is the only constitutional safeguard. Don Dunstan said that in a Westminster system an independent head of state is necessary to ensure a proper check on the executive power. However, in this debate, major changes are being proposed, such as an elected head of state and codification of the head of state's reserve powers, which all sides of the debate agree must be codified should the head of state be popularly elected or appointed by a two-thirds majority.

This is a divergent shift and invests political power in our head of state- something that we have never had. With our present system, ultimate political power rests with the people. In times of conflict or disapproval, the people ultimately make the decision through an election. Coming here as a representative of rural people, I know that people in the bush use their members of parliament more than most.

They appreciate the access they have to their elected representatives and, through them, to the head of power in the Premier's office or the Prime Minister's office or in cabinet. Introduce a head of state with its own mandate, bestowed either through a popular election or appointment by a parliamentary majority, and the average Australian will have a large piece taken out of their franchise and be one step further removed from government decision making.

There is every chance that a popularly elected president will introduce politics into the position. The head of state would no longer be acting as a surrogate constrained by the institutions of the constitutional conventions, as now, but would act on a perceived mandate of the people. There could be many circumstances where the head of state, by their own conscience, may believe that they have a right to act on the basis of their elected office, and feel a duty to do so to act independently.

An elected head of state endorsed by a political party would introduce politics and a political strain between their office and the position of Prime Minister. We would lose the essential requirement of political neutrality of a head of state which is achieved under our present system. We all know that if a Prime Minister loses the confidence of the people he is replaced swiftly and effectively by either party pressure or by general election. How will an unacceptable head of state be removed? Does that not leave the head of state in a most powerful position?

Without a doubt, the power base will shift along the path of the United States of America where the ultimate power rests in the hands of one person. Sir Harry Gibbs said that the creation of the office of president will substantially increase the power of the executive. To increase the power of the executive is to increase the possibility that sooner or later these powers would be abused for partisan purposes. As Mr Justice Michael Kirby said, there is a risk that a local head of state, especially one enjoying the legitimacy of a vote into office, would assert and exercise reserve powers which would be most unlikely to be used by an appointed governor or state government.

Politically elected or appointed presidents will be totally different to anything known to Australians or anything they have experienced, and they will not like it. An essential characteristic loved by all Australians is our egalitarianism. When you start transferring real political power into a head of state, with superior rights and very little likelihood of dismissal, you will have created a very powerful person.

Similarly, with the option of appointment or dismissal by a two-thirds majority, which also introduces a major shift in power into the head of state, a two-thirds majority decision will divide along party lines. Never in the past 50 years has a government had a two-thirds majority in both houses of parliament. Any dismissal will have to be on party lines, with an opposition deadlocked against the government.

Mr Beazley and Mr Turnbull are on record as saying that codification of power is necessary for either direct or indirect elections. Those with any knowledge of the legal process involved agree that the process of codification would be a minefield. It would be impossible to get an agreement on which powers and conventions to codify. Professor Winterton agrees that full codification of powers removing all discretion would be complex and difficult, and my ex-colleague Gareth Evans has offered the prediction that it would take 30 years to effect and would be almost impossible to achieve.

At this Convention, we must examine how these options would in fact work and who would be responsible for nominating contenders. What sort of person would put themselves forward to stand as a head of state when it would be a long political process? If this had been the case, there is no possibility we would have had the governors-general of the calibre we have been fortunate to have. These same outstanding governors-general would not have been the sorts of people to stand for an election.

The McGarvie model presents the minimalist position. While former Governor McGarvie has not supported either a republic or a constitutional monarchy, his aim has been to propose a scheme in substitution of the Crown. He recognises that we must maintain the unique and robust brand of democracy that we now have and that there would be a most substantial alteration in the balance of power arising from an elected or appointed president. But who would his proposed substitute council of three eminent Australians consist of? He has suggested at least one woman, but what should its composition be? Should this be in the Constitution? If it includes a retired judge, doesn't this conflict with the separation of powers?

The popular feeling of the moment is not necessarily the best way to make a decision for the next hundred years. The ALP and some members of the ARM are on record as saying that, if the people want it, they will support a popularly elected president. We must learn from others- such as what recently happened in New Zealand, where populism went unchallenged, where there was no official opposition to a radical change in voting and where now, if you come third, you have all the power to choose the government and, if you come second, you come last.

There will also be incidental consequences from changing our way of government. While not the main issue here, it would be very difficult to maintain our present flag with a Union Jack in the corner. Let us not get spooked into change for change's sake. The one united cry from all Australians is to ask for a system of government as good as the one we have today, but we have that system now and none of the models being put to this Convention give all the advantages we now have. Ironically, while public opinion is so strongly against politicians, the polls show a majority want to give political powers to the replacement for our head of state. It is up to the supporters of this uncertain experiment to prove it will work.

I say to the people at this Convention today and to the people of Australia that we have an enviable system of government that gives us stability and adaptability and checks and balances on excesses of government. It is a system that has always been able to provide the solutions and resolutions this country has needed over the past hundred years and it is a system that guarantees to continue to do so for the next hundred years.

CHAIRMAN- Thank you. I call Mr George Mye.

Mr MYE- Before I begin, I would like to pay my respects to my Aboriginal brothers and sisters on whose land I am standing to make this delivery. I am pleased to stand before you today to represent the people of the Torres Strait on this very important and historic occasion of discussing with other fellow Australians the future of the Constitution of our country, Australia.

My homeland, the Torres Strait, the Coral Sea islands of Australia, is the only part of Australia that is geographically bordering on a foreign country. Despite the many threats of illegal entry and health risk- as the Prime Minister recognised publicly on his visit to the Torres Strait in 1997- we islanders are standing firm in our commitment to the country's unity and wellbeing and are forever on the alert in our national responsibility as the front door keepers of Australia's far northern gateway.

The Torres Strait Island region, homeland to Australia's second minority group of indigenous people, is located in the waterways which separate the southern coast of Papua in Papua New Guinea from the northernmost tip of North Queensland in the Cape York Peninsula area. It consists of 150 islands, islets, that are continually washed by `Kuliss', the westerly flow of currents from the Pacific Ocean via the Coral Sea, and alternately by `Gutat', the easterly flow of currents sourced from the Indian Ocean via the Arafura Sea.

Torres Strait Islanders are proud Australians who volunteered in response to the call for the defence of Australia in World War II when the enemy's invasion of Australia's north became threateningly imminent. From a total population of 3,000 give or take, 800 of our community's able-bodied men replaced their traditional Lava Lavas, their fish spears and harpoons with army khaki uniforms and 303 rifles to form the Torres Strait Light Infantry Battalion, the pride of every Ailan man even to this day. As expressed in Ailan Tok by the men: `for the king, the flag and the country' we swore on oath to fight and die. Whilst Torres Strait Island society, like others, is subject to change over the years and may not be today the exact replica of what it was in 1860, it still cherishes Ailan Kostoms which are directly derived from the original society those many years ago.

The arrival at Darnley, or Erub, Island in 1871 by the first Christian missionaries of the London Missionary Society had a profound influence over customs, tradition and society in the Torres Strait, the most notable being the `Coming of the Light'- the establishment of Christianity throughout the Torres Strait region. The Queen became the head of our church and central to the religious, cultural and civic traditions of the people of the Torres Strait. To this day, this remains at the centre of our cultural life in the Torres Strait. By removing the Queen, we remove a way of teaching that has been passed on to our children over many generations. The monarchy is an essential element of our history and cultural inheritance. Its removal will deeply affect the fabric of our society.

The debate about the Australian Constitution which has led to this Convention has not addressed the considerations of a range of diverse groups such as my own within the Australian community. Norfolk Island, Cocos (Keeling) and Christmas Island territories have their own tailor-made constitutional arrangements within the national framework of Australia, as does Lord Howe Island within New South Wales. Torres Strait Islanders want both the islands and Australia to be the model to the world of positive race relations and wellbeing.

It is time, therefore, to consider what sort of Torres Strait regional administration and political arrangements will best meet the needs of Islanders and all Australians in the 21st century. The new report on greater autonomy for Torres Strait Islanders by the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs should focus positive thinking. While the mechanical problems of change are important to both sides of the debate, consideration must also be given to the symbolic nature of our constitutional monarchy.

Our connection to the monarchy should be part of the consideration of all Australians in this debate. Delegates may think that life in the Torres Strait is far removed from the Australian Constitution, but in 1972 the issue of national status of Torres Strait Islanders, as well as the northern boundary of Australia/Queensland with the emerging independent nation of Papua New Guinea, was raised in both national parliaments. Proposals had been sent forth by the Commonwealth to move the islands of the Torres Strait across the international border that would be formed with the newly independent Papua New Guinea as a matter of goodwill to the new nation. One suggestion by the Commonwealth was that the new international border would coincide with the 10th Parallel, ceding eight Torres Strait islands to Papua New Guinea. Torres Strait Islanders mobilised an effective lobby group, the Border Action Committee, placing the Torres Strait Islander point of view before the Australian/Queensland government. The Queensland government threw their support behind islanders by exercising the states rights under the Australian Constitution. This significant event in our history brought home to us an appreciation of a system that, although complex, has the necessary checks and balances to deliver history free of political coups and revolutions.

The role of the Governor-General in guaranteeing this stability is to ensure that the laws of the Commonwealth and the Constitution are adhered to in a manner which gives regard to the public interest. By introducing an appointed or elected head of state there is a chance that we will create a dual power system with competing Prime Minister and President. An elected president would need to act with regard to an electorate or political power base. A head of state who is above politics can represent everyone.

The process of change would be expensive, disruptive and unsettled if it is a process which pursues changes for the sake of change. I believe the current system of government has served this nation well since Federation. We know it, we understand it and it meets the needs of my people. We are not afraid of change, provided we can see an advantage to the people.

Dr DAVID MITCHELL- Mr Chairman, the privilege of standing here and participating in the debate on Australia's future sits heavily and joyfully on me- a privilege that I share with each and every delegate here today. Of course, privilege always carries with it responsibility, and that responsibility should sit heavily on everyone who is here at this historic and important time as we participate in the cutting edge of a debate relating to Australia's future. This great nation will shortly have enjoyed 100 years of peaceful federation under a democratic monarchy. Democracy is a keynote of this nation. Every person, every man and woman in this land who is an Australian citizen, has a right to vote. That, I have heard today, is the mark of a republic. May I say, Sir, it is the mark of a democracy. It is not only republics that claim democracy.

I listened carefully, as I am sure each delegate present in the chamber listened carefully, to that inspiring address from Sir David Smith. Sir David explained in the clearest terms that Australia is independent. There is no question about Australia's independence from Britain: Australia is totally and completely independent.

Some may laugh- and I see some laughing. I was warned before I stood at this podium that there are some in this chamber today who would put their fingers in their ears, who would treat with derision what I need to say at this time; what I need to say by way of introduction to the useful debate that I trust we will have together. I trust that there is no-one who has been elected and no-one who has been appointed who will not listen to other arguments. It is clear that Australia is independent. Australia will be no more independent by becoming a republic. It could not be more independent than it is today.

There is no need for me to say how much Australia and its people mean to me. Not only am I now falling into the older age bracket but also I am privileged to have a heritage of five generations of Australians on my mother's side and five generations on my father's side. This is my land. I love it. The Australians are my people. I love them. And so do you, ladies and gentlemen, fellow Australians- those who are here at this time and those across the nation who are concerned with our future.

A head of state. You have heard from Sir David a brilliant explanation about the head of state. Of course the Queen is not an Australian citizen. She is not a British citizen, either. She is the Queen. Historically, it is the Queen who confers citizenship. No, I should not say `citizenship': the right to live under a system of law and government; a system of law and government inherited in this land and moulded and changed to suit our special needs.

The Australian Constitution is unique. It is very special. It has been noted even today that the Constitution does not spell out the rights of the citizens. It has been noted even today that the Constitution does not spell out the restrictions, limitations and powers of the Governor-General. This seems strange, even 100 years ago when the Constitution was framed, doesn't it? No, fellow Australians, it is not strange. There was a system of law and government already in existence. The Commonwealth of Australia Constitution has the nature of a treaty, a treaty among six states- colonies, as they were then- independent from each other; a treaty as to how they would operate together in one federal union.

Every person and every nation has an ultimate measure of right and wrong. There are four possible such measures. Either the government determines the measure of law, the measure of right and wrong in a nation- we call it totalitarian where the government makes the decisions as to right and wrong, the government makes decisions as to the law- or the decisions are made by a majority of the people as they did in many of the Greek city states in years gone by. The majority of the people decide what is right and wrong, they decide the law, irrespective of the consequences for individuals or minorities.

The third possibility is that there is no law. Everyone, every person, decides his or her own measure of right or wrong. We would call that anarchy. The fourth possibility is that there is a measure of law above and beyond what any person or any government might say. That measure of law exists. A Christian or a person of any other religion would be likely to say that that ultimate measure of law comes from God. That was the situation in Australia. The ultimate measure of right and wrong was a measure of godliness. There was no need for a bill of rights. There was no need to spell out rights and powers. There was no need to deal with the discretion referred to in section 58 of the Constitution. There was no need to do this because it already existed by virtue of the ultimate measure of right and wrong.

That is still the measure of right and wrong theoretically existing in this land. I know it is not necessarily being applied, I know that there are some elements of totalitarianism, I know there are some elements of anarchy and I know there are some elements of majorities making decisions, but the discretion of the Governor-General referred to in section 58 is not an unfettered discretion. It is a discretion bounded by the Christian scriptures. This is not spelt out in the Constitution. It did not need to be spelt out in the Constitution. It is spelt out in the Coronation.

Do you remember the Coronation oaths in which Queen Elizabeth and the monarchs before her for hundreds and hundreds of years declared that they recognised that the only rule for government is God's law? That is how the Governor-General is the Queen's representative. He represents the Queen not personally, not as her delegate; he represents her fulfilling the measure of right and wrong- the measure so clearly established in the historic common laws inherited in this land and onto which our great Constitution that has lasted these many years is implanted.

As we read the word `Queen' in the Constitution, in every circumstance except for one, we should put in the word `Crown'. The one circumstance where we need to mention `Queen' or `King' is in the appointment of the Governor-General. The sovereign does this on the advice of the Australian Prime Minister, not on any other advice. The Queen must act on that advice. It might be that the Queen would question it. It might mean that the Queen would discuss with the Prime Minister whether he really understood what he was doing. What a wonderful buffer this is.

Neither the McGarvie model nor any other model put forward is sufficient to maintain the Christian heritage of this land. This Christian heritage is not just for people of religious disposition- it is not just for Christians- but for all people of goodwill. I have no doubt that everyone here at this Convention is a man or woman of goodwill who would not want to see Australia throw away this wonderful measure of right and wrong and replace it with a totalitarian measure. Not one person here at this Convention would want to see the measure thrown away and replaced with anarchy or indeed thrown away and replaced with a system that does not recognise the needs, wants and aspirations of minorities or individuals.

I know that the republicans are not saying that that is what they propose or intend, but that is the necessary implication of getting rid of the system we now have. If you get rid of the Queen, you get rid of the Coronation oaths. You get rid of that philosophical basis and another basis is put in its place.

I am privileged to follow Mr George Mye, who adverted to this in relation to the Torres Strait Islands. How important for him and his people, who have been in this land for many more generations than mine. How important it is for those whom he recognised have seen the light. Mr Chairman, I table a booklet which I have circulated to all delegates. It is available to members of the public and is entitled Republic? The Hidden Agenda.

I call upon this Convention to understand that we must be able to explain to the people of Australia the historic basis of the Constitution. We have a duty and a responsibility to explain to the people of Australia the way that the measure of right and wrong is or should be determined in this nation. The measure is the law of God. This was established in 888 by King Alfred. Most of us remember King Alfred for another reason. In 888, King Alfred declared the Ten Commandments read in the light of the New Testament and Old Testament to be the Constitution of England, and so it has remained ever since. It did not start with the Magna Carta or the Bill of Rights. There was nothing new in the Magna Carta. There was nothing new in the Bill of Rights. They were not new documents. They were merely declaring an understanding of the biblical principles as they applied to that nation- declaring biblical principles which, perhaps in an amended form, apply to this land today. My call, Mr Chairman, to this Convention and the people of Australia is to continue as a nation under our great Constitution, humbly relying on the blessing of almighty God.

Mr RANN- Chairman and delegates: being a participant in this historic Convention is a privilege that imposes upon each of us special responsibilities and duties. If these proceedings are to do justice to the Australian people and to serve future generations, we must enter into these debates with a spirit of goodwill, commonsense and civilised respect for each other's views. We must be prepared to negotiate and compromise in a flexible and pragmatic yet principled way.

Most, if not all, of us hold strong views about the issues that we are charged to discuss during the next two weeks. We would be foolish, however, to cling to either rigid dogma or to a fixed, non-negotiable formula. To do so would be to fail the Australian people and, just as importantly, to fail the test of history. As delegates, we must have open minds rather than pretend pompously that any one of us has all the answers.

More than 200 years ago the founders of the American Constitution, leaders such as Franklin, Adams, Jefferson, Washington and Madison, were big enough and great enough to be flexible in negotiating a workable system that would stand the test of time. The American Convention in Philadelphia went for four months and saw more than 500 rollcall votes on key issues. Importantly, no individual, no state delegation and no group or faction was always on either the winning side or the losing side. There was give and take and a sense of common purpose. During the ratification process that followed, there was also a fundamental belief that there needed to be broad public debate about the various options in order to achieve not only substantial change but a deeply rooted form of democracy that would endure.

One hundred years ago, Australian delegates to the various meetings of the Constitutional Convention in Adelaide, Sydney and Melbourne showed that they had the courage and the foresight to put aside self-interest and short-term political advantage to embrace far-reaching changes that led to federation and the birth of our nation. Leaders such as South Australia's Premier Charles Cameron Kingston showed that their patriotism was underpinned by both a willingness to lead and to compromise in order to achieve the best possible result for all Australians.

We as delegates face a challenge which is not dissimilar to the journey taken by Australia's founders. For our predecessors, it was inconceivable to embrace anything other than union under the British Crown, even though they left us with a unique constitution, which includes key elements from the United States, the United Kingdom as well as Canadian and Swiss influences. Here in Canberra we are considering a new model which reflects our maturity as a nation with a willingness to chart our own destiny.

I am a republican. I was born in Britain, raised in New Zealand and migrated to Australia as an adult. For me, Australia becoming a republic is not about change for change's sake but about defining what Australia stands for and about where we are going as a nation. For me, supporting a republic is not about embracing alien concepts but about reinforcing our loyalty to Australia as citizens, not subjects.

Becoming a republic should not be interpreted in any way as being disrespectful to the royal family, which has served Australia well and for which most Australians hold great affection as well as respect. Becoming a republic is not about ignoring Australia's history or denying our heritage. It is in fact part of our evolution as a nation. I believe that as we enter a new century it no longer makes any sense for Australia's Constitution to insist that our allegiance is to the person wearing the Crown of `the United Kingdom of Great Britain and Ireland', according to the law made by the Westminster parliament. For me, it makes no sense for a modern, mature Australian democracy that article 59 of our Constitution states:

The Queen may disallow any law within one year from the Governor-General's assent . . . 

Constitutional monarchists will no doubt tell us that this extraordinary power of the Queen to disapprove acts of the Commonwealth parliament has never been used. But it is there in black and white in the Australian Constitution, and it is contrary to every principle of parliamentary democracy in a free country- in any free country.

We must explain to our fellow Australians that becoming a republic is not about abandoning Australia's active role in the Commonwealth of Nations headed by the Queen. At last count there were 29 republics and 15 constitutional monarchies with allegiance to the Queen within the Commonwealth- and even five national monarchies such as Tonga and Brunei with allegiances to their own royal families but still within the Commonwealth.

Much of the debate has so far focused on what kind of head of state Australians want and how that person should be chosen. In December I joined with my friend and colleague in Western Australia, Geoff Gallop, in issuing a paper on this issue. We believe that, above all else, Australia deserves a head of state who exemplifies, unites and promotes our nation, who lives among us, whose loyalties lie firmly and solely with the people of Australia, a fellow citizen, one of us. Geoff Gallop and I argue that a president as Australia's head of state would immediately remove any ambiguity at home or abroad about his or her primary allegiances. In our paper we argue that Australians would also want a president who is above politics, with similar powers and ceremonial duties to the Governor-General, who at present is not Australia's head of state but remains as the representative of the Queen.

Former Prime Minister Paul Keating, a number of my senior ALP colleagues and many fellow delegates, both republican and monarchists, have a preference for the appointment of Australia's head of state by a two-thirds majority of federal parliament. I am certainly relaxed about the two-thirds model, a variation of which I would support as the method of choosing my own state's governor in South Australia. I am aware that the two-thirds model is principally designed to ensure a non-partisan choice as head of state by attempting to entrench bipartisanship into the selection process. This model would, after all, be a substantial improvement on the present blatantly partisan process whereby governors and governor-generals are selected by the party in power, often with no consultation, let alone agreement, with opposition parties.

In our paper, Geoff Gallop and I raised another option that deserves both debate and serious consideration: the direct election of the president. This is the option most favoured by the vast majority of Australians. We are aware of the arguments against direct election: that the elected head of state's popular mandate would rival that of the Prime Minister and that the election process would become highly political. Politicians who oppose the direct elect model argue that those Australians who favour this system because they do not want politicians to choose their president would simply end up with a politician as their president if the direct elect model is endorsed.

In 1897, delegates to the constitutional convention were directly elected by the people, all of them. And the deliberations of the convention were directly voted upon by the people. One hundred years ago, the concept of full democracy was considered somewhat dangerous and radical, but there was enough confidence and goodwill to trust the Australian people. That was 100 years ago.

I firmly believe in the sovereignty of the Australian people, and I believe we should listen to the view of Australians who believe that the position of president should rest upon the ultimate power of people. Whatever we decide and recommend at the end of this Convention, all of us who are politicians, professional or amateur, should endeavour to address the perception that politicians do not trust the people and that the people do not trust the politicians to select a decent president. If we do not address that issue, we are in danger of recommending a system that will be thrown out by voters in any referendum. I certainly reject the notion that only the direct elect model requires the codification of the president's powers.

If we are to genuinely embrace a real and not a token republic, the codification of the president's powers in respect of the parliament, the cabinet and the Prime Minister is essential whatever model is supported. An Australian head of state with properly codified and limited powers, elected or at least nominated by the Australian people, would give the public a real stake in this important constitutional change. Endorsing this approach is also more likely to achieve the level of public support necessary to win a referendum with a majority of votes in the majority of states. If this happens, the debate should then focus on the process of how candidates for president are nominated, and I am impressed with a variation of the Irish model and some of the ideas put forward by Professor Victor Prescott that involve an active role by the Commonwealth parliament. Certainly we have to devise some way of making the Australian people involved in this process committed to this process and with an investment in the process for their nation.

There are other issues that need to be resolved. So far little attention has been given to the selection and the role of a vice-president or person who temporarily assumes the powers of the head of state during his or her absence. At present, section 126 of the Constitution states that the Queen may authorise the Governor-General to appoint any person or any persons jointly or severally to his deputy or deputies within any part of the Commonwealth. In practice, state governors in order of seniority are usually appointed to act as deputy during a Governor-General's absence. What would be the process in a republic? Would it be the same or would we choose a vice-president by appointment, through a two-thirds majority or even by election. That is certainly something that needs to be the considered.

Next week we will consider the implications for the states. I strongly believe that individual states should retain control of their own constitution and will argue that federal governments or Commonwealth parliaments should have no role in appointing or selecting state governors. I do, however, believe that bipartisanship should be entrenched in a republican system in choosing future governors of South Australia.

I had hoped that this Convention, held on the eve of both the centenary of Federation and a new millennium, could have been given a wider brief. Last year I wrote to the Prime Minister proposing that this Convention should be the appropriate forum to consider statehood for the Northern Territory, which was handed over to the Commonwealth by South Australia in 1911 in exchange for a commitment to build an Adelaide to Darwin rail link. We are still waiting.

Incorporating the new state of the Northern Territory into an Australian republic would be a timely and fitting act of nation building, and I look forward to a special relationship between the two central states of South Australia and the Northern Territory in the near future. The year 2001 would also be an appropriate time to make constitutional steps towards reconciliation and a recognition of Australia as a multicultural nation.

Our brief during the next two weeks may be limited, but it is vitally important. None of us must act as spoilers, and we cannot afford gridlock or stalemate. I came here with one mission: to support a republic with an Australian head of state in a system where the people of Australia are sovereign. It is their nation and they must have a sense of ownership of both the process and the outcome. There are a number of paths that we can choose, but with goodwill, an open mind, an ear to the people and an eye to the future I am convinced that all delegates can make an important and historic contribution to the future of Australia.

CHAIRMAN- I thank delegates for their attention at the Convention today.

Convention adjourned at 6.14 p.m.

 
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Last updated: 21 October 2000