The Foundation for National Renewal   The Constitutional Convention of February 1998

Federal Election October 2004: Which Candidates Trust the People?

TRANSCRIPT OF PROCEEDINGS
Tuesday, 3 February 1998
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Full Delegates List

PROXIES TABLED BY THE CHAIRMAN

Tuesday, 3 February 1998

Convention met at 9.00 a.m.

CHAIRMAN- In accordance with the resolutions passed and amended yesterday morning with respect to the revised rules of debate and order of proceedings, I table, and will ensure they are circulated, amended rules of debate and orders of proceedings for today's conduct of business. In addition, I table a list of 827 submissions to this Convention received from members of the Australian public. In so doing, I explain that there is to be a summary of each of those submissions provided to all delegates. The full submissions are available in the secretariat and will become part of the proceedings of this Convention. I also extend to members of the public who have sent those submissions our thanks for their input into our deliberations.

I also will table three proxies that have been received. The first is from the Premier of Victoria, the Hon. Jeff Kennett MLA, wishing to advise that he has requested Dr Robert Dean, the Victorian Parliamentary Secretary for Justice and the state member for Berwick, to be proxy on his behalf. The second is from Sue Napier appointing Michael Hodgman to represent Mr Rundle, the Premier of Tasmania, instead of Mr Groome, who had been the nominated proxy. The third is from Mr Alan Ferguson, who has had a recent death in his family, appointing the Hon. Tony Abbott to act as his proxy until the end of this week.

On a procedural issue, we have had a request from the media to take shots of a working groups in session. I know this will disrupt the proceedings of working groups and recognise that it is not terribly practical but, unless there is any objection, I propose to agree, subject to the invasion being brief, to arrange with one working group at its commencement of proceedings this afternoon a brief photo session. The secretariat will make arrangements with the convenor of one of the working groups for this purpose.

The first item on today's agenda is endorsement of the membership of the resolutions group. There were 25 nominations to the resolutions group, five of whom are women. We had one list with only four women, and we found that one group had not had nominations received, so two additional names have been added to the resolutions group. In view of the resolution suggesting gender equality in the constitution of the resolutions group, the Deputy Chair and I accepted all the nominations of women and have chosen six men in order to provide a balance, with an odd number to allow resolution. I also propose that Barry Jones be the non-voting chairman of the group.

The resolutions group will be delegates Lloyd Waddy, Malcolm Turnbull, Wendy Machin, Jeff Shaw, Pat O'Shane, Moira Rayner, Daryl Williams, Julie Bishop, Stella Axarlis, Gareth Evans and the Most Reverend George Pell. Could I have a motion that the Convention endorse the proposed membership of the resolutions group.

Motion (by Mr Wran) agreed to without dissent:

That the Convention endorse the proposed membership of the resolutions group.

CHAIRMAN- We now move to receive reports from yesterday's working groups. We have allowed, as you will recall, 15 minutes for each report. Each working group can use that whole 15 minutes. If you wish for the rapporteur or the chairman alone to speak for that 15 minutes, you may do so. If, on the other hand, three of you wish to use five minutes or some other multiple within that 15 minutes, that is at your discretion so to do. You have 15 minutes within which to debate the report.

Issue 1: If there is to be a new head of state, what should the powers of the new head of state be and how should they be defined?

CHAIRMAN- I envisage that in the course of today's proceedings we will have the general debate on the subject of the working groups- that is, if there is to be a new head of state, what should be the powers of the new head of state and how should they be defined. The course of the general debate on that subject will enable each of the delegates to comment on any aspect of any of the resolutions, or all, if they wish. The actual moving of the motions will be a formal process at 3 o'clock.

At 3 o'clock, we are going to allow some dialogue. We will have multiple resolutions so that, unlike an ordinary meeting, we will have a series of resolutions with each of the amendments that have been proposed. I know it is a bit of a disfigurement of this beautiful old chamber, but we have two screens, and it is intended that the resolutions can be displayed on the screens. If there are amendments, they can be included on the screens. It expedites the deliberation. We will have each resolution, with each of the amendments, so that by 4 o'clock we will all be aware of what the resolutions are and what the amendments are. Then we will proceed seriatim to consider each of the resolutions.

It is more than likely- in fact, it is inevitable- that a number of the resolutions will either be in conflict or might well be complementary. However, we intend to take a vote on each resolution. You will recall that they are, under our rules of debate, provisional resolutions. Those that receive more than 50 per cent support will then go as provisional resolutions to the resolutions group. They will be returned at a later stage of the Convention when other resolutions have been considered, and we will consider each of the resolutions as final resolutions, hopefully producing one on each of the principal subjects. At this stage, it may well be that we have several resolutions that go forward for reconsideration as final resolutions. That way we have some chance at producing the recommendations that it has been suggested is our task.

I invite each of the working group reporters to report to us. Working Group No. 1 suggests, with respect to the head of state, the same range of powers with existing constraints on their use, no express provision to be made at the Convention as to the guide to the use of the reserve powers. The first speaker of Working Group 1 is Professor Greg Craven.

Professor CRAVEN- Thank you, Mr Chairman. As has been said, our working group began with the proposition that there would be no change in the range of powers. I have to say at once that the working group had a satisfying, almost sickening, degree of unanimity in its views. We reached a strong consensus on our position and my instructions are to put it with the strength that the working party felt it. While we were not absolutely unanimous on absolutely every issue, there was a strong consensus. If I get it wrong, I am confident it will be pointed out to me loud and long for the rest of the Convention.

I was instructed by my working group to start from the central proposition not of theory in relation to the powers of the head of state but of practicality, and brutal referendum practicality at that. It was felt that the issue before this Convention is the issue of achieving, so far as possible, a consensual republican model. That, the working group strongly believes, is achievable without any degree of codification whatsoever. Codification is an unnecessary add-on to any plausible model- subject to some exceptions that I will come to- to which this Convention may agree. For this reason, this working group is strongly opposed on the grounds of practicality to codification of powers. We firmly believe that any such attempt to codify will be all but fatal to the chances of a republican proposal at a referendum. We believe that to bring forward a codification in a substantial sense- a total codification or something approaching a total codification- would come very close to dooming any republican proposal.

The reason for that is simple: the conventions of responsible government surrounding the powers of the head of state are complex, contentious and emotive. Any attempt to codify them would involve re-fighting battles so old that many of us here can scarcely recall that they occurred. The best example is, of course, the conventions and the powers concerning the blocking of supply by the Senate. But there are many others that could be pressed into service in a referendum campaign. The working group wished to make it absolutely clear that we understand the history of referenda in this country and that any attempt to put forward a strong codification would excite inevitable opposition, dissension, confusion and antipathy and would gravely imperil any attempt to put forward a consensual republican model.

That is the practicality. The working group did not see this as a view, or as arguable or possible. The history of referenda in this country proves that in the event of confusion, dissension, or serious opposition proposals fail. So why put forward a matter that is bound to have that effect in relation to the republic? As it happens, we did not devote our time entirely to practicality. We also looked at the question conceptually and we were delighted to find that the conceptual arguments against codification are as compelling as the practical ones.

The first point that I would like to make is that the working group did consider the question of why it is that so many people are in favour of codification. The view was put, although it was not unanimously agreed to, particularly by some of the lawyers present, that it represents the lawyer's natural desire to believe that no rule can possibly work or indeed exist unless it is written down in black and white, preferably by a lawyer, and that this comfortable expectation, while understandable to those of my own profession, is not in accord with the reality of our constitutional system, which is not a rule book but an organism, a subtle and evolving organism which does not require being- nor can it be- reduced to the status of a telephone directory.

Corresponding with that point the working group formed the view that one will never be able to codify all the conventions of a system. There will always be constitutional conventions. A constitutional system without constitutional conventions has never existed. Were we to write them all down now, ambiguities would arise. How would they be fixed? Not by difficult constitutional amendment but by the evolution of other conventions. So codification, it seems, is an illusion, and it is a double illusion because not only is it the case that there will always be conventions but also it is impossible to reduce conventions of the Constitution to writing for at least three reasons.

The first is that, as we all well know, we cannot agree on most of them, and certainly on the most important. If you have, as the old joke goes, three constitutional lawyers talking about the Senate's power to block supply, you will get four views. I had dinner with George Winterton the other night and between us we had about six views. There is no way we will ever agree on that. Nor will we agree on relatively minor conventions, like a deputy prime minister succeeding a prime minister when a prime minister dies.

A second problem is that these conventions are complex. It has been suggested that that is a convention- there are those here, I am sure, who would assert that that is a convention. The point that conventions are complex and hard to reduce to writing is not well appreciated. There has only been one real attempt in recent times to comprehensively codify a convention in the Australian Constitution. That is section 15 dealing with the minute question of casual vacancies in the Senate. That section is two pages of densely drafted gobbledegook. It looks terrible in the Constitution. I can remember showing it to a Canadian academic and she laughed and said, `How could you put that in your Constitution?' Of course, the real joke is that it does not even work, even though it is two pages long. Are we seriously going to do that in relation to other conventions?

The final point that we wish to get across is this: there is a dreadful danger with conventions that you will get them wrong and, best of all, you will not know that you have got them wrong until the unique situation arises some years down the track and then the codification does not work and is practically impossible to fix. Perhaps that leads into the next point that appealed to the working group: a concern over the loss of flexibility. It is true that conventions evolve, and evolve for the better. For example, the convention that the Australian Prime Minister provides advice to the Governor-General after losing an election on the identity of his or her successor is not part of the Westminster system of government. It evolved well and in the interests of stable government in Australia. It should have evolved and that was a good thing. If one looks at the attempted codification of conventions by the great lawyer, the late Herbert Evatt, written in the 1930s, and imagine that they were to apply now, had they been codified as he wished, one realises how dangerous and futile an exercise it is.

The working group addressed the issue often raised in favour of codifying conventions: transparency- we must have a Constitution that everyone can read and everyone can see what the basic rules are. The working group would make two points in relation to that. One is that, as I have said, it is impossible to codify all conventions and so one will never have a completely transparent Constitution. That degree of transparency is an illusion. But secondly, the working party found that when one looks at the so-called ignorance of the Australian people about the Constitution, the bits that they understand best- and I can assert this as a teacher of young people in areas related to this- are the bits that are not written in the Constitution. If you ask the average young Australian person about section 92, they will, with all appropriateness, look at you blankly. If you ask them what is in section 51, they will tell you that they do not care. But if you ask them who the Prime Minister is and how you get into that unpleasant position, they will know the answer. Where does that come from? Convention. So it does not seem to us that transparency is the argument that it is sometimes put forward as.

The working party was very much opposed to writing unenforceable conventions into the Constitution in some sort of hortatory statement for a number of reasons. One was that there seemed to us to be some sort of moral contradiction in formally putting rules into a Constitution and then saying, `Ah, yes, but they are not really binding or enforceable.' Secondly, for those of us who are addicted to transparency, the Constitution is certainly less transparent if people read rules that are not in fact going to be as judicially enforceable as other rules. Finally, there was a concern in the working party that, even if you stated those rules to be non-judicable one, could not guarantee that the courts would not at some point become involved; that, even if there was a statement that they were not to be enforced, there might be some indirect future attempt to enforce them.

The working group was strongly of the view that conventions should not be enforced through the courts. To do so would involve judges in high politics, to which they are unsuited, and would attract an odium that should not be imposed upon them. We were concerned by such spectres as the possibility of a prime minister seeking an injunction to prevent his or her dismissal by the head of state.

In short, our view was that the chief protection of the constitutional system in relation to the powers of the head of state was not an illusory codification, beloved by lawyers as it may be, but rather, through the operation of a parliamentary and electoral and social system of accountability and checks and balances, a good deal more sophisticated and compelling than some of its critics would give credit to.

There is, of course, an exception, as there always is. Were there to be an elected head of state- it would appear at this stage that is unlikely- the working group was unanimously of the view that one would require full codification of powers to deal with the polarities of popular support that would emerge. That is not to say that the members of the working party support that position. I think the position was that they accepted a grim necessity to meet an even grimmer occasion. The working party also considered the question of what would be required if there were an election by two-thirds of a joint sitting of parliament. Again, the working party agreed that full codification would be required. They did not believe that would be the case were a model to be adopted where the Prime Minister or a body answerable to the Prime Minister were to appoint the head of state.

There is one aspect of codification that the working party would support. The working party sees no harm in codifying, if that be the word- perhaps constitutionalising- the universally accepted principle that the Governor-General acts on the advice of his or her ministers, whether in the federal Executive Council or otherwise. That is uncontroversial, I believe; it raises no particular issue. In relation to the scope of powers, the working party also would support the removal of the otiose powers of reservation and disallowance, but beyond this the working party would not be prepared to go.

In summary, I suppose the working party has got to a twin position of practicality and principle. Practically, an attempt for substantial codification leads in only one direction: a defeated referendum for a republic. If it leads in another direction, from a personal note may I say it is in a sense the first test of consensus in this Convention because I believe that there will be a number of delegates, of whom I am one, for whom this will be the point of departure.

Substantial codification would effectively define out the question of a republic for a number of those people, and I believe the Convention has to think of this very carefully and it has to think of those two issues. It must think firstly: what is the practicality? Do we do this if we do not need to, with the consequences it inevitably must have? It also must consider those strong grounds of principle based on an understanding of our system which equally strongly militate against the codification of conventions.

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