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
Page 10

CHAIRMAN- Thank you, Mr Jones. I call on Mr Michael Lavarch, to be followed by Mr George Mye.

Mr LAVARCH- This Convention occurs against a backdrop of public debate on the republican issue which has almost solely focused on two broad issues: the relative merits of whether Australia should or should not become a republic and, moving on from that point, the best method of appointment. The opinion polls which we see regularly displayed, and one I think yesterday again in the Brisbane Courier-Mail, show very strong support for direct election- popular election. Yet in many ways this is a debate which places the cart before the horse. The horse in our instance is the question of the nature of the office of an Australian head of state and the exact powers which attach to that office. In my view it is only when we decide what we want the office to do and what power we give to the office holder can we logically flow on and make a decision about the best way of choosing or electing that office holder.

That reality is reflected in the agenda of this Convention. It is why we are today debating the issue of powers as the first substantive debate for the Convention. It is also an issue which was well recognised by the reports of the various working parties which we heard this morning. For instance, Professor Craven, though he and his group argued against codification, noted that, if direct election were to be a method considered, full codification would be needed.

The reports of the working groups which we will be asked to vote on this afternoon fall within three broad categories. One group argued for reduced powers. The second group argued that the same powers that attached to the office of Governor-General should be retained. That was the majority, I suppose, of the working groups. A third working group, working group 6, argued for broader powers.

The view that you take on these three alternative approaches depends very much on your concept of the best system of government which this country should have. If you believe as a starting point that the Westminster system, the system of cabinet and responsible government, the system which operates in Australia now, is a system which should be supported and be maintained, inevitably you are drawn to the conclusion that either the role of the head of state has to reflect the powers which rest with the Governor-General or potentially that those powers be reduced. If, alternatively, you believe that we should move fundamentally away from that system of government, that we should embrace a system which is more akin to that of an executive head of state- the American and similar style models around the world- then you would very much embrace the issue of broader powers than that currently enjoyed by the Governor-General.

All of these are equally valid systems and all of the reports that we have before us can be supported, depending on your point of view, on their respective merits. The issue is the path that this particular Convention should take. I think that we should very much adopt this spirit, which I believe was part of the original series of conventions that drew up the Australian Constitution. Our Constitution was drawn up not by philosophers but very much by pragmatists. It is not a document which flourishes with great expressions or particularly inspires, but it does go about the job very effectively of establishing a system of government, of dividing powers between the states and the Commonwealth, of providing a division of power between the executive, the parliament and the judiciary. If we as pragmatists, as realists, take that this is the system of government that is to continue in this country, then I think you quickly come to the conclusion that those who argue for broader powers really, as much as I respect their views, cannot succeed. This is I think the first of the proposals before us that we can put to one side.

The issue then turns to whether the same powers as currently enjoyed by the Governor-General or greater or lesser powers should be the option that we should further explore. I was a member of Working Group 7. The report of that group proposed to this Convention that there be a full codification of powers based on the model contained in the Republic Advisory Committee report and that, in addition, the power of the Senate to block supply, logically when going down the path of looking at the particular role of the head of state, should also be tackled.

While I, like Premier Carr and Gareth Evans, very much keep a candle burning to the idea that one day the issue of the balance of powers between the House of Representatives and the Senate should be seriously examined and that there should be a power to block supply, as a realist, as a pragmatist, I know that not only will that proposal not gain the support of this Convention; it will not gain broad bipartisan support and there will be very strong voices and broader opinion in the Australian community, which would not support such a course of action. Though that is not my personal desire, I accept that is the reality. I therefore accept that reality and believe, therefore, our prime consideration of this Convention should be on the issue of maintaining the same level of power and possibly debating whether a codification of powers, either partially or fulsomely, should be the model that we advance.

Where does this tie back into the issue of the method of election? It seems to me, and it has been pointed out by other speakers, that you cannot be one-half or one-quarter pregnant in this debate. If we are to have a head of state who holds and exercises executive power, then let us go down that path and give full executive power. The difficulty with the proposals that we have before us is that they do not quite do that but they do not maintain the same powers or reduce those powers. That is why I do not think direct election is a viable option to us. Going down the path of direct election is hand in hand with going down a path of reducing powers, including the power of the Senate, which I do not believe, as a pragmatist, we will achieve.

I do, however, believe that full or partial codification of powers or a reference to the existing conventions are all viable alternatives which will sit either with the McGarvie model or with a two-thirds majority model for the selection of the Australian head of state. My preferred model is that we do codify those parts of the existing powers, and the conventions which underpin them, which are non-contentious. They have been very well set out in the Republican Advisory Committee report.

We should have an open mind when going to the next step of the concept of full codification, but I think the prospect of gaining support from this convention and the broader community is somewhat less than optimistic. If we are to achieve the charter that has been given to us then we all must give some ground. Just as I might have to accept that my idea of Senate power being eliminated must give way to gain consensus, other delegates will also need to consider giving some ground. We can achieve that around a model of partial codification based on a retention of essentially the same powers which the Governor-General currently enjoys. It is around these styles of resolutions that our deliberations should be focused.

Mr HEPWORTH- I stand here as a member of the group of delegates- the second largest- to this Convention who were elected on the unambiguously clear title of `No Republic' but whose members have nonetheless agreed that they will make an equally unambiguous contribution to the Convention by highlighting through working groups and debate the standard against which we are here setting all other proposals, that is, the current constitutional arrangements which have, as with every matter in the balance of powers issue and therefore the debate about powers, set a benchmark in 20th century politics which is a shining light in an otherwise rather desolate political landscape.

The crucial element of this debate, which has perhaps been touched on by Paddy O'Brien but, I suspect, accidentally, has not been touched on by many others and that is that it is quite meaningless in the debate on our constitutional history to discuss the powers of the ruler without first being absolutely clear on the powers of those who are allegedly ruled. In other words, the debate about the rights of the citizen must go hand in hand with the debate about the rights of presidents and prime ministers.

DELEGATES- Hear, Hear!

Mr HEPWORTH- To debate one without the other is to be establishing a system based on the assumption that there will be those who are ruled virtually without rights, in other words, an elite system of government in which the people are not the principal constituent. The essence of the existing system is that, at least since the glorious revolution, which I remind our republican friends was quite some time ago, the Crown has been the custodian of the rights of the people against elected and executive government, which is likely always to overstep the mark in grabbing power. That must be the starting point because the existing system exquisitely protects the rights of the citizen against an abuse of executive power. Since the executive comes from the democratic source, executives in our system are always likely to overstep their power, forgetting the democratic origins of that power and presuming to act as an executive autocracy.

We therefore must be very clear that the origin of our present system begins with, dare I say it, the British Bill of Rights- that itself has roots in Magna Carta- and sets out the rights of the individual against government and then proceeds on that basis to define those powers which it is tolerable for executive government and the Crown to exercise. In the light of the models before us, that means that we must be looking at the constraints on presidential power rather than on the smooth working of presidential power. I hope we will all constantly fear any sort of president that has a smooth life.

If I can take you back, since it has been mentioned several times this morning, to the history of constitutional reform in Australia, almost all proposals have been rejected. Some of my colleagues in political science have interpreted that as meaning that the people are terminally pig-headed and do not like change. In fact, any change that had nothing to do with making the lives of politicians easier has gone through. Almost all the changes, since they are crafted in the parliament, have been designed to enhance the power or facilitate the activities of politicians. And they have all been defeated. Even the one that went through in the aftermath of 1975 was designed to curb the ingenuity of state parliaments attempting to craft neat political solutions to otherwise impregnable political problems.

We begin by highlighting the concept that power must be balanced and the first source of balance is between the people and the government. The powers of the president must be crafted in that way so that the constant point of reference is not the efficiency of the executive but the freedom of the people. Any proposition that begins backwards we will resist, and all the propositions currently before us are backwards; they begin with a consideration of presidency. Presidency understood in that way and Australia's extraordinary ability to craft systems for freedom are in direct contradiction. Indeed, in one's lighter moments one may well have looked to the fact that for 100 years we have accepted a monarch living 12,000 miles away because for a group of people at least partially descended from convicts that was a safe distance from the source of authority. We are now bringing authority much more immediately, even if it is only the fact that the political secretary at Buckingham Palace has tended to give rather good advice to the political secretary of the Governor-General, and let us be quite real about the interplay that has occasionally taken place- publicly in 1975 but constantly before and after.

The crucial element in any discussion of powers must be the problem of enhancing the democracy whilst providing a system which stands in judgment over it, at least in the exercise of executive power in a democracy, which is able to judge according to greater principles. All constitutions seek to entrench some principles that cannot easily be changed, particularly by the mob on a bad Saturday morning when they are voting. There is always the problem that if everything is easily changeable, everything will be easily changed and distorted.

There are certain principles we ought to seek to enshrine and none of them are here yet- principles surrounding liberty, freedom, property, relationships and, dare I say it, also a group of principles beyond the personal which seek to entrench the nation and its personality. We have not touched on treaty making and yet it is one of those powers ill defined in the Constitution exercised in quite a different way now to that which was anticipated and which has a profound effect on the daily lives of people by entrenching a range of social as well as political principles which suddenly govern Australia without local political debate. If we are worried about a powerless monarch 12,000 miles away, we ought to be worried about the treaty powers and be looking at them much more closely than we have. That is an issue of personal freedom and of sovereignty, which the monarch is not.

So we would want to further this debate by switching it around and suggesting crucially that we look again at how much of the Bill of Rights has indeed been inextricably translated to Australia, how much of that doctrine of the rights of the individual standing over against the rights of government can be entrenched and how much we can limit the exercise of presidential power by balancing it in its present exquisitely balanced way against the powers of executive power and encapsulate that entire system within the context of unambiguous democracy which we now have but which, with the checks and balances removed, we are likely to lose unthinkingly.

Sir DAVID SMITH- A lot has been said this morning about 1975. It is a year which I remember particularly well. The Hon. Bob Carr, in opening this debate this morning, said that he had maintained the rage. Let me give the Convention the real truth of the matter. If I could just go back to the previous year, 1974, for a moment, we find that in that year the coalition parties in opposition had merely threatened to block supply in the Senate and Prime Minister Whitlam called on the Governor-General and recommended an immediate double dissolution and a general election. But in 1975 Mr Whitlam decided not only to ignore parliamentary convention relating to supply but also to pretend that no such convention existed anyway. He started arguing that the Senate had no right under the Constitution to refuse to pass a money bill which had been passed by the House of Representatives and that the Senate had no right to try to force the government to an early election. In this Mr Whitlam was, of course, quite wrong, but that did not stop him from trying to convince the electorate that he was right.

Faced with the prospect of having no supply of money with which to govern, the Whitlam government decided to tough it out. As government departments began to run out of money with which to pay the salaries of public servants or to pay their bills from private contractors for the supply of goods and services, the government tried to circumvent parliament and enter into arrangements with the banks to, in effect, lend it the money until it could get it from parliament.

Mr WILCOX- I can give concrete evidence of that.

Sir DAVID SMITH- Such arrangements were unconstitutional so far as the government was concerned and illegal so far as the banks were concerned. Mr Whitlam's stated aim was to put an end for all time to the Senate's power to block supply. In effect, he was trying to bring about a change in our constitutional arrangements, but without seeking the approval of the people at a constitutional referendum, as required by the Constitution.

Not only was Mr Whitlam flying in the face of everything he had said the previous year, when he took the view that even the threat to block supply meant that there had to be an election, he was also trying to overturn practices which he and his party, the Australian Labor Party, had followed for the past 25 years. In 1967 Senator Lionel Murphy, then Leader of the Labor Opposition in the Senate, had this to say about the upper house and money bills:

There is no tradition that the Senate will not use its constitutional powers whenever it considers it necessary or desirable to do so in the public interest. There are no limitations on the Senate in the use of its constitutional powers except the limits self-imposed by discretion and reason. There is no tradition in the Australian Labor Party that we will not oppose in the Senate any tax or money bill or what might be described as a financial measure.

In 1970, when Mr Whitlam was Leader of the Opposition, he had this to say:

The Prime Minister's assertion that the rejection of this measure does not affect the Commonwealth has no substance in logic or fact. The Labor Party believes that the crisis that would be caused by such a rejection should lead to a long-term solution. Any government which is defeated by the parliament on a major taxation bill should resign. This bill will be defeated in another place. The government should then resign.

When that same bill reached the Senate, this is what Senator Lionel Murphy, still Leader of the Opposition in the Senate, had this to say:

For what we conceive to be simple but adequate reasons, the opposition will oppose these measures. In doing this, the opposition is pursuing a tradition which is well established, but, in view of some doubt recently cast on it in this chamber, perhaps I-

that is, Senator Murphy-

should restate the position. The Senate is entitled and expected to exercise resolutely but with discretion its power to refuse its concurrence to any financial measure, including a tax bill. There are no limitations on the Senate in the use of its constitutional powers except the limitations imposed by discretion and reason. The Australian Labor Party has acted consistently in accordance with the tradition that we will oppose in the Senate any tax or money bill or other financial measure whenever necessary to carry out our principles and policies. The opposition has done this over the years and, in order to illustrate the tradition which has been established, with the concurrence of honourable senators I shall incorporate in Hansard at the end of my speech a list of the measures of an economic or financial nature, including taxation and appropriation bills, which have been opposed by this opposition in whole or in part by a vote in the Senate since 1950.

At the end of his speech Senator Murphy tabled a list of 169 occasions when Labor oppositions had attempted to force coalition governments to early elections by defeating money bills in the Senate. Two months later, in August 1970, the Labor opposition launched its 170th attempt since 1950. On that occasion Mr Whitlam had this to say:

Let me make it clear at the outset that our opposition to this bill is no mere formality. We intend to press our opposition by all available means on all related measures in both houses. If the motion is defeated, we will vote against the bills here and in the Senate. Our purpose is to destroy this budget and to destroy the government which has sponsored it.

In October 1970 Mr Whitlam told the House of Representatives: We all know that in British parliaments the tradition is that if a money bill is defeated the government goes to the people to seek their endorsement of its policies.

It is true that none of Labor's 170 attempts between 1950 and 1970 to defeat coalition money bills in the Senate and force an early election had succeeded, but this was not for the want of trying. So that when in 1975 Mr Whitlam said that the Senate had never before had refused to pass a government's money bill he may strictly have been telling the truth but he certainly was not telling the whole truth.

Mr LEESER- Around the time of my 10th birthday I did a primary school project on Australian government. On the front of this project I drew a picture of Sir Robert Menzies, Australia's longest serving Prime Minister. I gave my hair a cut and stuck it down on the page to represent his bushy eyebrows. The point of this project was not for me to give myself a haircut; it was a project of discovery, a project where I discovered the Australian Constitution. I knew that the United States had a constitution- what child of the television generation does not know that?- and I knew what a venerated document that constitution was. So for my 10th birthday present I asked not for a BMX bike or Lego but this copy of the Australian Constitution. I have to say that it looks rather underwhelming. It was a flimsy document and a document which looks like any other piece of government legislation. But the more I studied and the more I read, the more impressed I was. What I was impressed with was not what was written in the Constitution but by what is so much more important, that which is not written in the Constitution- those conventions which are the oil which lubricates our constitutional cogs.

There are four matters I wish to discuss in my speech today as to why the conventions and the Governor-General's powers work well now and why the same could not be said if we transferred the powers to a republican system. The first point relates to the Governor-General's conduct; the second to the codification straightjacket, as I will term it; the third to the difficulties of codification; and the last to the paradoxical need to spell out the powers under a republican system.

If we look at the conduct of the Governor-General, the first thing that we notice about the Governor-General is that he does not have tenure in the same way that the Prime Minister does not have tenure. This provides a check and balance on the Governor-General in the use of his power because he knows he is there subject to the Queen's pleasure, on the advice of her Australian Prime Minister. The second thing that we realise about the Governor-General's conduct is that his office has evolved. He knows that he is there to represent the Crown and he knows that he is there to act in a manner that will bring dignity to the Crown and to act in the like traditions of the Crown. A perfect example of this is the way in which Bill Hayden acted. Bill Hayden, a former critic of the office, rose to the occasion and has now become one of the defenders of that office.

The tradition of the Crown incorporates what Bagehot described as the three rights of the monarchy: the right to be consulted, the right to encourage and the right to warn. Our system is a product of evolution over the centuries, from the time of the Magna Carta in 1215 to the Australia Act in 1986. A president would not necessarily be obliged to act in accordance with these conventions or in the same way as a Governor-General because of election, however so chosen, and, secondly, because of the fact that it is a new office.

I wish to move to the question of what I will term `the codification straightjacket'. There are two occurrences that result from codification. The first is justiciability and the second is inflexibility. I want to deal with inflexibility first.

If we think back to the founders of our Constitution and to when they wrote our Constitution, their political climate was very different to the political climate we know today. The two-party system had not taken hold. The idea of a Prime Minister in the common law world was a new development. The states were strong and the convention delegates were influenced by writers like Bagehot, Dicey and Bryce. Luckily, because of the traditions that we had inherited from the United Kingdom, we managed to keep our Constitution flexible.

To see the future requires telescopic vision, the sort of which the founding fathers did not have. It would be unpardonably arrogant for us to believe, in our day, that we have that vision. In their day, the founders could not have imagined the controversy over section 92 that has developed or the fact that, today, the Senate no longer really represents the states' interests but rather the parties' interests. Deakin was on point when he said, `The Constitution we seek to prepare is for the generations unseen and as yet unknown.' If we codify matters, we put future generations into a straightjacket. Matters become inflexible and we bind future generations to what we think, in our day, are the conventions. We stop those conventions from developing and evolving.

The second and much more dangerous question is that of the justiciability of conventions; that is, when conventions can be adjudicated by the High Court. There the potential for instability is vast. Imagine the chaos the country would have been in 1975 if, before despatching the politicians to the people, the actions of Sir John Kerr were brought before the High Court. Government would have been impossible for weeks. All the arguments that we hear from the republicans about great economic benefits would be totally undermined. Because of instability in Australia's political system, investors would pull their money out. This is precisely what happened in Pakistan when the president's powers were questioned by their equivalent of our High Court.

Some say that the justiciability of conventions can be overcome by putting in ouster clauses, which would prevent the High Court from adjudicating on these matters. But the experience of anyone who has studied administrative law would show that, even when parliament has created ouster clauses, the court has rent them down and adjudicated on the matters anyway. If we want to politicise the judiciary and to create instability then that is what will occur by codifying the constitutional conventions.

I wish to move to the issue of the difficulties of codification. As Gareth Evans said, someone was bound to quote that he had said that `codification is the labour of Hercules,' and I will admit to being that person. But the reality is, as Professor Craven outlined this morning, that it is quite impossible.

Quite independently of Professor Craven, I thought of what happened in 1977, with the Senate's casual vacancy Constitution alteration as a prime example of the problems in terms of codification. Following Tom Lewis and Sir Joh Bjelke-Petersen breaking convention by replacing Labor senators with non-Labor senators, the convention that has resulted and that was codified is that, if a casual vacancy occurs, it must be replaced by a member of the same party. It did not deal with independents and, more importantly, it did not deal with the question of what would happen if a party which the senator represented ceased to exist. This situation arose almost immediately when Raymond Steele Hall left the Senate to contest a seat in the House of Representatives and his Liberal movement had ceased to exist. A new convention had to be created- a new convention was born.

Trying to codify the powers of the head of state would present us with exactly the same problems. I do not believe that, when the founding fathers sat around to debate the Constitution, they would have contemplated that the events of 1975 would have occurred. And, yet, it is now an established convention that, if a Prime Minister cannot guarantee supply, he must advise a general election or resign. We cannot pretend, just as the founders could not have pretended, that we can foresee every eventuality.

My final point is a bit of a paradox in a way because, under a republic, you would have to codify conventions. Former Prime Minister Paul Keating recognised this, and he said that it was paramount to codify in the case of a popularly elected president. But it is just as important when you have a head of state chosen by other means. Even the McGarvie model would require codification because a brand new system would be created. The president would not necessarily act in the same traditions of the Governor-General and the conventions relating to the constitutional council that he has proposed would need to be codified and strongly spelt out.

All of these difficulties have caused recent converts to republicanism, like Malcolm Fraser, to declare that what is really needed- and I urge republicans to think about this- is a total rewrite of the Constitution, from scratch. Do not be fooled- there is no quick fix, bandaid solution.

In conclusion, if in 2001 we are to sing the battle hymn of a republic, then mine eyes must see the glory. For me, the glory is what we mainly stand to lose. That glory is the constitutional conventions, exercised by an impartial Governor-General, acting in the traditions of his office with those flexible conventions- something that all the proposed republican models fail in attempting to replicate.

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