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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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