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TRANSCRIPT OF
PROCEEDINGS
Tuesday, 3 February 1998
Page 11
CHAIRMAN- Those listed
who are left to speak on this `powers' item are Mr Bullmore,
Senator Bolkus, Ms Witheford, Mr Ramsay, Steve Vizard and
Professor Greg Craven, as well as Peter Costello. None of them
are actually in the chamber at the moment. Prior to suspending
for lunch, we will take note that, unless they are present
immediately after lunch, we may well need to adjourn this matter
until 3 o'clock, when we come into the working group sessions.
At the same time, there has
been prepared an analysis of each of the similarities and
differences amongst the proposals of the seven working groups,
which is available in delegates' boxes. It may prove helpful in
analysing each of the options and in taking the votes later this
afternoon.
Proceedings
suspended from 12.59 p.m. to 2.15 p.m.
CHAIRMAN- Delegates,
we will resume our proceedings. You will be interested to learn
that I have just had a note from the Chief Hansard Reporter that
apparently such has been the interest in the Hansard
transcript of the proceedings of this convention that there will
now be two Internet sites on which the transcript may be accessed
and downloaded. Hansard's website was originally
hyperlinked to the Convention site. Now the two sites will
operate separately. The site addresses are listed on the inside
cover of the daily proof Hansard, together with the radio
frequencies on which the proceedings of the Convention are being
broadcast. Equally, the demand for the hard copy daily proof Hansard
has necessitated the printing of additional copies. These will be
available to interested parties shortly.
The proceedings before the
Convention are to consider the question: 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? You will recall that we have had
reports from seven working groups and we have been debating the
recommendations of those working groups. I call on Mr Peter
Costello, the Treasurer of the Commonwealth, as the next speaker.
Mr PETER COSTELLO- The
federation of the Australasian colonies and the creation of the
Commonwealth of Australia formed a new national government, a new
nation. It was a new shoot from an old tree, in time a new shoot
that would grow to maturity and stand independently and
self-sufficiently. It would, for all purposes, be free and
self-standing although unquestionably it had been derived from
another.
Some of the delegates to the
Convention have argued for a republic as the last step to
independence. Some have spoken of it as a decision to leave home.
To be frank, I find this line of argument repulsive and, needless
to say, unconvincing. It has never occurred to me in my lifetime
that Australia was not an independent nation. I have never seen
any evidence of its independence being compromised by its
constitutional arrangements, and I venture to say that all those
who have represented it internationally have done so on the basis
that its sovereignty lies solely in Australia and is understood
to do so by its neighbours in the world community without
question.
It is also argued by some of
the proponents for a republic that if in reality the nation is
completely independent, even a de facto republic, the wording of
the Constitution should be changed to match the reality. But, to
be frank, the words and the reality of our constitution are at
variance in so many areas that if the aim was a matching one-
words to reality- we would start in more important places than
this. The Constitution makes no mention of a cabinet, an obvious
feature of our government. It makes no mention of a first or
prime minister, which is an obvious feature of the government.
I mention these examples to
illustrate the point that the Constitution must be read and
understood in accordance with history and convention. This is the
case with all great historic literature, especially where we are
looking for modern meanings in ancient texts. It is practically
impossible to formulate a comprehensive written manual to apply
to the myriad of human behaviour. Even more so, I believe it to
be practically impossible to write a comprehensive manual to
cover circumstances now and circumstances now unthought of but
certain to arise in future centuries. This is one of the
weaknesses of a written constitution. It is not unique to
Australia. It is a problem we share with those other countries
that have decided to reduce and enshrine their constitutions in
one written document.
It is sometimes also said
that the Constitution is not an inspirational document, not a
document which states values or ideals. This may be so, but for
my own part I do not think this an especial weakness. I am not
convinced the purpose of a constitution is to uplift the soul. In
my view the purpose of a constitution is to set out the basis for
responsible and civil government to allow a society in which
language and literature, hopes and aspirations that can uplift a
soul will flourish.
Our constitution starts with
the historic institution of the monarchy of Great Britain and
adapts that office successfully by history and conventions to
modern Australia. As adapted and applied, it works remarkably
well and yet if there were not a substantial disquiet over the
institution, a disquiet likely to grow rather than recede, we
would not be here. It was this disquiet, recognised by the
current government, which led it in opposition to pledge to hold
this convention, if elected. The Convention is taking place in
fulfilment of that election pledge.
It is commonly said that all
this argument is about is whether we want an Australian as our
head of state. If that were all we wanted, one of the options to
fix it would be an Australian monarchy but, in truth, the problem
is more the concept of monarchy itself. The temper of the times
is democratic; we are uncomfortable with an office that appoints
people by hereditary. In our society in our time we prefer
appointment by merit.
The system works well but a
key concept behind it bruises against reality. The only active
role now left for the monarch to perform is, upon the advice of
the Prime Minister, to appoint the Governor-General and, on the
advice of the Prime Minister, to dismiss the Governor-General. If
this function were to be performed by a council, there would be
no significant change to the current structure of our
institutions. The Governor-General, by convention an Australian,
would be appointed to hold executive powers subject to the
restraints and conventions of the Westminster system of
government. The active function of the Crown would be taken over
by an Australian or Australians appointed on the basis of service
or merit.
More importantly, there is
every reason to believe that conventions that have been
established and adopted under the current arrangements would
continue. This is because the office of Governor-General would
continue by whatever name. It is logical to think that the
exercise of the power of appointment and dismissal would continue
under the same conventions. The proposal along these lines, known
as the McGarvie model, is one that I would support without
hesitation.
I turn now to the question of
whether we should go further. Under our system of constitutional
monarchy, the Governor-General holds executive power in name but
exercises it upon the advice of the elected government. In
reality, the Governor-General has no substantive executive power.
Should we appoint a head of state with substantive executive
power, power currently exercised by the Prime Minister or
ministers of the Crown answerable to parliament? Such a system
would separate the legislature and the executive; that is, it
would increase the checks and balances and the exercise of power
in our system.
For my own part, I believe
the checks and balances in our system are already extensive. They
are certainly more than those that apply to the Westminster
system of government in Britain. The Senate has unlimited powers
to reject legislation including the power to bring down a
popularly elected government, our constitution is a federal
constitution with states exercising powers and Australia has an
entrenched judiciary not at all unwilling to strike down
government legislation.
There is another alternative:
a president directly elected but with no substantive executive
power, along the lines of the Irish model. Whilst I think this
works quite well in Ireland, Australia is different. In Ireland
it has the capacity to produce a president with a basis for
emotional support but without a conflict of powers in relation to
the elected government. It does not produce a non-politician. In
my view, any person who wins a contested election is a
politician.
The difference in Australia
is a powerful Upper House with the power to reject money bills.
This means the role of the Governor-General can never be
ceremonial. If the Senate did not possess the powers to reject
money bills and if it were impossible for the Senate and House to
deadlock, an Irish model would be feasible. My assessment is that
any section 128 referendum which sought to strip the Senate of
its power to reject money bills to pave the way for an elected
ceremonial president would almost certainly face defeat.
Mr GARETH EVANS- Come
aboard, Peter. Well, we've got your support, Peter; come on!
Mr PETER COSTELLO- In
the circumstances, those who genuinely wish to resolve the
republican problem in their lifetime, Gareth, would not see this
as a feasible alternative.
This brings me to the
proposal that a president be elected by a two-thirds majority of
both houses of parliament. As far as I can gather, the argument
in favour of this alternative is that the people, through their
elected representatives, get a say in the head of state. This
proposal comes with or without add-ons. The latest add-on is
that, whilst appointment would take a two-thirds majority of both
houses, dismissal would take a simple majority of one. I leave
aside the question of why you would want to entrench an
appointment without entrenching the dismissal.
The two-thirds parliamentary
majority has always left me cold. It is not a directly elected
presidency deriving legitimacy from the votes of the electorate;
nor is it directly akin to the current Westminster practice. In
effect, a president appointed with a two-thirds majority of both
houses would enjoy a greater mandate than the Prime Minister, who
needs a majority of only the House of Representatives. It is an
attempt at compromise which would overcome the problems with the
institution of the monarchy but, in my opinion, sow the seed for
further constitutional trouble. I doubt it would be the end of
the matter. It might be the first republic, but I am not sure it
would be the last.
I judge that the disquiet or
uncomfortableness with the concept of a monarchy will continue to
build. We should address this and not allow people to use it to
build other agendas. I am chastened by the Canadian experience. A
simple attempt to repatriate the Constitution and institute a
charter of rights has led to what is now described as mega
constitutional politics, raising questions of succession,
distinct cultural rights, sovereignty to indigenous people and a
whole lot of other issues which have been advanced in a climate
of general flux and change.
But I am for change. I would
like to see Australia deal with the issue of a republic- not
because of what others think of us but because of what we think
of ourselves. Those who are advocating radical constitutional
change are, in my assessment, advocating certain section 128
defeat. The history of previous section 128 referenda should give
us a realistic focus. The public is very reluctant to change the
Constitution, and its reluctance grows as the extent of the
change grows. (Extension of time granted)
The unease at the centre of
our constitutional arrangements is not because they do not work
but because the symbols which underlie them are running out of
believability- and this will gnaw at legitimacy. I am not for
change at any price but I do believe that in changing we could
secure and safeguard what is best, that by directing it we would
get a better outcome than allowing pressure to build up and
explode, and that history and convention makes such a change a
feasible and workable constitutional improvement.
CHAIRMAN- I call on Ms
Anne Witheford- Mr Eric Bullmore's name is listed; I do not know
whether he is about but, if he is not here fairly shortly, he
will not be able to speak- followed by Jim Ramsay, Steve Vizard
and Greg Craven.
Ms WITHEFORD- It has been said
by many that nations are built not by constitutions but by
people. Cliche? Yes. Rhetoric? Of course. True? Absolutely.
The question of what powers
our new Australian head of state should have is not one in which
many young Australians have traditionally been very interested.
Thoughts of legal jargon and verbose political waffle come to
mind or rather confuse the mind of most young Australians when
this question is posed. Yet I choose to speak on this topic today
to argue that it does not have to be this way and that it must
not be this way.
For the health of our present
democracy, for the guidance of our office holders and for the
benefit of future generations we must better spell out the
fundamental and common principles of Australian government. It
is, after all, our Constitution- the Constitution of the people
of Australia. It must be a document and guide for all
Australians- not just the legal elite. Yet a culture of knowing
about our Constitution is conspicuously absent in this nation.
Few would be aware of what the Constitution says or, perhaps more
accurately, what it does not say about the powers of the
Governor-General. In fact, a large majority of Australians do not
even know that we have a constitution. But can you wholly blame
them?
The basic problem is that our
Constitution does not say what it means, nor does it often mean
what it says. For too many people it is incomprehensible and
inaccessible. It does not accurately reflect the practical
workings of our system of government.
Fellow delegates, it is the
belief of the Australian Republican Movement that an Australian
head of state should perform the role and hold the same powers as
the current Governor-General, but we believe that these powers
should be partially codified. While the President's role should
be largely ceremonial, he or she should also serve as a
constitutional umpire. These powers should be at least in part
spelled out in an amended constitution in an Australian republic.
It is true that our political
system is based on complex legal provisions, unwritten legal
conventions and a smattering of political improvisation as the
circumstances require. Some of the legal conventions in the
exercise of the Governor-General's powers are vague and
uncertain. Translating these conventions into the written word in
our Constitution would be legally undesirable as well as
politically difficult. It would be legally undesirable on the
basis that it is necessary for the head of state to be able to
deal with unforeseen future contingencies.
For example, do you really
think that our founding fathers would have been able to foresee
the constitutional crisis of 1975 and the dismissal of a
democratically elected government? It would be practically
unachievable by virtue of the simple and intransigent fact that
the community is divided on how the head of state should react in
the event of a Senate denial of supply. I strongly believe that
the community would be reluctant to consider diminishing the
powers of our head of state. The head of state plays an
important, even if last resort, role as a constitutional umpire.
At the same time, the
fundamental non-contentious principles agreed by all should be
spelt out and simply expressed in our Constitution. These
conventions are conspicuously and wrongfully absent, despite
their status as fundamental principles of our democracy. We have
the responsibility to make our Constitution more meaningful.
Spelling these principles out would ensure that the document that
guides our system of government reflects the real operation of
our political system. This will only strengthen our democracy.
After all, part of the transition to an Australian republic is
about making sure the system of governing ourselves more
accurately reflects political reality. We now have a great
opportunity to correct the quirks and ambiguities of the status
quo. Indeed, we have the responsibility to seize the day.
One of the most critical
issues in this entire debate is that we make the Constitution and
the republic people friendly. By this I mean that the
constitution, where possible, should be written in language which
can be understood by all Australians, regardless of legal
background, education, gender or age. Similarly, I believe that,
where possible, the Constitution should clearly define our system
of government and make understanding it possible.
The criticism that the task
of doing this is too hard, that it just cannot be done, is
legally ignorant. It is possible to strike the appropriate
balance of enshrining the basic principles of responsible
government while providing for the flexibility of unforeseen
circumstances. The notion that this task is politically too
difficult merely says that we should work harder at it. It is not
impossible, but it does require the constructive political will
of those assembled here. Spelling out these powers will make our
Constitution more meaningful. It will provide the people of this
nation- the ultimate beneficiaries of the Constitution and the
ultimate source of its authority- with a sense of ownership of
the legal document which is the foundation of our nation.
So what precisely are these
core non-controversial principles; these fundamental existing
practices central to the functioning of Australian democracy? The
Australian Republican Movement believes that we should enshrine
the following principles. In the first place, it is a fundamental
principle of our Westminster system of governance that the head
of state should always act on the advice of the Prime Minister,
except where the Constitution provides otherwise. At present, the
Constitution is silent on this fundamental fact; a fact that is a
practical reality of Australian political life. Prima facie
section 61, which invests executive power concerning the
Constitution and the laws of the Commonwealth, confers near
dictatorial powers on the Governor-General. However, as we know,
this is not the case- and nor should it be the case for an
Australian president.
The Australian Republican
Movement proposes that the existing practice that non-reserve
powers should only be exercised in accordance within the
government's advice should be clearly stated in the Constitution.
Secondly, our Constitution should state that the head of state
shall appoint as Prime Minister the person whom he or she
believes can form a government with the confidence of the House
of Representatives. As an example, in the unlikely event of a
hung parliament, the head of state should be able to appoint a
Prime Minister when parliament itself cannot do so by virtue of
there being no working majority.
Thirdly, our Constitution
should clearly spell out a mechanism by which the head of state
can remove a Prime Minister in exceptional circumstances. For
example, if a no confidence motion were passed against the Prime
Minister, clear steps should be outlined to allow the president
to have a clear path of defined action. Further, the Constitution
should provide power for the head of state to dismiss the Prime
Minister when he or she breaks a law or acts in contravention of
the Constitution.
The events of November 1975
do not loom large in my mind. I was a one-year-old at the time.
They will, however, be prescient in this debate. Regardless of
the merits or otherwise of the conduct of Sir John Kerr, it is
fair to say that the level of resentment, angst and derision this
series of events created illustrates that we must better spell
out and understand the powers of our constitutional umpire.
To quote George Winterton,
`Australia has had almost a century and a half of experience in
operating a Westminster system and adapting it to changing
needs.' I believe that partial codification of the powers of an
Australian president represents merely a further adaptation of
this system. Neither an Australian president nor codification
represent the introduction of an alien political culture. Rather,
they are examples of the refinement of that currently in place.
Fellow delegates, this is our
chance to seize the day, to seize the opportunity to spell out
the rules of our democracy for every citizen to see. It is not
too hard a task. It is not undoable nor impossible. But it is a
challenge to which we can and must rise. In short, it is a
necessary task and one to which the future generations of this
nation wait in earnest.
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