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 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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Last updated: 21 October 2000