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TRANSCRIPT OF
PROCEEDINGS
Tuesday, 3+- February 1998
Page 12
CHAIRMAN- Before I
call Mr Ramsay, the Queensland Leader of the Opposition, Mr Peter
Beattie, has requested proxies for Mr Matt Foley and for Mr Glenn
Milliner at certain designated times. I will table that request.
Immediately following Mr Jim Ramsay, Mr Steve Vizard should be
ready.
Mr RAMSAY- Mr Chairman, fellow
delegates, fellow Australians, today's discussion is of
fundamental importance in the current debate. The question as
printed goes to the heart of our concerns as a nation. What
powers should the head of state hold in Australia and how should
they be defined?
The republicans, dressing up
their argument in the cloak of only wanting our own head of
state, are basically determined to remove the Queen and the Crown
from our Constitution and to substitute an alternative head of
state with powers yet to be clarified. The debate this morning
has demonstrated the wide range of options, the differences, the
fears, the uncertainties and the confusion that exists amongst
the republican proponents.
My hope is that the debate
will encourage us all to have a second look at the merits of our
present system. The way the Australian Constitution has evolved
throughout the 20th century and the various acts of parliament
related to its evolution ensure that Australia's Governor-General
will always be an eminent Australian. Furthermore, the
Governor-General's authority under the Constitution clearly
identifies him as Australia's head of state. If there is any
doubt, let it be clarified. That should not be called rubbish.
The Constitution demonstrates the way it works with the ensuing
act since 1901 that the Governor-General holds all the powers as
Australia's head of state.
The historic convention is
that the Governor-General is appointed on the recommendation of
the Australian Prime Minister. This ensures that a worthy
appointment will always occur. Woe betide any Prime Minister who
dared to abuse the responsibility. Such an action would stand
condemned- not by the Crown, which would always follow advice,
but by history, and, most importantly, by the people themselves
at the next election.
Under our present system, it
is the people who hold sovereign power, which is exactly where
the republicans claim they want it to be. It is there already.
Our Governor-General is entrusted with all the reserve powers of
a constitutional monarch. The link with the Crown in no way
threatens or compromises our national independence, but it does
give our Governor-General a unique position above politics.
Although bound by tradition,
custom and practice to act only on the advice of the elected
government, the Governor-General is able, if that government acts
without proper authority, to require it to go to the people by
way of a general election before it proceeds any further. This
unique mechanism- inherited along with the Westminster system
from Britain but now Australia's very own- is an invaluable check
on the abuse of power by any government in Australia, state or
federal.
Five years ago this was
acknowledged by the then Governor-General, Bill Hayden, who I am
glad is here as a delegate at this Convention. I told him that I
was going to quote him today, and he tells me he still holds the
view that he expressed then when he said:
The present system
works well. It allows us to have stable government in this
country. The head of state-
meaning the Governor-General-
is aware of the
restraints under which he must function.
He perhaps should have said
`under which he or she should function' to meet some of the
concerns of the delegates expressed yesterday, but the meaning is
clear. He further said:
They are
acknowledged all round and have worked since Federation quite
effectively. If we move away from that and there is no restraint,
then my apprehension would be that we could go through extensive
periods of quite unstable government.
Some republicans respond by
claiming they would wish an Australian president to have the
powers only of a constitutional monarch. If so, why have they not
produced such a concept? A number of suggestions have flowed from
their pens and we have heard more suggestions- a wide range of
them- as late as this morning. None of them work.
Let me give you just three
quick examples. Firstly, Malcolm Turnbull in his book The
Reluctant Republic argued that becoming a republic is so
straightforward and uncomplicated that we do not really need
lawyers to understand it. Does his suggested Constitution give
the president this reserve power of a constitutional monarch? No
way. According to Malcolm, if the president thinks the Prime
Minister is acting improperly, he must go and speak to him. If
the Prime Minister continues his alleged impropriety, the
president may then go and ask the High Court for relief. Only if
relief is granted may the president go back to the Prime Minister
and give him a second chance to behave himself. If the Prime
Minister remains recalcitrant, the president may then dismiss him
and require an election. That is a brief summary of Malcolm's
argument, but he did repeat it for those who were in the chamber
this morning.
The reserve power of the
Crown has effectively, under the Turnbull model, become a
majority decision of the High Court after an undefined period of
consideration and opinion writing. The result: months of
uncertainty, months of instability. Our Constitution may well
become a bundle of legal precedents of uncertain durability,
subject to the whims and views of members of the High Court from
time to time. It sounds to me like a lawyer's delight. But how
many Australians will relish that as a change for the better? I
suggest, not many.
My second example of the
republicans flows from Professor George Winterton. It was his
original republic Constitution that first brought my attention to
this debate as it was looming several years ago. I read his
proposed republic Constitution with interest. I wondered how he
was going to deal with this matter. He put in a section 60A, and
I may be paraphrasing it slightly, but this was the gist of it:
`The powers of the president will be those of the
Governor-General until the parliament otherwise provides.' Those
were the words. In one fell swoop ability to amend the
Constitution as far as these clauses were concerned was taken
from the people and given to the parliament- the protections
specifically put in by the founders of our Constitution with
section 128 all those years ago.
So I turn to a third
republican argument that came from John Hurst on this issue. John
has been a good friend in Victoria and a person I have discussed
things with on many occasions. He missed out on getting elected
to the ARM ticket for this particular Convention because he
generously put himself far enough down to enable others to come.
He described himself as a generous minimalist. He suggests we
give the president absolute power to dismiss a Prime Minister and
dissolve the House of Representatives at his own discretion `if
the government of the Commonwealth is breaching the Constitution
or persisting in unlawful behaviour.' According to Dr Hurst, the
exercise of this power shall not be examined by any court.
That sounds as though it has
simplified the whole problem. But just a moment; are we really
prepared to give this enormous power to a president without
constraint? At least, as Bill Hayden said, our Governor-General
is aware of the restraints under which he must function. They are
the inherited constraints evolving from our historic link with
the Crown. I know there are those who think we can break that
historic link and keep those conventions. Some say that it is a
myth to believe otherwise. I say, it is not a myth; it is a risk
not worth taking.
Hurst's argument is based on
the spurious claim, which he had in his book, that Australia was
born in chains and is not yet fully free. I have never heard so
much nonsense in all my life. No-one knows what changes we may be
unleashing in the checks and balances of our present Constitution
if we attempt to go down that path of separating the reserve
powers of the Crown, held by our Governor-General, from the Crown
whence they came. Hurst's argument, I believe, fails at this
point. Tampering with the Australian Constitution for the sake of
the symbols may put at risk those key elements that give great
protection against the abuse of powers by politicians- and I can
think of no better place to say that than in the Old Parliament
House at Canberra.
Very strongly, our argument
and our hope is that this convention, looking at all these
models, looking at all these options, will come to the conclusion
that not one of them is an improvement on our present system. Let
us not fiddle with this move to change to a republic. Those
issues that the real republican candidates have attempted to
bring up at this convention are certainly issues that Australia
and Australians can and should be discussing. But to be
discussing them in this forum where we are debating the
continuation of the constitutional monarchy in Australia is not
appropriate. We need to keep to the subject. I hope, delegates,
that we will come to the right and most constructive and positive
conclusion for Australia's future- which is to maintain our link
with the Crown, whatever other amendments or concepts we may be
looking to introduce into our Constitution.
CHAIRMAN- Thank you,
Mr Ramsay. We now have two more speakers, Mr Steve Vizard
followed by Professor Greg Craven, whom we might be able to
accommodate by perhaps running a little over time before moving
into the next phase. Mr Steve Vizard; welcome to this other
television studio.
Mr VIZARD- Thank you very much.
Mr Chairman and delegates, let us be crystal clear: the stated
position of the Australian Republican Movement is that in a
republic the new head of state should enjoy exactly and precisely
the same powers conferred today on Australia's Governor-General-
not one scintilla more, not one scintilla less. The Australian
Republican Movement's clear position is that whatever powers the
Governor-General enjoys today so should be the powers of the new
head of state- exactly, identically; no more, no less. We go
further: that consequently because no powers change, because
nothing is diminished, nothing is added, the balance of power
that exists between the Prime Minister and the new head of state
should be as identical as that balance which exists today between
the Prime Minister and the Governor-General- business as usual;
the same.
Yet, despite this proposal
for no change, today we have heard the opponents to a republic
mount three principal objections: first, that in a republic we
would not know what powers the head of state might enjoy-
unknown, uncontained, unfettered; and that, as a result of this
uncertainty, the delicate balance that resides between the
government and the Governor-General, the checks and balances,
would somehow be destroyed- pandemonium would ensue.
If indeed it was our
intention to support a model that dramatically tampered with the
Governor-General's powers, this might be a valid concern. But,
again, to knock this point on the head unequivocally, we do not
support any such material change. To the contrary; we propose
that as a matter of principle and as a matter of fact whatever
the Governor-General does today he should do tomorrow acting in
his own right as head of state. Indeed, for all intents and
purposes in matters of executive powers, the Governor-General is
simply the new head of state. The only difference- and it is a
critical symbolic difference- is that he or she exercises those
same powers in his or her own right, and not as the
representative of the Crown.
This brings us to the second
objection we have heard today: even admitting that the powers are
the same, identical, the new head of state will somehow be minded
to exercise these powers in a different way because he is no
longer acting as a representative of the Crown. The concern is
that it is only the symbolic connection with the Crown that keeps
him in check, that enables him to properly and justly exercise
his powers. Remove the symbol of the Crown, and the head of state
might go berserk.
In our view, this is flawed.
First, the Queen herself plays no active role in the government
of Australia. Even on the admission of those opposed to a
republic, the Governor-General alone has for many decades, in
fact, exercised those powers on a daily basis without
interference from, or indeed reference to, the Queen. That is a
fact. There are no practical checks and balances. There is no
daily overviewing by the Queen herself. There is no
circumscription, direction or advice. To the contrary; we have
relied on the good sense and good judgement and proper exercise
of those powers by the Governor-General as an Australian alone.
In fact, if not in law, an Australian alone has properly
exercised all those powers for many years. To remove the
reference to the Queen in this matter, as opposed to symbolic
matters, is to remove no actual safeguards, to remove nothing.
Secondly, if further evidence
of this is required on the few occasions where the active
intervention of the Crown has been sought, the Queen has been
swift and unequivocal in her response that the governance of
Australia's affairs and the exercise of these powers in relation
to Australia is a matter for Australia alone. Not only does the
Queen not participate in the exercise of these powers, she does
not want to participate.
Thirdly, and more critically,
it is demeaning to suggest that an Australian head of state will
only respect his or her democracy, will only exercise the
executive powers as they ought to be exercised, if there is the
spectre of the Crown breathing over the head of state's shoulders
like a schoolyard bully; that it is only the Queen's Chopper
Read-like presence that keeps Bill Deane from doing a runner to
Majorca with our gold reserves. The ultimate safeguard of the
exercise of these powers is not the perpetual daily scrutiny of
Her Majesty and never has been, but rather the character and
integrity of the eminent Australians privileged to hold that
position.
Does anyone seriously suggest
that but for the fact that the Queen had appointed him Bill
Hayden would have taken it upon himself to declare war on
Pakistan, or that the only thing stopping Ninian Stephen
dissolving both houses of parliament on a weekly basis or
appointing Rod Laver to the High Court was that the Queen had
once signed a piece of paper affecting his appointment, or that
it was only the Queen's regular visits to this country that stood
between Zelman Cowen and him commandeering a battleship and
engaging in dragnetting for dolphins? Does anyone seriously think
it was because of the Queen's connection to the office of
Governor-General that Sir John Kerr dismissed Prime Minister
Whitlam- an act that not only changed the face of Australian
politics but was a trigger for a generation of appallingly bad
impersonations of former prime ministers?
It was and will remain the
character and judgment of these men alone that saw them execute
their office as they did. It was the character and judgment of
John Kerr alone that saw him discharge his duties as he did. For
those opposed to a republic to condemn the identical powers of
the head of state as we propose is for them to condemn the powers
of the current Governor-General. If they belittle a proposal of
identical powers, they belittle the very democracy that we
currently have and that they so fully embrace.
The third principal objection
we have heard today is that, even admitting that the powers can
be the same, it would somehow be impossible to affect such a
transferral, that constitutionally we cannot give the head of
state the same powers as the Governor-General. This is simply not
the case. The simplest way to achieve an exact transferral of
powers without in any way tampering with them is by incorporating
these powers by reference.
Particularly, we think the
sentiment and the precise words set out in the Republican
Advisory Committee's partial codification model, and as
recommended by Working Group 4, represents the specific means of
achieving this. That model sets out that the heads of state
should observe the principal constitutional convention currently
acted upon by the Governor-General- namely, that the head of
state will only act in accordance with the advice tendered to him
by the Prime Minister or ministers. This can hardly be
contentious. It represents the current practice; it represents
the facts.
The draft also sets out the
current conventions relating to the dismissal of the Prime
Minister and the appointment of the Prime Minister. It seeks to
embody non-contentious conventions. But to the extent that the
conventions are contentious we would not seek to embody them in
the codified form. The conventions should be beyond dispute.
To amplify in the draft
submitted, clause 2 relates to the appointment of the Prime
Minister. Subclause 1 establishes the office of the Prime
Minister. Subclause 2 sets out the existing convention. The other
circumstances in which a Prime Minister may have to be appointed
are not dealt with specifically, leaving the general ministerial
appointment power, currently section 64, to operate.
Clause 4 of that draft
relates to the dismissal of the Prime Minister. This clause does
go further than restating the existing convention. It allows the
head of state to obtain a High Court ruling on government conduct
so that if he or she were to dismiss the government there could
be no question of the head of state forming his or her own
private views on what was or was not lawful. It allows the head
of state to send the government to an election without dismissing
it.
As to the balance of the
other powers, or the ones not expressly spelt out, we say they
should be incorporated by reference. Whatever they are, however
clear or unclear, they are assumed and granted to the head of
state- to some small extent a lucky dip, but the same lucky dip
we have lived with for the past 90 years and that we live with
today; no more, no less.
How does this proposal sit
with what the working groups reported on this morning in the
general position of the convention? Four of the working groups
concurred in their view that the head of state should enjoy the
same powers as currently enjoyed by the Governor-General.
Logically, this is also the position most acceptable to the
constitutional monarchists, and it is the position of the
Australian Republican Movement. Three of the working groups
resolved that the reserve powers of the head of state not be
codified but be incorporated by a reference- whole, intact and
untainted. Logically, too, this is the position most acceptable
to the constitutional monarchists, and this is the position of
the Australian Republican Movement.
Three of the working groups
took the view that at least one key non-contentious
Constitutional Convention observed by the Governor-General be
spelt out in fact- specifically, that we make law the existing
practice that non-reserve powers only be exercised in accordance
with ministerial advice. This is the position of the Australian
Republican Movement. It is remarkable the unanimity that has been
achieved even in this short time as we work towards shaping
outcomes for the future. (Extension of time granted)
Mr RUXTON- Your daddy
would be ashamed of you!
Mr VIZARD- Thanks,
Bruce. I have a story about an Australian who goes to a pub in
Ireland. He sees a whole lot of Irishmen standing around in the
corner laughing as numbers are rattled off. He says to one of the
Irishmen, `What are you doing?' The Irishman says, `We've been
here so often we don't bother telling the jokes anymore, we just
say the numbers. It saves a lot of time. Why don't you have a
go?' The Australian says, `No, I couldn't, I'm not a joke
teller.' The Irishman says, `No, have a go, have a crack at it.'
So the Australian says, `All right, 17.' All of the Irishmen
burst into hysterical laughter. He thinks, `This isn't too bad.'
The Irishman says, `You're a very good joke teller. Try another
one.' So the Australian says, `28.' They all burst into laughter.
The Irishman says, `Tell one more. You're on a roll here. You're
a very good joke teller.' He says all right, `67.' There is stony
silence. Then one by one they all start to burst into laughter
until they are on the floor. After five minutes of uproarious
laughter the Australian says, `What's with 67?' The Irishman
says, `They hadn't heard that one before.'
I am going to round it off
now. My dad would have enjoyed that though, Bruce. The ARM does
not want to disrupt the numbering system; we do not want to
tinker with the numbers. The powers that are well enjoyed and
well understood should remain the same. I hope that those who are
particularly opposed to a republic but who have agreed to work,
and indeed who are working, constructively to develop a model to
best compare with the current Constitution embrace the model
which we are developing and advocating for what it is- a genuine
endeavour to preserve the inherent strengths, the powers of the
Governor-General, complete and intact, of our democracy as we
consider and assess the symbolic benefits of moving toward a
republic.
CHAIRMAN- While
Professor Greg Craven was listed, I am afraid our time has
expired. What I intend to do is to call Professor Craven,
together with several other people who have given me an
indication that they want to speak on the powers, during this
next session.
You will recall that in our
program this was listed as speakers selected from the floor. What
we intend to do now is to call on successively from each of the
working groups somebody to formally move and second each
successive resolution. As we go through them we are going to move
a bit outside the ordinary rules of procedure and have a
succession of resolutions before us at the one time. But they
will be put on the two screens.
From there, in the course of
your general contributions, if you wish to move amendments or
speak to any resolution that particular resolution can be put on
the screen. If you wish to move amendments to resolutions, would
you please put them in writing and hand them in to the
secretariat so we are able to have them put on the screen so
everybody can observe them.
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