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 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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Last updated: 21 October 2000