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 14

CHAIRMAN- We will now take speakers from the floor for five-minute intervals. They may give notice of amendments that they intend to move and move amendments that they wish to move. The three speakers of whom I already have notice are Mr McGarvie, Mr Teague and Mr Michael Hodgman.

Mr MCGARVIE- I would like to speak about codification. I am totally opposed to codification. My opposition falls into two categories. I emphasised in my speech yesterday the desirability of resolving this public issue without distracting people from voting because they fear or distrust the means being used. My second objection is that codification is inconsistent with our system. It is a panacea, adopted to cloak the inherent defects of some of the models that are being advanced here.

There are difficulties in codification. What better example could there be than the history of the proposal for dismissal in the model which has a president elected by a two-thirds majority of both houses? Originally, it was recommended that dismissal be by a two-thirds majority of both houses. Presumably the authors of that were quite unaware that that meant that the president would be undismissable.

I raised this issue in Australian newspapers on 1 May. It was not, apparently, appreciated by the sponsors of those models until exactly nine months later yesterday, when it was changed to dismissal by a majority of the lower House. The other objection which I raised on 1 May has still not been addressed. No-one has yet looked at the fact that the presidential power would include power to adjourn, and power to prorogue parliament and stymie dismissal.

Very intelligent people have engaged in this process of codification. They are still patching. They are still seeking to alter. That should be a very good warning to us all. It will take an enormous amount of time. It is Dr Evatt's idea. He put it forward in his book in 1936. Every attempt to reach consensus since has failed and if the monarchists here were cynics they would have said, `Yes, we will adopt a republican president model, but everything must be codified.' That would have adjourned proceedings for another 60 years. They did not.

There is a balance between head of state and head of government now which allows for flexibility and which allows for future development. Anyone who doubts that should read Dr Evatt's book. Dr Evatt was a very bright man. The things that he would have codified, such as having a codified provision on which law courts would decide whether a government had a mandate for a particular bill going through parliament, were obviously sensible and rational then or else Dr Evatt would not have adopted them. They would be laughed out of court today. That shows how important it is that we not stultify ourselves by putting in codes this great developing constitutional system that has given us good democracy.

I will say something briefly about the reserve power. I think everyone would agree with what Malcolm Turnbull said in The Reluctant Republic, that the complaint against Sir John Kerr was not dismissing Mr Whitlam; it was doing it too soon and without warning. It has been emphasised that while the Senate has power to reject supply that reserve power needs to be there. It is actually an exception from the convention that the Governor-General act on the advice of ministers. The sanction against misuse of that power- and I say this as one who has been a Governor; one thinks about these things- is that at the time when one occupied a position like that one is of advanced years and one's reputation is very, very important. Having seen what happened to the reputation of Sir John Kerr, there will never be another Governor-General or another Governor who will depart from the ordinary precepts that cover it. I support the motion and I oppose codification root and branch.

Mr TEAGUE- The same powers, no more and no less. There are, I believe, a clear majority of us in this chamber who want to see in any new republican constitution a transfer from the powers of the Governor-General to the powers of the president the same powers, no more and no less. I, a former Liberal senator for 18 years from South Australia and the No. 1 Australian Republican Movement delegate from South Australia-

Mr RUXTON- Thank goodness for the `former'.

Mr TEAGUE- from everywhere else but from Bruce's corner, am wanting now to appeal to all those in this chamber who have not yet made up their minds on the votes we are to take today. We have seven resolutions before us from the seven working groups. I believe that three of these resolutions can be supported by this Convention today and for the resolutions group to look at the wording of those three resolutions and to bring them back in an integrated, cohesive form as part of the makings of the model that can then be put on the final day. So pro tem, and without great inconsistency, I urge you strongly to support resolution No. 1, the one that former Governor McGarvie has just strongly spoken in favour of. Resolution No. 2 is essentially the Keating government's model for a republic: codification only to the extent of reference as set out in the 1995 model the then Prime Minister put forward and that the group has argued for today.

The third and final resolution that I believe we can all seek to support is resolution No. 4, which is for partial codification. It has been well argued by Michael Lavarch, by Malcolm Turnbull, by Anne Witheford and by Steve Vizard- Steve very effectively summed up the issues just a few minutes ago- that partial codification is realistic, even if a bit ambitious. It is much more ambitious than No. 1 and No. 2. Let us have No. 1 and No. 2- we can fall back on that- but let us see whether we can get No. 4. If we can get partial codification in the form that was set out by the Republic Advisory Committee, then with contributions made by Professor Winterton, Malcolm Turnbull and Lois O'Donoghue it is their words we are directly commending in the circulated material. Let it be shown now.

Let me say very briefly that I believe it does not matter what happens to resolution 3- that overwhelming one, as Mary Delahunty put it. The substantial ones that remain are 5, 6, and 7. I am expecting that those who support the status quo will support No. 5. We understand that. It is my urging of all of you who do not support the status quo that you vote against No. 5. That is the status quo. My colleague Peter Costello just now has gone way ahead of that in saying that the symbolisms of Australia at the moment are out of date and we need change. We are going to go ahead I believe with the words of 1, 2, or 4. Certainly anyone in the chamber who is wanting change should not support No. 5.

No. 6 and No. 7 are both too huge, too ambitious. One of them is the consistent ambition of my good friend former Senator Gareth Evans. It includes within it- this is No. 7- a denial, a change, an abolition of the Senate's power over supply. The small states will never agree to it. I do not agree with it. No. 6 is a collage that tries to enlarge the head of state's power. I believe that the majority of us here will not support it.

In summary, in all due respect to every delegate here, I urge you to support in today's voting No. 1, No. 2 and No. 4, and to vote against all of the others.

DEPUTY CHAIRMAN- The next speaker is Michael Hodgman, followed by Greg Craven, followed by Gareth Evans.

Mr HODGMAN- Mr Deputy Chairman and fellow Australians, make no mistake about it: this is the finest Constitution in the world- no ifs, no buts. I love it, I will defend it and, if necessary, I would be prepared to die for it because the rights and freedoms which we enjoy today-

Mr CASTLE- The acting Premier of Tasmania.

Mr HODGMAN- no, you will be waiting a long time- are in this Constitution. The Hon. Richard McGarvie is so right: they are not codified. That is why they are great. The great strength of this Constitution is that the royal prerogatives, the executive discretions, the Governor-General's powers and the fundamental rights and freedoms of all of us protected by the prerogative writ are not defined. That is exactly as it is in the unwritten Constitution of the mother of parliaments.

Do not think it was a mistake that the founding fathers determined that we should unite in one federal, indissoluble Commonwealth under the Crown. It is the Crown which is our great protector and our great strength. The moment you codify it, the moment you interfere with it. The moment you tamper with this constitutional tapestry, pulling out a thread here and a thread there for minimalist satisfaction, you destroy it.

Read Professor George Winterton's book and find out what happened in Ireland. I am one-eighth Irish and I am Catholic to boot, so I can tell you this one. In 1921 the Irish discovered to their horror that they had abolished all the royal prerogatives. They had no Chancellor of the Exchequer. For a time they could not impose or collect taxes.

Look at what you do to the High Court of Australia. Have any of you republicans had a look at section 75 of the Constitution which expressly sets out the original powers of the High Court of Australia? Look at them: `In all matters arising under any treaty'- that is part of the royal prerogative. In relation to matters `Affecting consuls or other representatives of countries', that is part of the royal prerogative. In relation to matters `Between States, or between residents of different States, or between a State and a resident of another State', that is the royal prerogative. And last but not least, `in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth'. The great defender of the rights of the citizens, where do you get your prerogative writ, you republicans, when you wipe them all out?

What happens if you codify them and miss them out? To codify is to proscribe. To proscribe gives you a situation where the rights of Australians are in the hands of the very politicians in Canberra, you arrogant, elitist republicans, to whom the people of Australia have said- 73, 74 and 78 per cent of people have said this- `If we're going to have a republic, we want to elect the president.' But Malcolm Turnbull, sadly my own Prime Minister and some in the Labor Party have said, `Oh, no; we wouldn't leave such an important decision to the people of Australia.'

Let me tell you this: I will fight the republic right down the line, but if it comes to the crunch, don't tell me that Australians will not have the right to pick their own president. I am a First Fleeter descendent. My relatives fought and died in the Boer War. Private Vincent Hodgman died. Don't tell me Australia was not a nation at Gallipoli. Don't tell me that Australia was not a mature, independent nation with the statute of Westminster. Don't tell me that Australia was not a mature, independent nation with the Statute of Westminster Adoption Act of 1942. And don't tell me that Prime Minister Hawke mucked it up with the Australia Act of 1986.

What are you all on about? This is the greatest Constitution in the world. And you want to play with it, tinker with it, to satisfy a few chardonnay-sipping socialist republicans in Sydney or wherever. I will tell you something for nothing: in Tasmania there were six positions up- two republicans distinguished at that; that is all they got. We were only 300 votes off getting four constitutional monarchists. Have a look at the situation in South Australia. The leader of her Majesty's loyal opposition in that state, the Hon. Mike Wran, I have a healthy regard for. He correctly predicted to me at the Adelaide Cup what the result would be in South Australia. Have a look at the situation in Queensland. Have a look at the situation in Western Australia.

I will conclude. If I were Machiavellian, which I am not, I would say to you, `Yes, put this resolution through; don't let the people vote on it'- that would guarantee the death of the republican campaign- `and, secondly, start codifying the prerogatives, the rights, the freedoms.' I tell you what, the people of Australia will throw that out neck and crop. The Hon. Richard McGarvie was right. I have tried in my own inadequate way to support what you say. So you have got my support 150 per cent. Thank you.

DEPUTY CHAIRMAN- Professor Craven, the original intention had been that these sparkling five-minute contributions would be taken from your own places. But we seem to have established a precedent. You do not feel strong enough to break it?

Professor CRAVEN- No. Mr Chairman, I stand to support the resolutions of the working group on which I served, Working Group 1, which as everybody here would be aware represents the most minimal option before this Convention. Even so, I would point out that that working group has been prepared to move towards those who might want something more. There is a minor modification which provides the Governor-General will always act on advice. Reservation and disallowance will disappear from the Constitution.

I would say for my own part, although I do not know whether I go for all the members of my working party, that I would be prepared to consider the question of incorporation by reference, so long as there was an appropriate clause of non-justiciability in there. That is something that one would have to see come back from the resolutions group. What I would not do, with great respect to my colleague Mr Baden Teague, is countenance option 4. Option 4 is partial codification, but frankly it is not partial trouble. The great advantage of option 1 before this Convention is simple: it is winnable at referendum.

Full codification would involve fighting- and I here address my remarks particularly to the republican delegates- on two fronts. It would be the constitutional equivalent of the Titanic, and I do not propose to go down with that vessel. I think you have to ask yourself a question: do you want a republic, is that your game, or do you want codification? You are not going to have both. You do not need to have both. You do not need codification. As Mr Vizard so ably pointed out, there does not seem any present danger of Sir William Deane running amuck. As I was at pains to point out, you will not get the transparency you might hope for from codification. You will not be able to codify them effectively and with consensus and you will not be able to instil flexibility.

The real question you have to ask is why you would want to try when it presents such a danger to your cause. May I suggest an answer to that- and, if it comes across as an accusation, it is an accusation against me as well. There is in all these exercises something called founding fathers syndrome, or in this Convention, mercifully, founding parents syndrome: the enormous temptation to put one's signature at the bottom of the Constitution. I do not want my signature at the bottom of the Constitution; I want a good Constitution, and that is what we all should want. We should forget codification as our tilt- if that is what it is- at constitutional immortality.

We must have, if there is to be a republican proposal, a defensible position; a position defensible at referendum. As someone remarked to me at lunch, this referendum will not be conducted exclusively in Brunswick Street and in Bondi. It will take place in unfashionable places like Perth and Glen Waverley as well and you will have to convince those electors just as firmly as those of the more `enlightened'.

I think we should be cautious in relation to the Irish model. I have had the virtue of reading the Irish Constitution from beginning to end. I fear that is a virtue that may not be shared by some of its greatest adherents here today. It is an admirable constitution, the Bunreacht Na hEireann, in Ireland. But the thing we must remember about comparative constitutions is that constitutions are like cane toads: introduced out of their element, and their natural predators and balances may not exist. I would caution for that reason against the power of referring a bill to the High Court. This is a potent power for a president to stigmatise the action of an elected government as unconstitutional. It is a power whose consequences are untried and unpredictable, and I warn you against it.

The only exception to codification of course is as my working party said. Were we to adopt what I regard as the ruinous course of an elected head of state or the marginally less ruinous course of a head of state dismissible only by a two-thirds majority of parliament, then full codification would be necessary. But I think, as I said this morning, that would simply be a case of bowing to the grimmest of grim necessities and a necessity that we must hope never arises. I commend the report and the resolutions of Working Group 1 to the Convention.

DEPUTY CHAIRMAN- There are two people who have indicated that they want to move amendments from their working groups. I understand they can do it quickly. We need to get the paperwork done so that we are in a position to have an up-to-date version. Julie Bishop will move for her group and then Malcolm Turnbull will move for his group.

Ms BISHOP- Just quickly, there are a couple of points of clarification in respect of the resolution of Working Group 2. The matrix that was put out indicated that we were suggesting codification of the reserve powers. That in fact was not the case. It was to include in the Constitution a clause specifying that the powers of the head of state must be exercised in accordance with existing conventions, as opposed to codifying the reserve powers.

When one looks at our resolution included in the papers circulated this morning, our working group has suggested an amendment along these lines:

In order to ensure that the existing conventions continue to apply to the exercise of the reserve powers by the new head of state, if elected by a two-thirds majority of a joint sitting of the federal parliament or by the McGarvie model, and dismissal is by the Prime Minister or a simple majority of the House of Representatives, that an express provision be inserted in the Constitution to incorporate by reference the existing conventions governing the use of the reserve powers.

Subparagraph 2 is taken out because we suggest it is more elegantly expressed in the amendment, and paragraph (b) remains: `If elected by popular or direct election that the powers be limited and specified.' I so move.

Ms THOMPSON- I second the motion.

Mr TURNBULL- I foreshadow an amendment to resolution 1, which was Greg Craven's resolution, to add at the end of the first paragraph the words `which would be incorporated by reference along the lines of the language at page 94 of the Republic Advisory Committee report'. I do not think Professor Craven will have any trouble with that, but that is just so there is some language which said, apropos the reserve powers, they will be governed by the conventions that have hitherto applied. I foreshadow an amendment to resolution 2 that paragraph (a)(ii) be deleted.

DEPUTY CHAIRMAN- That has already been moved.

Mr TURNBULL- Fine. In that case, I have a third amendment. I move:

That resolution 1 and 2 be considered together.

They would now be substantially the same.

Professor CRAVEN- I second the motion.

Mr GARETH EVANS- Without repeating any of the things I said this morning in support of the resolution of Working Group 7, I want to say a couple of things about what is involved in that resolution and to respond to some of the objections and challenges that have been made to it. It is, in fact, the boldest of the resolutions before the conference both in the degree of codification that is contemplated and in the degree of limitation of powers of the head of state and the Senate as well that is also contemplated by it.

I should add in response to what Greg Craven said a moment ago, though, that it does not by any means go all the way down the path of the Irish Constitution, although in the respects that I have mentioned it has much in common with the Irish Constitution. In particular, resolution A from Working Group 7, which I am moving, makes no provision for any increase in the powers of the head of state by way of referring bills to the court. That is the subject of a separate resolution and should not be confused with the matters in issue here.

The argument for Working Group 7's resolution A- the codification and strong limitation model- is twofold. First of all, it is worth doing in its own right because there is too much that is vague, uncertain, ambiguous in the existing Constitution and which deserves to be clarified and also because there are simply too many untrammelled discretions in the existing Constitution which also deserve to be limited.

The second argument for it is a quite different one. It is essentially the political one that it is absolutely necessary to embrace something like the Working Group 7 resolution if you want to go down the direct election path so far as the appointment model for the head of state is concerned. Frankly, there is no chance whatever of winning Australian Labor Party support for the direct election model- and I would suspect the support of many other people- without a very strong codification, a very strong limitation of powers model associated with that and without also addressing the problem of the Senate's power to block supply. For that reason alone, if you have enthusiasm- sneaking or otherwise- for the direct election model, please take seriously the necessity to go with us on the codification issue now before us, even though the codification and limitation model that I am proposing does absolutely stand on its own feet.

The opposition that has been expressed to all this has essentially been on three grounds: first of all, from some people here that the powers should not only not be reduced but also should be enlarged by the head of state, including in the context of a directly elected head of state. I think that view is simply quixotic, frankly, in the circumstances. If it is put in terms of giving the people's representative- thus now directly elected- something more to do to reflect that people's representative status, that additional status and additional power would be acquired only at the expense of other people's representatives' powers and status and would be a recipe for unholy constitutional chaos within a very short time of the new system being introduced.

The second kind of objection we have heard to this particular proposal is that you cannot technically do it; that however much you try you can never anticipate every situation that might arise and have a properly laid out rule to deal with it. In response to that I can only say that I have been wrestling with this issue on and off for nearly 20 years now in various capacities, and I am simply not persuaded as a technical matter that that is true.

I think an awful lot of thought and effort have gone into devising ways through these various dilemmas. There is a good model before us in the RAC. There are a lot of good provisions in other constitutions from which one could selectively embrace and the job can in fact be done. But, at the very least, even if you did at the end of this exercise leave some matters unattended to which might arise unexpectedly in the future, you would have dramatically circumscribed the area of uncertainty as compared to that which exists at the moment.

If at the end of the day there are some situations which arise which have to be addressed politically because there is no capacity for an umpire to deal with the situation, I do not think we should be too alarmed about that possibility. There is an awful lot of things in politics that can be resolved politically when there is no other way for an issue to be taken forward. Certainly that is what would have happened I think in 1975.

The final argument that you hear against this over and over again, and probably the strongest of all the arguments that have been put against Working Group 7 model, is that it is simply not practically or politically feasible to be as adventurous as I am proposing; that you could never get up a referendum proposal as far reaching as this. That is a matter to be tested, and the judgment of delegates around this chamber is a judgment that I am very interested to hear.

The biggest concern given the need historically for referendums to be supported by both major parties if they are ever to move forward is whether we could get the support of the coalition for something of this kind. Maybe that was a little implausible before today, but having heard that statesman like contribution from Peter Costello this afternoon a whole new window has opened. (Extension of time granted) Peter Costello is a man who, in the light of what he said here this afternoon, clearly has much more than just a sneaking admiration for the Irish Constitution. From what he has said, he is obviously someone who is attracted to a model which goes the whole way in terms of limiting the powers of the president and, in particular, attracted to a model which knocks off the power of the upper house to block supply. In taking that view, as I am sure he does, he is on a unity ticket with every Treasurer that has ever occupied the Treasury benches of this country through the whole course of Federation, whatever side of politics they are on.

Peter Costello is saying, `You won't get a reduction of Senate powers in my lifetime,' but I frankly cannot believe that Peter means what he says in this respect. Peter, if you are listening, for you to say that is frankly a confession of impotence that I never thought I would hear from you. Do not succumb to a self-fulfilling prophecy in this respect. Get out and lead the charge and make yourself a constitutional hero. Be a giant among the wimps by whom you are surrounded. If you go down that constitutionally visionary path, out there on the next charger to me, between us we can produce a result which is not only desirable and technically achievable but also politically feasible. Do not be deterred by this argument about political feasibility. It is simply a matter of political will. I have great confidence that my colleague and perhaps new friend- I do not want to push it too far- Mr Costello will join me in that respect.

Mr HAYDEN- I would urge support for working group reports Nos 1 and 4. I find reports Nos 6 and 7 totally unacceptable for reasons I will come to in a few minutes. In the resolution from working group 1, the key point, in so far as I am concerned, is the last paragraph, where it is said that:

In the event the head of state were dismissible by the Prime Minister or body acting on the advice of the Prime Minister, codification would not be necessary.

That is the basis on which I would support working group 1's recommendation. I would not support any suggestion of full codification. I do not believe full codification is a practical proposition. There are too many things that we cannot anticipate. No-one would have anticipated the circumstances in which what took place in 1975 occurred and the results that took place. Human behaviour is full of unpredictabilities and to try to provide full codification is to be too rigid in the sphere of operation in which the Governor-General or the head of state might have to act.

I accept Malcolm Turnbull's amendments to this particular working group report, incidentally. But many of the concerns I have had about the abuse of the black letter law power available to a Governor-General, should a Governor-General be so minded and there be inadequate control over him, have been answered by the rather measured and sober comments which were made by George Winterton this morning when he introduced the resolution of working party 4. Therein, he proposes partial codification- as I understood him- spelling out what is the practice on many matters already in place and, in those respects, spelling out things which should have been included in the Constitution in any case at the time it was drafted. He then goes on to mention that there must be a degree of flexibility; that is, where the reserve powers cannot be codified- cannot be defined- and I believe that to be essential.

This is why I find some difficulty with Gareth Evans's passionately promoted resolution 7- passionately promoted in a quite a characteristic way. He wants to spell out in detail appropriate rules to cover each situation, making it clear that the head of state retains no independent, personal discretion. That is great in principle. I believe that the head of state should have his powers restricted to the minimal which are necessary for this system to function. But the fact is that, if we had a re-run of something similar to what occurred in 1975 and there was a sort of gridlock between the houses of parliament and the parties, there would have to be an early and decisive resolution of this matter, and I stress `decisive' and `early'- much earlier than occurred in 1975. The reason for that, very simply, is that we now have open exchange markets and disruptions to our political economic system- especially of major proportions- feed very quickly into the flow of currency. We would see the Australian dollar plummet overnight if we ran into such a situation.

We have seen what has happened in the region in recent times, how quickly those movements occur and how damaging they can be. We have seen, in less than a fortnight, how a re-rating of Australia's credit standing by an international credit rating agency had rather marked effects on the value of the Australian dollar. There is no room to fool about on these things. As much as I dislike what happened in 1975, I have come to recognise that something would have to be done sooner or later. I think it could have been done later then, but now it would have to be done sooner because of these circumstances, and the Governor-General of the day would have to have that power.

Mr GARETH EVANS- Oh, ha, ha!

Senator FAULKNER- Come on, Bill.

Mr HAYDEN- I am sorry, Mr Evans, but I have to put the interests of the country ahead of the ambitions of a particular political party in government.

Mr GARETH EVANS- Oh, how the mighty have fallen!

Mr HAYDEN- I regret that I have to disagree strongly with Working Party 6's proposition. It is elaborated by Clem Jones's intervention, I understand. It is a perfect formula for continuing clashes between the head of state and the parliamentary system. Once you try to distribute exercise of authority over executive matters, the way this is proposing, between the head of state and parliament then you will have nothing but political instability, and you will have nothing but political conflict and disruption. It is not an appropriate model for Australia to pick up.

DEPUTY CHAIRMAN- Before I call Neville Wran, there is a further amendment which John Hepworth will move.

Mr O'BRIEN- I rise on a point of order. I am confused. We are discussing No. 1, are we not?

DEPUTY CHAIRMAN- No, we are discussing all seven or, really, all eight if you think of 7 as being 7(a) and 7(b).

Mr O'BRIEN- If I want to speak on a particular one, how do I do that? Do I just put my hand up?

DEPUTY CHAIRMAN- Or you come in here and make me an inducement.

Mr WRAN- In the last couple of days we have had the benefit of a number of really brilliant set pieces which reflected the views of delegates from all political and social spectrums. Up to this point- and I hope the atmosphere that has been generated will be maintained until Friday week- there has been a positive environment in which delegates have been seeking to find real solutions to what is a real question.

I am a little troubled, after the set piece speeches of the last couple of days and after the work, good and all as it was, of the working parties and the excellent reports that we got from the working parties this morning, that this afternoon on a relatively short debate we are going to virtually decide- conditionally decide or, as the document says, provisionally decide- one of the core questions to be determined by this Convention: what shall be the powers of Australia's head of state? No doubt tomorrow we will be entertained by a series of set speeches on how the head of state should be appointed or elected. We will then rush off into working parties, there will be a plethora of resolutions coming back and we will be asked to vote on those resolutions.

When you analyse them, the resolutions that came back reflect three situations. The first is that the powers of the head of state be incorporated by reference, the second is that they be defined by way of a partial codification and the third is that there should be a full codification. I can understand that resolution 6, which sets out to widen the envelope dramatically, will be totally unacceptable. But it seems to me a great pity that we will be deciding this core question, in somewhat of a hurry this afternoon, whereas what we should be doing, with respect Deputy Chair, is to have a menu of provisional resolutions go forward.

There can be only one final resolution but whatever becomes the draft or provisional resolution today is almost certain to finish up the resolution of the conference in a substantial form. I think there is a great opportunity for a real consideration of those three items contained within the working party's report, a real opportunity to genuinely consider them overnight and toss them around. We have some models here which for those who are constitutional lawyers or Governors-General are very easy to follow, but for most of us who do not fall into either of those categories it is quite difficult. I think the wise course for the Convention is to select a menu of these resolutions. Let us pick a final position when we come to it early next week, and I so move.

Mr RUXTON- Hold on a tick.

DEPUTY CHAIRMAN- I think the methodology we are proposing is precisely what you want, Mr Wran. It is very close to it. What is anticipated this afternoon when we have the voting is not to reach a final decision but it may be that we put up seven or eight resolutions. It may be that three or four of them might get support of over 50 per cent and a couple of them might get a very small vote, in which case you could really put them aside. It then goes on to the resolutions committee to work together to try to produce a kind of menu. I think what you want to move is very much what we have proposed to do.

Mr WRAN- That is good to hear but I think that, within the framework of the draft resolutions that go forward, those draft resolutions should reflect at least the key resolutions in the working party reports, and that would be brought about by Nos 1 and 2 being joined together- that has been suggested and that is almost inevitable; that is, powers by reference- and then No. 4, which is partial codification, and No. 7, which is codification. (Extension of time granted) What I am really saying is this: we had an excellent thing happen in this Convention yesterday. Somebody over here moved that we declare our hand immediately and that Australia should be a republic and- not unanimously but almost unanimously- we said, `No, we will not do it that way; we have another nine days to go; let us take it step by step, brick by brick and try to come up with a fully thought out, fully satisfied result.'

That is the sort of thing that I am suggesting here. I do not think, even though there seems to be a weight against full codification, that is something we should just chop off immediately as if it is not worthy of consideration. I leave that to you to put it to the conference in the way in which I have suggested.

DEPUTY CHAIRMAN- Have you got it in writing?

Mr WRAN- I will put it in writing; it is only one line. The other thing I would like to mention is that we had not really considered before we came to the conference the Australian Republican Movement's position on the issue of abolishing the Senate's power to block supply. We have no official policy but, given our bipartisan nature, we considered whether we could have one. Accordingly, we have agreed that our delegates will vote on this question according to their conscience. Mr Turnbull, the chairman of the ARM, has considered his position and he proposes to abstain, feeling caught between his colleagues in the coalition and his colleagues in the Labor Party. So I think that should be clear. Finally, for Mr Hodgman's benefit on what happens to the prerogatives: look at page 146 and 147 of the Republic Advisory Committee's report and you get a complete answer.

DEPUTY CHAIRMAN- I propose that after Mr Wran has written out the actual form of the resolution I might just put it without further debate.

Sir DAVID SMITH- On a point of order, I hesitated to interrupt Mr Wran while he was speaking but I would like to point out to the Convention that he spoke of three options, all variations of codification. I remind him that the status quo remains an option.

DEPUTY CHAIRMAN- I do not know that that would necessarily cut across the resolutions. He wants to make sure that what goes through to the resolutions committee ultimately reflects a range, and I think that can be accommodated.

Mr WRAN- I accept that entirely.

DEPUTY CHAIRMAN- The order of speakers is Mary Kelly, Clem Jones, Ann Bunnell, Adam Johnston, Paddy O'Brien and now Andrew Gunter.

Mr GIFFORD- On a point of order, I point out that yesterday I was told by the chairman that I would be able to talk this afternoon about the defects of the various motions, which presently are not yet at the resolution stage, and that I was to deal with the various ones separately. You have not mentioned my name.

DEPUTY CHAIRMAN- It is a great pity that the Rt Hon. Ian Sinclair is not in the chair. He will come back before the resolutions are put to the vote and he may, in his infinite charity, want to give you the call then.

CHAIRMAN- Yes, put his name down.

DEPUTY CHAIRMAN- Mr Gifford, we will put your name down after Andrew Gunter.

Ms MARY KELLY- I am seconding and supporting resolution 7A that came from Working Group 7. We have had a fair bit of exposition, so I want to make only four fairly simple points. The first is this: if you do not want a politician as a head of state, do not give to that office direct political powers. As for trying to depoliticise the office by carefully constructing the method of election or by culling or short-listing out anyone who has ever expressed an opinion on anything, all these efforts are fruitless. They are efforts directed at the wrong part of the equation.

Power is safest in the hands of the many rather than in the hands of one; that is our habit and history in Australia. Australians, based on their barely concealed dislike of their elected representatives in the two houses, have said loudly they do not want a politician as head of state. In fact, they do not even want politicians choosing their head of state. I repeat: if you do not want a politician as head of state, do not give to that office direct political powers.

The second point I would like to make is that resolution 7A is not revolutionary. The powers are mostly retained or clarified; some discretions are removed. People have referred to it as bold, as too huge and as the Titanic. I think they need to get out more because it looks to me- and I do not say this out of naivety- to be a fairly logical and plodding effort to retain most powers and clarify others. The Senate change is as conservative as it can be under the circumstances; it refers only to a narrow range of money bills, not taxation bills, et cetera.

The third point is that I reject the idea that, because all unpredictable events cannot be codified, known problems cannot be dealt with; because we cannot write down all unknowable future events, we are paralysed to deal with known present troubles. I do not buy that. We should move to eliminate uncertainty and ambiguity as far as practicable, and that is what it says. Ambiguity will be the death of democracy, not codification.

The fourth and last point- it is similar to the one that Neville was making- is that this is not a time to be cutting off options. I intend to vote for more than one resolution here because I want a chance to revisit them after tomorrow. You may well want to look at what full codification means, and if this was carried a group would write out that text over the next few days so you could get another chance to deal with it. Remember, your support at this time is only provisional. But, as I understand it, if a resolution is lost its death is not provisional but permanent. I recommend 7A to you. It finally preserves an important principle of responsible government which makes our future republic safe and workable.

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Last updated: 21 October 2000