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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
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