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 2

CHAIRMAN- Just so the delegates will be aware of the way in which we proceed, Professor Craven is the rapporteur of Working Group 1. Having presented his resolutions and recommendations, they will be a matter, when we have come to that stage, of consideration by all speakers and will be addressed for or against- or there will be foreshadowing amendments during that course- when we look at the principal speakers list with respect to the item for today. For Working Group 2 the rapporteur is delegate Julie Bishop. The task of Working Group 2 was to consider the same range of powers with express provision to incorporate by reference the conventions governing the use of reserve powers.

Mr GIFFORD- May I ask one question. I just want to be clear as to what is happening. Do we criticise any defects as we see them separately in each of the resolutions or are we to just have the one after each has gone through this process? We cannot take each one separately?

CHAIRMAN- No, we are going to deal with all of them. We are opening up for the consideration of the Convention all the recommendations, all the reports and all the resolutions of the working groups. When we go to that general stage of debate which is identified as the speakers list, which will cover the item for today, you may talk on any one of the reports or all of them. You do not do it now; you wait until we have this general contribution. Later this afternoon, when we have speakers selected from the floor, there will be a formal moving of the resolutions, amendments will be taken and the voting will not take place until 4 o'clock.

Ms BISHOP- The majority of this Convention felt it necessary yesterday to move amendments to the order of proceedings to guard against gender imbalance. They need have looked no further than our working group to have their fears dispelled. In our group of eight, the six women quickly took control of the convening, wrestled control of the chair, the discussion, the agenda, the note-taking and the reporting. Our two male delegates were, it seems, singularly underwhelmed by the gender imbalance. Then again, one could not have hoped for a more cohesive and amiable discussion group to give serious and detailed consideration to the task at hand. As we saw our task, it was to take the key issue- if there is to be a new head of state, what should the powers of the head of state be and how should they be defined?- and come up with the arguments in favour of one particular option. We found early in our deliberations that the option we favoured for a head of state elected, for example, by a two-thirds majority of parliament- or indeed the McGarvie model- was not the option we believed to be appropriate for a popularly elected head of state. The option we considered is that the head of state would have the same range of powers as the Governor-General but inserted into the Constitution would be an express provision to incorporate by reference the conventions governing the use of the reserve powers.

I saw this option as our onion, and let me peel back each layer to demonstrate our thinking in reaching this conclusion. Firstly, we determined that the head of state, if appointed by parliament and otherwise not popularly elected, should be given the same powers currently vested in the Governor-General- as it has been most eloquently put elsewhere, a blueprint of the powers of the present office of the Governor-General should be bequeathed to the head of state. Those powers would include both the ordinary and the reserve powers. We did not see a case for dividing the powers between one or more other holders of public office, nor did we consider vesting the reserve powers elsewhere, such as in the House of Representatives. Where else other than with the head of state should those powers rest? We opted for the head of state.

We did not advocate a change to an executive-style head of state, nor did we argue for the head of state to be largely confined to a ceremonial role for the purposes of this debate. We continued to opt for the constitutional umpire role, ordinary and reserve powers intact. We are swayed by the notion that the vesting of the reserve powers in the head of state is one of the pillars of responsible government and it has served us well.

That took us to the next layer of our onion. The Governor-General currently derives powers and functions from the Constitution. A little reading of the Constitution leads one to assume extensive powers are conferred on the Governor-General and that those powers are conferred on the Governor-General as the Queen's representative. In practice, these powers are circumscribed by convention. We took no issue with the fact that some powers are conferred on the Governor-General and some on the Governor-General in Council. We treated it all on the same footing.

The reserve powers- those that can be exercised without or contrary to the advice of the Prime Minister- can be inferred from, amongst others, sections 5, 57 and 64 of the Constitution. We recognise that these are considered to be very limited; as discretionary powers they are powers in reserve. They are exercised only in extraordinary circumstances to prevent a constitutional crisis- supposedly- and they are powers which exist to allow the head of state to ensure that the government is conducted in accordance with proper constitutional principles and that at the end of the day the ultimate supremacy of the electorate is upheld. The conventions that surround the exercise of the reserve powers are unwritten. They are not rules of law, although they are regarded as binding. Some are clear and settled; others are somewhat controversial.

One concern was that the Governor-General's powers are governed by constitutional conventions that traditionally control the exercise of power by the Queen and her representative and that, therefore, with the removal of the monarchy from the Australian Constitution, the conventions may well then not be applicable- they may disappear if the transfer of powers does not include reference to them.

A transfer of powers without more would leave open the question as to whether the head of state would feel obliged to observe the conventions that currently govern their exercise. The assured continuation of the conventions could be provided in two ways: by amending the Constitution to preserve explicitly the powers and conventions that govern them without specifying what they are or by codifying them in whole or in part. We argued against codification, except in the case of a directly elected president- and I will come to that position shortly- for reasons similar to those expressed by Professor Craven's group, and I will not take up time by going through them again. But we saw strength in leaving the conventions undefined to allow them to retain their flexibility. As the reserve powers are exercised on extraordinary and rare occasions, the conventions are likewise extraordinary and rare and therefore need to be flexible, with the capacity to respond adaptively to unpredictable situations.

We recognise that the mere reference to unwritten conventions in the Constitution may present its own problems, but we saw this as the safeguard or the hook, if you like, to preserve them in the transition to include in the Constitution a clause specifying that the powers of the head of state must be exercised in accordance with existing conventions. We were anxious that such reference not convert the conventions into rules of law- that they remain unreviewable. The reference in the Constitution helps take away the ambiguity that currently surrounds the issue of the reserve powers and the legitimacy, particularly where there is to be a transfer of powers.

We were unanimous in our view that a directly or popularly elected head of state or president raises different considerations. We were not content to leave the status quo in respect of the powers, even with our added clause to the Constitution on the conventions governing the reserve powers of such an elected president. We believed that the powers of a head of state so elected must be specified and, might I stress, must be limited and specified. None of the lawyers present were prepared to even contemplate whipping up a quick code of powers. We leave that to others considering that option.

Finally, one important issue was that of the dismissal of a head of state who departed from existing conventions. We wished the mechanism for dismissal to be swift- short and sweet. Thank you.

CHAIRMAN- Thank you, Ms Bishop. Working Group 3's rapporteur is Mary Delahunty. I call her to the dais. The task was `Same powers with a written statement of the conventions governing the use of reserve powers as a non-binding guide'.

Ms DELAHUNTY- Thank you, Mr Chairman. I should say that support in our working group for the notion of a written statement of the conventions governing the use of the reserve powers as a non-binding guide was definitely underwhelming. It became very clear, as we waited patiently for the views of the rather small working group, that we were all there, in fact, to hear arguments supporting the notion of a non-binding guide- to hear them with an open mind, not to put them. No arguments were forthcoming. Indeed, none were put in support of the notion of a written statement as a non-binding guide.

There was discussion. There was discussion and, indeed, there were differing views on the challenge before this Convention of codifying the reserve powers, incorporating them by reference or making no express provision governing the use of the reserve powers, as now. These discussions showed an open mind, in most cases, on these matters. However, there was unanimity that if, after discussion at this Convention, agreement could be reached on a written statement- in other words, codification or partial codification- then this written statement should be binding. We held the view that if an achievement of such magnitude were to be made- indeed it would be a sensational breakthrough at this Convention if agreement could be reached on a written statement of the conventions governing the reserve powers- that that achievement should be celebrated and indeed applauded by being incorporated as binding rules in our Constitution.

In addition it was felt that, should this agreement occur on codification or partial codification, such a written statement would in fact render our Constitution more explicable to the political participants and indeed to citizens alike. There was a view in our working party that our Constitution as the written document, which is the structure of our political system, should be explicable to citizens, should be clear, should be concise and should give an accurate guide to the way our political system works in practice rather than a theory perhaps now 100 years old.

There was a view that part of the task of this Convention is to engage Australians in the work that we are involved in, a work that says it is possible- and there is a great sense of excitement amongst the delegates- to imagine renovating the Constitution so that it begins to look the way we are rather than the way we were. So the discussions were rather limited to the notions of that challenge.

Let me say, Mr Chairman, that we dismissed very quickly the idea of a non-binding guide should we agree on a written statement of the conventions governing the reserve powers, and our resolution makes that clear. There was no support for the notion of a non-binding guide. Thank you very much.

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Last updated: 21 October 2000