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 3

Mr HEPWORTH- This working group might, from its title, be construed as consisting entirely of constitutional monarchists. In fact, it was consisted of a substantial balance of different views from around the Convention. In spite of that composition, it reached a remarkable degree of unanimity. There was not absolute unanimity on the report that is before you but a substantial majority were for this, including the majority from those beyond Australians for Constitutional Monarchy.

It was our contention in the working group that the proper place for beginning a debate on the powers of the head of state is the current status quo. Since that has been somewhat distorted in subsequent debate, we began the resolution by outlining the current status, drawing attention to the fact that the status quo has been substantially modified, particularly by the passing of the Australia Act but also as far back as the passing of the statutes of Westminster, and in fact created a significant repatriation to independent advice by Australian ministers on a range of constitutional matters that could be construed by a bald reading of the Constitution without any reference to Australian constitutional history as having been otherwise.

We went on to discuss a number of potential problems- the one around codification and the second around the tenure of a proposed head of state. The issues around codification often become confused simply because there is a natural process of codification that runs in a constitutional nation such as ours. Some conventions become so well entrenched that, if they are violated, there is a push to codify them. We saw an example of that in the aftermath of 1975. A gradual codification of conventions that become entrenched is something that we believe is a natural process and ought to be continued, but it will normally happen only once those conventions have been fractured by some crisis.

We went on to make the strong point that any form of codification of reserve powers is a contradiction in terms. Reserve powers exist for some future unforeseen constitutional crisis. If reserve power has become so clear that it can be entrenched, then it becomes part of the Constitution, and ought to do so, but it ceases being a reserve power by the process of codification.

Reserve powers must be in a sense vaguely seen because they are designed for crises that are unforeseen. It is absolutely essential that the head of state continues to have powers to resolve crises around the broad convention that the Constitution and effectively the powers and rights of the people reside in the operations of the head of state against executive government, which is a most fundamental principle of the Westminster system.

The further point that we went on to make is that, once codification occurs, it is both our constitutional experience and that of other nations that they become justiciable. The legal practice that arises out of codification leads to understandings of the Constitution completely beyond and often quite different from those which the drafters imagined would flow. In other words, it is quite possible for us to codify but subsequent legal action will lead to a complete distortion of what we might codify. I think it was Alfred Deakin who sounded that warning in 1893, when at the Adelaide Convention he noted that the Constitution that we were preparing was for generations not only unborn but unknown. Therefore, there was an element of casting a Constitution on the waters, and one must be extremely careful who one lets have a subsequent interference in it. The High Court does have a role, and everything that is codified will become part of that.

The further warning that we wanted to sound was the possibility of legal action around the relationship between a President and a Prime Minister, that once one has codified that relationship it will become the subject of action in the courts. No amount of constitutional hedging can remove that possibility.

That raises the problem- not a legal problem; the legal process could run on, as we noted, for years- that the nation is ungovernable in the meantime. So it is essentially a political problem rather than a legal problem. Providing neat legal solutions can lead to the destruction of a political process. It is one of those moments when, regrettably, lawyers who happen to be politicians have to decide whether to be mainly politicians or mainly lawyers because if they become mainly lawyers they will be very bad politicians- I notice the front row has disappeared as a result.

The final point that I would wish to make in this brief account is the question of tenure. All the republican models before us at the moment, some admittedly in more or less form, give some form of tenure to the head of state- five-year terms even by appointment of the parliament and so on.

We note that at the moment neither the Governor-General nor the Prime Minister has tenure. They do not have tenure because they can dismiss each other, and the Prime Minister does not have tenure for the further reason that his party can get rid of him at any moment, and frequently does. That leads to a situation where they are in the mutual state of uncertainty with each other. Indeed, it balances very nicely. Any account of the debates of the 1890s will show that that was an intended consequence.

Tenure for the head of state gives an ascendancy over the Prime Minister that we ought not to tolerate in a parliamentary democracy, because the Prime Minister under the current model remains without tenure and there is no concomitant proposal, for instance, for fixed terms of parliament which would give to the Prime Minister a certain element of tenure, provided of course always that the party system was not as strong as it is now, which is an unlikely consequence of subsequent change in Australia.

In other words, we were worried- and I think more worried about this than any other matter- that in republican models we are likely accidentally to shift the balance of power in favour of a president, even if none of the powers of a president are spelt out differently to those of a Governor-General. The fact of incumbency and of impregnable incumbency or of the process of dismissal depending on a string of consequent events, such as the unlikely vote of two-thirds of the parliament, or the people changing their minds, or High Court action or some other form of activity, removes the exquisite uncertainty from the relationship which is at the moment an important part of our political stability. We could go in the direction of entrenching prime ministers, which would be the destruction of parliamentary democracy as we now have it, or we could look again at the whole question of entrenching presidents, which would be a novel and, we are suggesting, utterly unhelpful development to our parliamentary democracy.

We finally exercised our minds within that context on who is actually going to own the guns. In other words, this is highlighted if one looks at the issue in that context of the question of who is the Commander-in-Chief of the Armed Forces and on whose advice a series of roles that go around Commander-in-Chief are exercised- the declaration of war power, for instance; the problems of providing Supply once one has a hapless and unforeseen war as a result of the president having a bad morning. In other words, at the moment we quite obviously balance that power once again quite exquisitely, and even so have had problems with it both in the Second World War and in the Vietnam War period, in which the roles had to be spelt out anew. So we were concerned that, if we begin to look at absolutely practical things, that relationship becomes quite important and ought not to be tilted in the direction of presidents.

Finally, one member of the working group suggested that it all becomes terribly clear if we readopt capital punishment. We would then have very obvious and open debates between the president exercising executive power and the ministers advising the person in the way that they do in the United States, particularly in the states. Then the relationship becomes stark and the rights of each become extremely important. Perhaps we need to consider worst case scenarios in order to highlight the importance of getting the balance of power right.

CHAIRMAN- Working Group 6: Broader Powers for a New Head of State. I understand that delegate Andrew Gunter is the rapporteur.

Mr GUNTER- Mr Chairman, I report on behalf of Working Group 6, which has presented its draft resolutions on the basis of broader powers for a new head of state. Members of Working Group 6 wish to emphasise that the resolutions are compatible only with our head of state directly being elected by the people, as it would be indefensible to confer additional powers of the kind proposed to an appointed head of state lacking the accountability to the public that the public increasingly demands. Mr Chairman, owing to a minor typographical error, I would be grateful for leave of the Convention or a ruling from you that subparagraphs (k)(vii) and (viii) in resolution A be renumbered paragraphs (l) and (m) for clarity and consistency.

CHAIRMAN- We take note of your request and so adopt it.

Mr GUNTER- The purpose of resolution A is to promote the development of a system of parliamentary government which necessarily involves the maintenance of the separation of the role of the executive government, the Prime Minister and cabinet, from that of head of state, although in a significantly modified form from that applying currently. Further, the presence of members of the executive government in parliament as voting members with full legislative rights and responsibilities is maintained.

In resolution A we have summarised a range of provisions that vary, codify and expand on the head of state's powers in a manner that both reflects and requires the greater accountability to the voters that a directly elected head of state has. The powers of the head of state to appoint and dismiss a Prime Minister are generally an inclusive codification of those of the conventions regarding reserve powers on which there is broad agreement. The relationship between the Prime Minister's commission from the head of state and the confidence of the House of Representatives remains. However, more specific provisions based on those developed by the Clem Jones group have been included with regard to the dissolution of parliament as a whole or the House of Representatives alone when contentious events such as the inability to secure passage of appropriation bills occur.

Provisions regarding the holding of joint sittings to resolve deadlocks between the houses have been expanded to embrace a limited form of veto, in effect enabling the head of state to refer legislation presented for assent back to parliament for its reconsideration. At a joint sitting for that specific purpose, the veto could be overridden. The purpose of providing this additional but constrained power is to establish a mechanism for further public debate on legislation the head of state has concerns about, followed by a vote of parliament in the light of any public reaction to the actions of both parliament and the head of state on that legislation.

As one of the head of state's roles is to uphold and defend the Constitution, it is proposed to allow the head of state to refer any bill to the High Court to allow its constitutionality to be determined. This provision is closely modelled on the relevant article in the Irish Constitution, which has been used on average on fewer than one occasion every two years since that Constitution was adopted in 1937. However, half the bills referred by Irish presidents to the Supreme Court have been held to be either unconstitutional or in some way constitutionally defective, which would itself bear out the value of such a constitutional provision.

For similar, though more overtly political reasons, the working group has proposed providing the head of state with the right to refer certain legislation not dealing with the ordinary annual services of the government to referendum. We are of the view that the ability to refer bills in this way as well as by the limited veto set out above would act as a deterrent to any government seeking to legislate on deeply controversial matters without adequate public consultation. The New South Wales parliament's parliamentary superannuation legislation of December 1997 is a prime example of a bill that ought to have been given wide public exposure before it came into effect that these suggested provisions would allow for. The provisions would allow the head of state to act as a check on the passage of legislation, particularly of a kind that is so antithetical to any mandate that an executive government in parliament could claim to have.

The remaining provisions do place limits on the powers of the head of state and may appear at first to be contrary to the purpose and title of the working group. However, by making actions that are currently in practice exercised by the Governor-General on advice from the Prime Minister and cabinet instead exercisable by the head of state on advice but also subject to ratification by parliament, the ability of parliament to scrutinise executive action is enhanced, as is desperately needed. We propose that parliamentary ratification be required for the entering into of treaties, the appointment of High Court and other Commonwealth judges and the deployment of the armed forces. As regards those of the current Westminster conventions inconsistent with the above provisions, we propose a provision to repeal them expressly.

The bulk of the provisions in resolution A, whether appearing on the surface to add to the head of state's powers or to detract from them, have been driven by the need to redress the imbalance between the practical repository of executive government, that is the Prime Minister and cabinet, and the parliament, which has occurred as strict party discipline has developed over and around the Westminster conventions of the 19th century. These are the core reasons why so many Australians are asking this Convention to pursue substantive constitutional change rather than facadism.

Resolution B encompasses a substantially different approach based on a rigorous separation of legislative, executive and judicial powers with some parallels to the United States Constitution. Reflecting that character, resolution B provides for ministers not to be members of parliament but for their appointment to be subject to parliamentary ratification. The head of state's executive power under this model is not required to be exercised with the advice of the ministers of state as would be expected under a Westminster based model such as that in resolution A.

Delegates may be concerned about a resolution that proposes placing executive power in a single office, elected or otherwise, when that power is not required to be exercised with the advice of a larger body. However, the benefit of the removal of ministers, members of the executive, from parliament is to free up parliament's role as the most appropriate body to examine and inquire into actions of executive government.

Under the Australian Constitution, in its current form and consistent with Westminster theory, parliament does have the power through questioning ministers and public servants in forums such as question time and parliamentary committees. However, in practical terms, it is the rigidities of the party system, with members of parliament, and of the House of Representatives in particular, disciplined to support executive government in most or all matters far beyond the level of support required to provide stable executive government, that has diminished parliament's role as an effective check on the exercise of executive power.

Resolution B tackles a further problematic aspect of our current structure by removing membership of parliament as the usual path to ministerial appointment. Delegates may recall the comments that Ted Mack, the Convenor of Working Group 6, made yesterday in this chamber along the lines that the ability to become a minister is currently unrelated to the ability to be a minister. The flip side of that is that the desire to become a minister, which is not an infrequent characteristic of members of parliament, erodes an MP's effectiveness as a parliamentarian. Our current arrangements ask too many of the gamekeepers of the system not only to anticipate potential poachers to keep a check on their activities but also to empathise with them and to regard them as a higher form of life. That, of course, constrains a check and balance approach to parliamentary responsibilities.

It is in the interest of any rational MP wishing to make a career that includes ministerial appointment not to be too effective in his or her role as a check and balance on executive action. Such dynamics are the underpinnings of the strict party discipline that has so significantly eroded the more worthwhile aspects of the Westminster system. The working group also proposed further defined development of the head of state's powers in resolution B.

The head of state's capacity to refer legislation presented for his or her assent to the High Court for a ruling on its constitutionality, or in some cases to the voters through a referendum, is a useful check on any major lack of legislative caution. As in the case of resolution A, this model also places sensible checks on executive action. It too requires the entry into treaties, the appointment of senior members of the judiciary and, broadly, the deployment of the armed forces to be the subject of parliamentary ratification.

The members of the working group all wish to see the erosion of the effective checks and balances resisted and a more robust party discipline proof model developed for endorsement by the people. The distinct approaches of resolutions A and B, when they are measured against the practical substance of our current structure, each have real advantages. It is the attitude of the people to the particular character of each model that should determine which of them is preferred and which model is finally adopted.

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Last updated: 21 October 2000