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TRANSCRIPT OF
PROCEEDINGS
Tuesday, 3 February 1998
Page 4
CHAIRMAN- Thank you,
Mr Gunter. The rapporteur for Working Group 7 is Delegate Mary
Kelly. The responsibility of that working group was `Lesser
powers of the head of state with codification'.
Ms MARY KELLY- As the chairman
said, our title was `Lesser powers with codification'. That was
the first group, I think, created under that request by 10
procedure. There was a rich diversity of views and approaches,
but the group was very task oriented and produced clear and, we
think, absolutely fantastic outcomes. The participants started
with views ranging from not having a separate head of state at
all to wanting to clarify powers regardless of what method of
election or appointment eventuated. Some wanted to codify powers
because it would enhance the chances of popular election and
others wanted to codify existing powers but then create new and
different ones in a re-invention of the role. We were as dutiful
as we could be in sticking to powers and not method of election,
and we did that most of the time.
The group benefited from two
pieces of detailed preparatory work. The first was by Clem Jones'
team, which outlined a very detailed codification not just of
existing powers but also of some new proposed powers. I think you
were all pigeonholed with a copy of that. The second was a draft
resolution from Gareth Evans which set out an in-principle view
of codification of existing powers with some details on the broad
types of powers and a reference to the Senate's power over
supply.
Clem's document reflected a
grassroots view of the head of state as the people's champion
with new powers, such as being able to ask the houses to
reconsider bills already passed and allowing the head of state to
address the nation and so on. Gareth's document was a
relentlessly logical step-by-step approach which referred to
previous work on this issue, including the constitutional
conventions of 1983 and 1985 and the Republic Advisory Committee.
Surprisingly, the two
approaches complemented each other and did drive us to an agreed
outcome, which I will talk about. The first agreement we reached
was that codification was a good thing, irrespective of any other
changes to the Constitution, that it could stand alone and apart
from the method of elected appointment as a desirable exercise.
The three part rationale in support of our form of codification
is really encapsulated in the first part of resolution 7, which
you have. I will read it out to you. It says:
- full
codification of the powers of the Head of State in order to
eliminate, to the maximum practicable extent-
that is a very important
phrase-
uncertainty and
ambiguity about their meaning.
In other words, it is a good
thing because, in so far as you can do it, it eliminates
ambiguity and uncertainty. We supported:
-
-
limitation, in that context, of the powers of the Head of
State in order to eliminate, to the maximum practicable
extent, the possibility of any conflict with the
principles of responsible government;
In other words, the group
made a choice about what the major principles that underpinned
our system were and put its money on the principle of responsible
government in line with other principles, but the primacy of it
was up-front in our minds. Thirdly- and as a consequence in some
ways- we supported:
-
-
limitation of the powers of the Senate to the extent
necessary to eliminate the possibility arising of the
Head of State exercising discretionary power to resolve a
conflict between the two Houses.
That is the up-front
rationale. The details of the full codification were hotly
debated, and the outcome was two resolutions. Resolution A, which
is attached for you, goes on in four clauses to outline, in a
general way, what full codification means to us. It is worth
referring to them briefly.
Clause 1 talks about those
powers expressly given and stated to be exercisable on advice-
the on advice powers. That means to us that they should be
retained but clarified. Clause 2 talks about those powers already
expressly given but with no current indication about how they
should be exercised. We say that they should be spelled out in
detail. Good people have done similar work about that previously,
some of which is attached.
Clause 3 talks about the
reserve powers not expressly stated in the Constitution, and we
know what they are. We say that they should be spelled out in
detail in such a way that the head of state retains no
independent personal discretion. That is not ambiguous; that is
the position the group has taken. Clause 4, in dealing with the
consequences of that, talks about the Senate's power to block
supply and says that we should remove the Senate's right to
reject or significantly delay bills appropriating moneys for the
ordinary annual services of the government. There was a strong
majority support from our group for resolution A.
I will just talk briefly
about resolution B, the other outcome, and then go back to some
of the arguments that we had. Resolution B is meant to be
considered separately from A because it actually adds a new power
to the head of state. It says:
Any codification of
powers should include a provision enabling the Head of State to
refer any Bill to the High Court for a decision as to its
constitutionality.
Many of you will recognise
its similarity to the Irish model. There was also majority
support in the group for that resolution.
For some in the group, A and
B were an inseparable package. They wanted to say yes to clarity
and limitation and the primacy of responsible government but yes
also to the head of state as the defender of the Constitution and
defender of the people. For others in the group, A and B are
contradictory- A about limiting and B about adding. By putting
them separately, it allows you and us the flexibility of working
through those issues.
The arguments we had within
the group- no doubt they will reflect the arguments we will all
have again- were around three issues. One has been mentioned:
how, within a full codification model, you deal with the
unexpected. We went through as many scenarios of the unexpected
as we could possibly think of about how things could go wrong and
what would happen, and essentially satisfied ourselves on that
point that the unexpected was able to be dealt with when it came
up. We satisfied ourselves on that point.
We had a lot of argument
about the Senate and restricting its powers. Some members of the
group put forcefully that people like the Senate's role as a
house of review. To answer that, it was said that that role would
continue but this power over money, which apparently is unique in
Australia and not available in Westminster, was an anomaly and
inconsistent with the power of responsible government. We reached
consensus on that point by limiting the Senate's powers not on
all money and taxation bills, as was originally suggested, but
on, as the words indicate, `a narrower range of money bills'-
moneys for the ordinary annual services of the government.
The third area we had
arguments about was the overall conception of the role of any new
head of state. People expressed concern that full codification
essentially might leave only ceremonial duties for the head of
state and that people would not be satisfied with that- that that
was somehow a second-rate outcome. But there was a counter view
put that those duties which are unifying and symbolic are
incredibly important. They are not second-rate duties. They are
one of the most vital duties that you could have. It is precisely
the exercise of those duties that has made our current
Governors-General lovable and that made people admire them.
I guess in conclusion all I
can say is that the model that we have come up with is a bit like
the much admired Irish model and does preserve the fundamental
principle of responsible government. Thank you.
CHAIRMAN- Thank you
very much, Ms Kelly. We have now concluded the reports of the
seven working groups. Those resolutions we have now before us.
The debate that will ensue from now until we move into this phase
at 3 o'clock will enable us under clause 21 of the rules of
debate to have 10 minutes for each speaker. It will also
facilitate a consideration of each of those proposals in detail
with whatever amendments or modifications you might feel
appropriate. You may support them, oppose them, speak to any one
of them or speak to all of them. Before I call on the Hon.
Premier of New South Wales, the first speaker, I will table
another proxy that I have received from Mr Peter Collins, Leader
of the Opposition in New South Wales, for certain days and times,
appointing the Hon. John Hannaford in his stead.
Mr CARR- I think I speak for
everyone who has listened to the reports of the working groups
this morning in saying how extraordinarily impressive they were.
I think anyone who might have harboured reservations about the
capacity of this Convention to tackle the tasks before it would
have those reservations dispelled by the quality of the
consideration that has obviously been brought to bear on what up
till now has been considered some almost insurmountably difficult
challenges.
Can I begin with two personal
declarations. One is on the party system, which has been referred
to on a number of occasions as we have weighed the advantages of
changes and of preservation of features of our system. Let it be
remembered that the one occasion on which the Australian
political system at large came close to wholesale corruption was
in the parliaments of the colonial era, which lacked the
discipline of the party system. When coalitions were cobbled
together, not least in the Legislative Assembly of New South
Wales by Henry Parkes in the 1870s and 1880s, in return for
promises of personal financial favours and of `roads and bridges'
politics through electorate after electorate, individual members
of parliament, independents without a broader loyalty to a party,
without ideological commitment, were prepared to throw their
support behind short life coalitions.
It was the party system that
arrived in the 1890s that removed that wholesale trading that put
together coalitions that supported ministries. It was the party
system that meant that individual interest groups were not able
to buy slices of an Australian parliament, a colonial parliament,
and get their way on the location of a railway line or anything
else. Our system has enormous merits but a great deal of it is
owing to the strength and the discipline of the party system.
That explains a great deal about the effectiveness and the
endurance of Australian democracy. That ought to be said.
The second statement of
principle I make is this: there is a great virtue in prime
ministerial government, in having an executive accountable to a
parliament, in having an executive able to survive or fall
dependent on what happens on the floor of a chamber like this. I
believe in it. I think it serves this country well.
The flaw I highlight in our
current system is the fact that our Constitution is laden with
imperial references and invocations. It was a document written to
flatter Queen Victoria and is quite out of place with the
contemporary Australia we know and reflect. That is our starting
point for this discussion, as far as I see it: what changes we
need to make in the Constitution to have it mirror contemporary
Australia without altering and without endangering the great
strengths of prime ministerial government; the principle that an
executive is in place while it commands support on the floor of a
parliament.
That is why I treat with a
great deal of caution any arguments in favour of an executive
presidency. Forget comparisons with the United States. People who
talk about enhanced powers for a head of state- I will come to
the question of what we should name the head of state when I
conclude- ought to reflect on the French system, which has a
bicephalous executive.
If you are talking about
strengthening the power of a head of state while retaining prime
ministerial government, you are talking about dividing executive
power between a head of state and a Prime Minister. The closest
reflection we have of that is in the French system of government.
When I look at the suggestions of the working group that
contemplate strengthening the powers of a head of state, I see
that they give him or her the power to negotiate treaties, for
example. You would have a head of state elbowing aside a foreign
minister, elbowing aside a Prime Minister, to enter the realm of
making foreign policy for Australia.
Look at cohabitation in
France. Look at the difficulty of reform in France. When I was in
France last, people were talking with admiration about how
Australia has achieved structural reform in economics and public
administration, and the inability of putting reforms like that
through in France because of a bicephalous, a two-headed,
executive. So let us steer right away from that notion.
I personally am attracted to
the recommendations of Working Group 7, which contemplates quite
bold codification of the powers of a head of state. I do so
because I am a child of 1975 and I have maintained the rage-
Gough is not here to hear this; that's sad. I immediately
acknowledge as a republican that we are under pressure during
these two weeks to carry a whole load of conservative Australia
with us. In other words, if we are going to move towards an
Australian head of state, we must do so, to put it in political
terms, by carrying with us the people who thought John Kerr acted
appropriately and voted for the coalition in 1975.
Therefore, I am prepared to
concede that, if we are going to achieve that degree of
consensus, what is proposed by Working Group 7, while I agree
with it, may be too bold. In other words, we have to look at a
more modest codification so that people who are constitutional
monarchists feel the model we reach at the end of this two-week
exercise is one they can support. That is my position.
An interesting notion that
has emerged from a number of the working groups is the question
of a reference to the High Court. There was reference to the
precedent for this in the Irish Constitution that I found very
interesting. I think it might have been Professor Winterton's
report which mentioned resolving a question like that confronting
Governor Game in 1932 by referring it to the High Court for a
determination. That strikes me as not a bad notion. As we move
towards codification, but probably not the bold codification
contemplated by Working Group 7, that is not a bad notion. It is
new to the Australian Constitution but the idea of a reference
from the head of state to the court for a quick determination may
be something that, with advantage, can be introduced into the
Australian Constitution.
A final point- entirely
idiosyncratic- is the question of the name of a head of state.
Consider the question I touched on a moment ago: the need for
republicans in this process to carry with us those whose
instincts are conservative and to reach a consensus by the end of
these two weeks. It may be reassuring to a lot of Australians who
are on the point of moving across on the question of an
Australian head of state if we tackle the question of
nomenclature. What does it matter if a head of state is referred
to, not as president- with its connotations, some of them
disturbing for conservative Australians- but as Governor-General?
If we can say that we will retain the name Commonwealth of
Australia instead of calling ourselves the Federal Republic of
Australia, which I guess is more logical, and if we can embrace
that concept, why can't we as republicans embrace the concept of
referring to our head of state not as president but as
Governor-General?
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