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Constitutional Convention: Introduction  The Constitutional Convention of February 1998

Federal Election October 2004:
Which Candidates Trust the People?

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:

 

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:

 

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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