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TRANSCRIPT OF
PROCEEDINGS
Tuesday, 3 February 1998
Page 5
Councillor TULLY- Chairperson
and delegates, without question the most defining event in
Australia's constitutional history was the unceremonious, unfair
and unjustified sacking of a democratically elected government by
the Governor-General on 11 November 1975. That one divisive
action by the Queen's appointed representative in Australia
stirred the national spirit and, although many point to the
outcome of the ensuing election as justification for Sir John
Kerr's actions, there is no doubt that this Constitutional
Convention's very existence had its genesis from that day on.
Indeed, when I look around this chamber and count the numbers, I
believe that when the final vote on a republic is taken on Friday
week, to use the words of that great statesman Gough Whitlam,
`nothing will save the Governor-General'.
Last year, many Australians
were astonished by the ongoing claims and assertions of
constitutional monarchists that there was no need to change the
Australian Constitution because we already had our own Australian
head of state. Someone less kind and perhaps less humble than I
would describe the proponents of such a view as engaging in the
greatest constitutional deception and hoodwinking of average
Australian voters since the First Fleet arrived in 1788.
As the reality of our task
becomes clearer over the next few days, and as we head towards
the inevitable view that Australia must become a republic, the
powers we vest in our new president become of the most paramount
importance. I have heard much argument in recent months that we
should not worry about our current constitutional arrangements
because the Queen of England is not our head of state, rather she
is really at the apex of our Constitution as the Queen of
Australia. In my state, an act rushed through the Queensland
parliament in 1977 also declared her to be the Queen of
Queensland. The Queensland parliament went further by providing
that such title could be removed only by a referendum of the
Queensland people. This nation can never proudly walk on the
world stage while we have the Queen of a foreign country as our
own head of state.
Our Constitution is an act of
the British parliament. The preamble to our Constitution states
that it is:
. . .
enacted by the Queen's most Excellent Majesty, by and with the
advice and consent of the Lords Spiritual and Temporal, and
Commons . . .
What a load of monarchical
claptrap. It further declares that the people of the Australian
and British colonies had:
. . .
agreed to unite in one indissoluble Federal Commonwealth under
the Crown of the United Kingdom of Great Britain and Ireland
. . .
Not the Crown of Australia,
not the Queen of Australia, but the Crown of the United Kingdom
of Great Britain and Ireland. Is this what we really want to
preserve and perpetuate in Australia? I ask one question of the
people who want to cling to the past: are you fair dinkum Aussies
or apologists for a foreign regime whose actions in dumping us in
World War II were proof of its indifference to our nation?
Under our present
Constitution, the existing powers of the Governor-General are
awesome. Taken literally, he or she is not only the
Commander-in-Chief of the Defence Force of Australia but also has
the power to appoint and dismiss ministers at will, to appoint
justices of the High Court and to withhold assent to any bill
lawfully and democratically passed by the Senate and the House of
Representatives. This latter power, when read with section 59 of
the Constitution, which allows the Queen to disallow any act of
the Australian parliament within one year of its enactment, even
after it has become law, is the very antithesis of democratic and
representative government.
It is totally unacceptable
that the head of state of a foreign country has the power to
annul our laws. Just imagine telling the people of Ireland, for
example, that their laws could be disallowed by the head of state
of Bolivia or Venezuela! This is absurd, anachronistic and no
longer tolerable to the people of Australia.
If we are to become a
republic, our Constitution must reflect an appropriate balance of
powers to be vested in an Australian president. It has been said
that, unless we move completely to the United States model, a
directly elected Australian president must have not only codified
powers but also reduced powers. I totally endorse that
proposition, but that is only one aspect of this vexed question.
If the sovereign power of the people of Australia is to be
recognised, the powers of any Australian president, whether or
not he or she is elected, selected, appointed or anointed, must
be codified and particularised and reduced- reduced so that the
president's position is strictly ceremonial and constitutional
and never political.
The so-called reserve powers
of the Governor-General cannot be translated across to the
position of president. Leading constitutional experts disagree
over exactly what those reserve powers are. Some people will
argue that this is a good situation so that the Governor-General
or the president has the flexibility to exercise undefined
reserve powers for changing and unanticipated circumstances. The
conventions which have surrounded the exercise of the
Governor-General's powers will not automatically apply to a new
president. Indeed, it will become a totally new ball game.
Can any delegate here
truthfully say that an elected or appointed president of
Australia would continue to act in exactly the same fashion as
and recognise the same conventions as former governors-general? I
am sure that if Bruce Ruxton were our first Australian president
he might be tempted to see how far his powers really went. Of
course, Phil Cleary, who would make an interesting if not
excellent president, might like to show that he and not the Prime
Minister was the more legitimate office holder. Indeed, just
thinking of some of these possibilities should make all of the
delegates realise that the president's powers must be codified.
They must be clearly enunciated and appropriately reduced so that
the power of the people is vested in the hands of the people.
There is a need for the
president to be required to act upon the lawful and
constitutional advice of a democratically elected government.
Equally, there needs to be a speedy power of dismissal for a
president who abuses his or her power. The last vestiges of
dictatorial powers must be removed from the Constitution.
In conclusion, I have said
earlier that the events of 1975 have inevitably catapulted the
people of our nation towards a republic. But there is one person
whose belief and passion on this issue and whose enduring
enthusiasm for the cause should be recognised as having been
prepared to put this issue on the national agenda despite its
obvious political ramifications. That person is Paul Keating, who
as Prime Minister was prepared to risk the wrath and potential
alienation of many voters on both sides of the political fence
for elevating this debate to where it is today.
As we move towards the next
millennium on the road to a republic, this Convention is duty
bound to recommend a proposal for a referendum of the people of
Australia which represents the hopes and aspirations of us all.
Whatever the model, there can be no deviation from the essential
ingredient of a democratic constitution that the ultimate power
of the people must reside in the people and not with some
unelected, unrepresentative titular head who possesses excessive
powers and who might be tempted to exercise such powers contrary
to the will of the people. Let us all move forward towards the
republic of Australia where our democratic ideals and freedoms
are enshrined in our Constitution forever and where the will of
the people reign supreme.
DEPUTY CHAIRMAN- I
table a proxy from Jim Bacon MAJ, the Leader of the Opposition in
Tasmania, appointing Judith Jackson for Wednesday, Thursday and
Friday of this week.
Mr CLEARY- It is great to be
here. One hundred years ago the founding fathers produced a
constitution which was essentially a trade and administrative
document. To thwart the will of the people expressed in the
people's chamber, the conservatives fashioned a Senate capable of
vetoing the House of Representatives. When it was all over, the
righteous breathed a sigh of relief, for this was a document that
said nothing about who we were or what we aspired to become as
Australians. It expressly protected property- not the property of
blacks; it protected the property of whites. It did not protect
free speech. It alluded to the rights of Christians to worship in
their temple or the temple of their choice, but it never
suggested that the workers who wanted to gather at Webb dock
should be protected. It paid no homage to the history of the
continent before invasion. In essence, it was a timid trade
document. How ironic that today the forces of conservatism, as
represented at this Convention by the Prime Minister, should be
entering into a pact, an unholy alliance, with the leadership of
the so-called forces of modernity, the leadership of the ARM, to
again thwart the will of the people.
The people want an elected
president. They have told us that. They want a president who will
act as a moral and cultural arbiter. This alliance wants a
puppet; a puppet prised out of the party bureaucrats. The
conservatives seek inspiration from the likes of Edmund Burke and
a host of 18th century ascendancy thinkers to defend their cause.
Theirs is a mean-spirited Hobbsian view of the world that would
suppress the enthusiasm of Australians for renovating the
political landscape and imbuing it with alternative notions of
participation.
Mr Turnbull
interjecting-
Mr CLEARY- Maybe you
are one of them, Mr Turnbull. The Hobbsian world evoked by the
conservatives in this chamber is at odds with the much vaunted
Australian notions of egalitarianism and a fair go.
Mr Ruxton
interjecting-
Mr CLEARY- It is even
at odds with the brash larrikinism of some of the constitutional
monarchists who sit on the left of the chamber. Maybe you can
call yourself a brash larrikin, if you like. About the time of
the last convention one of our greatest poets, Henry Lawson,
claimed that Australians would doff their hat to no man and call
no biped master. Now the best the conservative wing of the
republican leadership can offer the people is an appointed
president- a president palatable to the major parties. Their
justification is pure scaremongering. It would not stand up in a
court of law if Mr Turnbull was defending you- forget yourself.
What are they frightened of? Do they fear a creative tension in
the political system, or is it more that they fear giving up
their power or their loss of influence?
Surely in a robust democracy
we should welcome a president prepared to canvass shades of
opinion distinguishable from those of the parliament. Democracy
depends on a diversity of opinion freely expressed. Now more than
ever the people are alienated from the parliamentary process,
seeing it for what it is- a rubber stamp for executive decision.
I saw it for four years in the House of Representatives- good
people forced to vote against their principles. Sure there will
be an Australian head of state disconnected from the Crown all
right, but he or she will be selected by the major parties, and
that is not good enough, with all respect to Governor-General
William Deane, who has had a profound effect on the minds of
Australian people.
But if we put this other
character in, which may be what the monarchists want to do, that
will suppress all the energy that exists out there in the
community- the energy that Clem Jones, at 80 years of age, talks
about. He puts some of you old-timers to shame.
Mr RUXTON- Oh, calm
down!
Mr CLEARY- He has
young ideas; yours are antiquated, my friends. It is simple
really to codify the powers of the head of state. We have heard
the same yarn from Mr Craven when he was up here today. We have
heard that for years- him writing in his favourite rags, trumped
up by Murdoch, to run the deal against democracy. We heard it
again today- `No effect whatsoever, Your Honour.'
Who among us would argue that
the election of Mary Robinson as President of the Republic of
Ireland was a retrograde step, or that it has in any way
diminished the workings of that democracy? As we discussed
yesterday with the eminent Gareth Evans, it is possible in
Ireland for bills to be referred to the High Court. Why should we
be unhappy about that?
Mr RUXTON- He's a
Melbourne High School boy- give him a go.
Mr CLEARY-
Conservatives are trying to tell us that the people cannot be
trusted to elect a president- this despite the fact that the
major proponents of this argument are here by virtue of a vote of
the people and not by appointment; this by virtue of the fact
that the people have had their say. Even Bruce Ruxton got here on
the people's vote; hard to believe, but it happened.
The conservatives are trying
to frighten this Convention into adopting a non-elected head of
state by claiming there will be tension between the elected
president and the parliament. Surely in a robust democracy we
should welcome that creative tension. In a sense we have got it
today with Governor-General William Deane. There is a tension
there, but it has been good for us because William Deane has
actually raised questions that some of the timid were not
prepared to raise. He also defended me in the High Court when I
was sacked. In fact he said that I should not have been ruled
ineligible. I consider him a great man and a wise man.
An independent head of state
would truly invigorate the political process, and it is clear the
people have already said this again and again and again. But,
when the people speak, the conservatives drag out the 18th
century philosophies and claim something about the tyranny of the
masses; but they will not quite put it in print. What they are
really trying to say is that it is a tyranny of the masses. Get
specific with us about why you are scared of the people. The
conservatives are also trying to frighten this Convention by
inventing a raft of complexities which the eminent Gareth Evans
tells us just is not true. As we have seen in 1975, the existing
Constitution is unclear about the exact powers of the Queen's
representative. Why haven't you been complaining for the last 12
years about the powers of the Governor-General? Why haven't we
had complaints about that? No reason.
Mr TURNBULL- Come on,
what's the answer.
Mr CLEARY- Because you
actually like the tension, but we will go a step further by
electing a person with a broader mandate. What we need is a
clear, simple set of codified powers. We can do that. We would
regard ourselves as experienced, some would regard themselves as
wise, and many would say that they are up to doing this
particular task. I think they are.
Enough of the hand wringing.
Whatever my opinions have been of the people here, I never took
the people here for hand wringers. I do not take you as a hand
wringer, Bruce Ruxton. Leave the hand wringing to- I was going to
say merchant bankers; that is a bit unfair. This is our one
opportunity for a thorough, meaningful, inclusive renovation of a
tired political system. A prerequisite has to be an elected head
of state protected and enhanced by a clear, direct and simple set
of codified powers. That is what we have to do.
I have been at a couple of
meetings with Clem Jones. Clem is 80 years of age, full of
vibrant ideas, and what does Clem Jones want to do? He actually
wants to enhance the powers of the president. In the meeting last
night he suggested that the president ought to have the power to
refer legislation back to the parliament. Good. What a novel
idea, Clem. Oh yes, don't talk about that, though, Clem, because
the constitutional lawyers say it is too difficult. But you can
find a way. There are plenty of times when the people would love
to see some legislation rethought and there are plenty of times
when legislation ends up being rethought because of the will of
the people. Legislation has been accepted when party members- and
I know that some of them here know this is a fact- stick their
hands in the air when they think they shouldn't. The irony or the
paradox is that the legislation ends up going back and they say,
`I didn't really support it anyway.'
So, Clem, you have been one
of my inspirations at this Convention. I have never met you
before, but to find someone with young and vibrant ideas shows
that you don't have to be 25 to have vibrant ideas. There is an
old Mao Zedong line about saying articulately to the people what
they are saying to you confusedly. Clem Jones is saying in a
careful and articulate way what the people are saying confusedly.
But in amongst the confused message is the notion that the people
want to recognise our black history. I want to recognise it in a
preamble. I want us in that preamble to say things about who we
are and then put a president in, Clem, who will protect that
Constitution for us and not a puppet prised out of the party
bureaucrats.
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Last updated: 21 October 2000
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