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 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