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TRANSCRIPT OF
PROCEEDINGS
Tuesday, 3 February 1998
Page 6
DEPUTY CHAIRMAN- I
call the eminent Gareth Evans.
Mr GARETH EVANS- As they say in
show business, never follow children, animal acts or Phil Cleary;
and certainly never, ever get an endorsement from him. My view of
the role of the head of state is and has been so long as I can
remember that it should be essentially ceremonial and symbolic:
representing the nation at home and abroad, embodying the spirit
of the nation about which Janet Holmes a Court spoke so
eloquently yesterday, and being available as a source of
consultation, advice and warning to the government of the day by
all means but having no capacity to do any damage to any properly
democratically elected government.
For so long as I have been
coming to official constitutional conventions- and, having a
masochistic streak, I have been in one capacity or another to
every one of these things since 1973- I have supported efforts to
codify and limit so far as possible the powers of the head of
state, and I do so again today. Those efforts have been
spectacularly unsuccessful in the past and may well be so again
today. If someone like Ron Boswell has not already quoted me from
the early 1980s I am sure they will, so I will get in first. I
have said in the past, yes, that trying to come up with a
codification and power limitation model that attracts
across-the-board support is a labour of Hercules. Yes, I have
said in the past that achieving complete consensus on this is a
task likely to elude us even if we worked at it for 30 years or
more. Nonetheless, despite that obvious feasibility problem, I do
believe the effort is worth making again and that the issue
should at least be seriously explored by this Convention.
With this in mind and to test
the issue, I will be moving later in the day that which Bob Carr
called the very bold resolution emerging from Working Group 7
that argues, as Mary Kelly laid it out earlier this morning, for
three things: first, full codification of the powers of the head
of state in order to eliminate to the maximum practicable extent
uncertainty and ambiguity about their meaning; second, the
limitation in that context of the powers of the head of state in
order to eliminate, again to the maximum practicable extent, the
possibility of any conflict with the principles of responsible
parliamentary government; and, third, 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.
The resolution itself does
not try to set out the actual text of the constitutional changes
necessary to achieve this, rather it points the way to how that
text might be constructed. So we say, going through each category
of powers, that, for example, in the case of the powers expressly
already given to the Governor-General and made subject to the
advice of the Federal Executive Council, that those powers should
be retained as they are, obviously, but with some clarification
about the position of the Federal Executive Council, making it
clear that that is actually the government of the day. In the
case of those powers expressly given to the Governor-General at
the moment but about which no guidance at all is given us to
their exercise and where conventions simply prevail, we say,
`Yes, the rules governing exercise of those powers should be
spelt out in detail.' We do have a model for that in earlier
resolutions of previous constitutional conventions and more
particularly in the report of the Republic Advisory Committee in
1993.
In the case of the reserve
powers, unspecified and certainly undefined in the Constitution
in relation to appointment and dismissal of Prime Ministers and
dissolution of parliament, we say in this resolution that
detailed rules should be spelt out to cover in an appropriate way
each situation in such a way as to make it clear that the head of
state retains no independent personal discretion in dealing with
these matters. Here again one would take into account the report
of the 1993 Republic Advisory Committee in that respect.
Fourthly, in the case of the
Senate's power to block supply, which is not expressly limited by
the present Constitution, we argue that the Constitution should
be amended by a provision removing the Senate's right to reject
or to significantly delay bills which appropriate moneys for the
ordinary annual services of the government.
Attached to the resolution as
circulated is the relevant draft from the Republic Advisory
Committee in 1993, which does as well as any other draft I have
seen to date the basic job of codifying and limiting the head of
state's powers. To round off the whole story, that would need to
be supplemented by a further provision directly addressing the
Senate power question.
What I suggest is that, if
there is sufficient support today which emerges from this model,
it would certainly be possible for that working group to
reconvene and bring back to the Convention next week a fully
developed draft constitutional text.
The question of the Senate's
powers is, of course, a particularly sensitive and delicate one
and it is likely, I acknowledge, to be the subject of some
disagreement; although hopefully not as much as in earlier years
when tempers were still very hot and nerves were still very
frayed by the events of 1975. But you simply cannot take a
position on the head of state's powers without also taking a
position on the Senate's power. The two issues, as the Prime
Minister said yesterday, are inextricably connected. Given what
the Prime Minister described yesterday as the almost unique power
enjoyed by the Australian Senate to block supply and the problems
that arise if there is a protracted deadlock between the two
houses, you can deal with a situation in either of two ways.
You can address the problem
in the first place after the event, by giving the head of state
the power to dissolve the parliament against the will of the
government of the day, albeit perhaps with a few more hurdles to
jump over along the way, for example without having to wait for
an actual illegal payment to occur- something which did not
trouble Sir John Kerr in 1975. So you could do it that way:
actually give the power in a tightly defined way to the head of
state. Or you could avoid the problem arising in the first place
by removing the Senate's power to block supply- a power which is
effectively unique to the Australian upper house, one that does
cut across the whole concept of Westminster style parliamentary
government and certainly is not available in Westminster itself,
and which is also a power which before 1975 no-one ever would
have thought would actually be exercised. It will come as no
surprise to delegates that, faced with this kind of choice, I,
like Bob Carr, opt for choking off the problem at source by
denying rather than confirming the Senate's power, and that is
the proposition which is tested in Working Group 7's resolution
before you.
The whole question of
codification and limitation of the head of state's powers is
logically separate and distinct from the issue of how the head of
state should be elected or appointed. Whether you opt for direct
popular election or parliamentary election or prime ministerial
appointment or some combination of these, you can have
accompanying that model any model you like on the codification of
powers question. That has become clear from the contributions
made by the working group convenors this morning.
That said, there is a very
important practical and political connection between the two
topics. If you go down the path of direct popular election, with
all the risk of creating a rival democratic power centre that
that implies, then, if you do not want to turn our existing
parliamentary system upside down, you simply have to limit or
eliminate from the system all those powers which are capable of
misuse in the sense of coming into conflict with the principles
of responsible government. If, on the other hand, you opt for
parliamentary election or prime ministerial appointment as at
present, you do not have to anything like to the same extent the
problem of rival democratic legitimacy, and to that extent it is
less necessary- although in my judgment it is still highly
desirable- to go down the path of codification and elimination
that is mapped in Working Group 7's resolution.
My own position on all of
this is that if we can agree on the elimination of all powers of
both the head of state and the Senate which are incompatible with
the properly functioning system of responsible parliamentary
government, then there is absolutely no reason why we should not
opt for direct popular election. If we could have a
constitutional system like Ireland's, capable, as Phil Cleary
said, of producing a President like Mary Robinson we would be
very well served in this country. It would be workable in both
law and in practice and it would be a model which would be
responsive to that public enthusiasm, which undoubtedly presently
exists, for a direct popular vote.
But let us remember that two
essential characteristics, which must never be forgotten, make
the Irish system workable and effective. First, the Irish
President has effectively no independent discretionary power
whatever when it comes to the appointment and dismissal of prime
ministers and governments and the dissolution of parliament.
Secondly, there is effectively no capacity whatever in the Irish
upper house to block supply in a way that could create deadlocks
that ultimately force the President to play an umpire role.
My very short concluding
point is this: the full codification and limitation of powers
model in the Working Group 7 resolution is worth pursuing for its
own sake. But the issue has this further consequence: if we can
agree on a full-scale codification or elimination of all relevant
powers that are capable of misuse, then we do keep alive the
option of direct election of the head of state. If we cannot
agree, if there is no substantial majority for that position on
the elimination of powers along the lines proposed in the Working
Group 7 resolution or something like it, then the only viable
election or appointment model is a less ambitious one- either
prime ministerial appointment as at present or, as I would prefer
in that situation, parliamentary election.
Mr PATRICK O'BRIEN- We have
just heard Gareth Evans recommending the elimination of all
checks and balances on the political executive in parliament.
What he has advocated is the abolition of what checks we do have
in our existing Constitution on the absolute powers in between
elections of our Prime Minister. Our Prime Minister has the
absolute power to declare war, to make all treaties and to
appoint all ambassadors and all judges in the federal
jurisdiction. He has enormous powers of patronage- who gets arts
grants, who gets the slices and shares of AUSSAT, et cetera. So
he may as well not only abolish the office of head of state but
also, in the words of Bertolt Brecht, `abolish the people'.
Because that is what he is advocating. He is advocating what many
English constitutional commentators of both conservative and
radical persuasions have called `the full blast of the elected
dictatorship of the Prime Minister'. The model he is advocating
works in Singapore. Singapore is minimalism in action. I notice
that my Premier of Western Australia loves Singapore- law and
order, no graffiti, no chewing gum.
Mr RUXTON- No long
hair!
Mr PATRICK O'BRIEN- I
wish to congratulate those Labor Party state leaders such as Dr
Geoff Gallop, Mr Mike Wran, Mr Peter Beattie- and there may be
others- for being courageously consistent. They have legitimate
ambitions to become heads of government. Gareth Evans is busting
to be Prime Minister. He would knock off Kim Beazley tomorrow if
he could. But the consistency of the gentlemen I have named is
that they seek the direct election of the people to satisfy their
ambitions to become heads of government. Yet here we have our own
Prime Minister and people sitting here- Mr Court, Mr Olsen, Mr
Carr and others- being totally, absolutely fraudulently
hypocritical. They want our vote to satisfy their ambitions to be
parliamentarians, to be ministers of the Crown and to be premiers
and prime ministers, yet they tell us that we, the Australian
people, are not morally good enough to elect directly our head of
state. They say, `We want to do that too.' In my view they have
exposed themselves before the Australian people in the manner I
described.
It is irresponsible and
politically dangerous to assume, as have ARM enthusiasts, that
there is some sort of magical constitutional quick fix for
Australia to become a true republic- the Flick solution. Remember
the old ad: `One flick and they're gone.' The change that we are
discussing and addressing at this Convention is a huge task. As
with the American colonies of Britain in 1776 and as pointed out
at the time by John Adams, the transition from a constitutional
monarchy to a republic involves nothing less than the
extinguishment of all authority under the Crown as the foundation
of government and the reconstitution of all legislative,
executive, judicial and bureaucratic institutions under a new
authority. The question then becomes the vital one: who or what
will constitute that new authority on which government is to be
founded?
The ARM and their supporters,
the wielders of the system, want themselves to be the new
authority. When you ask, `Who are the 80 per cent who say that we
have a directly elected president as our head of state and who
are the 13 to 15 per cent who oppose it,' the answer is simple.
The 13 per cent are the politicians- or many of them- who operate
and benefit from the system, those former justices of our courts
and, in some instances, governors-general who got where they got
through the preferment of the present system of patronage. Then
there are the moguls and their paparazzi and their glitterati.
They are the 13 per cent. The rest are the majority of the
Australian people.
Mr GARETH EVANS- What
about the powers issue? What about coming back to what you are
supposed to be talking about- the powers?
Mr PATRICK O'BRIEN- I
did not interrupt you.
Mr GARETH EVANS- I was
trying to help you.
Mr PATRICK O'BRIEN- So
it is a case of the hierarchical elites wanting the power to
elect their head of state. That power must reside in the people
of Australia. The Australian people must constitute the new
source of authority. We must say that all legislative and
executive power resides in the people and that, by the
constitutional grant of the people, those powers shall be
exercised through particular institutions such as the head of
state, the Prime Minister and the parliament. It is ridiculous to
talk about rewriting the Australian Constitution and still define
the Governor-General or head of state as the source of executive
authority. You will not get a republic unless the power of
sovereignty is clearly defined in the Constitution- not just in a
preamble but in the body of the Constitution- as the sovereign
source of all power.
I have taught the
Constitution to primary and secondary school students- right the
way through. The invariable reply as to why the Australian people
will not take an interest in the Constitution is, `It has nothing
in it for us. It is a document that grants power to government
over us.' I would bet anyone here that if a referendum was put
tomorrow: `Will Australia become a republic with the Australian
people as the sovereign source of all political authority and
with the right to elect their head of state?' then it would pass
by a vote of something like 75 per cent. We cannot become a
republic on the basis of 51 per cent; we need a much bigger
majority. I am not saying this for trickery. The ARM people know
this. Why do they cling to this hierarchical elitist system which
would be far worse than the ACM? Because they are elitist and
hierarchist. They are not democrats. That is the simple answer.
Now, I come to the outcomes
once the people grant through the Constitution executive
authority to a new head of state whom we are happy to call the
Governor-General because `president' tends to be associated with
full executive systems such as America's, where the head of state
is also the head of government, or more modified versions such as
in France. It also maintains continuity.
The proposals that we are
putting forward- that is, the group to which I belong in Perth
and the group that I have associated myself with here- indicate
and demonstrate that the desire of the overwhelming majority of
the Australian people to directly elect our head of state is not
a radical measure to be feared but a welcome, natural and
evolutionary step that can be introduced through simple
amendments to our Constitution. If that is done- as Gareth Evans
pointed out- by changing the system to a republic you do upset
the balance of relationships between the existing offices, but
the third rail that all the hierarchical elitists do not want us
to touch- `Touch it and you're dead,' they say- is prime
ministerial power, the absolute powers of the Prime Minister.
They are far more potent than the power of the Senate.
The office of Prime Minister
must be made a constitutional office. How can that be done? Very
simply. If we are going to codify in order to restrict some of
the so-called reserve powers of the Governor-General, such as the
sacking of government, et cetera, we should codify some of the
conventions relating to the office of Prime Minister. Let us
codify formally the convention that the leader of the majority
party in the parliament, the House of Representatives, becomes
Prime Minister but let us say in the Constitution that the
parliament shall elect the Prime Minister. That strengthens the
power of the parliament.
Now, of course, normally it
will go to the person who is the leader of the majority party
but, as we know, the institutional person who has the power to
hire and fire has the real power. So if you give the power of the
hiring and firing of the head of state, which is a sovereign
power, to the Prime Minister and parliament, you are making them
the sovereign authority. To conclude, the first clause in our
Constitution must say words to the effect- and I have written it
down in proposed amendments here- that all legislative and
executive power resides in the people. (Extension of time
granted)
Mr GARETH EVANS- And
you can address the topic for the first time.
Mr PATRICK O'BRIEN-
You see, that is the problem.
DEPUTY CHAIRMAN- Will
you get on with it.
Mr PATRICK O'BRIEN-
Yes, but would you ask this person not to interrupt. The clause
that I would recommend goes something like this: the executive
power of the Commonwealth of Australia is vested in the
Australian people and, by their grant or leave as codified in
this Constitution, is exercisable by the Governor-General as
their directly elected representative and extends to the
execution and maintenance of this Constitution and all laws of
the Commonwealth.
As to the duty of the head of
state or Governor-General, this is what I would propose: as the
delegated and directly elected representative of the Australian
people and subject to this Constitution, the Governor-General's
sworn duty shall be to honour and defend the integrity of this
Constitution and to ensure that its terms and provisions are
adhered to by all members and branches of government.
This means that there must be
some discretionary power because if advice of the Federal
Executive Council means that the Governor-General or head of
state must do what he is told you are reducing the office to a
kennel. You have a lap-dog. Why have it at all? So he must have
some discretion to act independently of the advice given to him
because there might be things that he knows that the Prime
Minister and the parliament have not known, or in the event where
you get one party totally dominating both houses of parliament.
In conclusion, I believe the
proposals that we are putting forward will have three outcomes:
they will lead to increasing the ability of all Australians to
have a greater say in the political and governmental processes of
our country and who alone will possess the legislative and
executive powers of government to be exercised on their behalf by
the parliament and the Governor-General as their representatives
and not masters; they will have the effect of establishing and
strengthening the role of parliament as a true legislator- and we
all know it is not a true legislator: it is principally a rubber
stamp for the political executive; and they will have the effect
of subjecting the political executive, the Prime Minister and
cabinet, to greater checks and balances by making it more
accountable to the Australian people, the parliament and the rule
of fundamental law through its necessary and long overdue
incorporation into the Constitution. Thank you, ladies and
gentlemen.
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