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 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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Last updated: 21 October 2000