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TRANSCRIPT OF
PROCEEDINGS
Tuesday, 3 February 1998
Page 7
DEPUTY CHAIRMAN- I
should say that the initial debate that we began yesterday was
intended to be- and is continuing as- a broader debate. That is
why speakers had 15 minutes and why people really had a pretty
broad remit. The chair and I took the strong view- and perhaps I
should have acted earlier on this- that, on the specific issues
coming up, people are really invited to address the precise
subject matter. It is not a broad debate; it is a very narrow,
sharply focused debate. I hope other speakers will take that into
account.
Dr GALLOP- I cannot resist the
opportunity to commence my small speech today by referring to an
incident that occurred in 1982 when the rage was still being
maintained in respect of the 1975 crisis. It leads me to conclude
that, when we discuss the powers of the Governor-General, the
powers of a head of state, it is really all a matter of
perception.
In 1982 the rage was being
maintained in the University of WA. The speakers were myself,
then a lecturer at Murdoch university, John Dawkins, then a
member of the federal parliament, and Professor Peter Boyce, who
has just recently retired and, I believe, has stood on the ARM
ticket in Tasmania.
Unfortunately, the rage had
diminished somewhat by 1982 and there were not a lot of people at
the meeting but there were three elderly gentlemen at the back of
the hall with very distinguishable short back and sides haircuts
and very dark, baggy suits. We could not quite work out where
they were coming from. We all finished our speeches and one of
them finally asked, `It is all very well to be talking about the
powers of the Governor-General but I would like to know when the
speakers are going to take up the armed struggle against the
British empire,' at which point one of the speakers had a call of
nature, another hid under the table and I was left facing 150
years of rabid Irish republicanism.
Can I say that 15 years later
I believe that the Irish republican model is a very good model
and provides a very good basis upon which we can discuss this
topic of the powers of the head of state, the powers of the
Governor-General. Let me refer quickly to the opposition
arguments about codification, which has been the recommendation
of the working group that I was on, reported by Mary Kelly
earlier this morning.
Opposition to codification
seems to be based upon three propositions: firstly, that the
conventions are too complex for ordinary mortals to comprehend;
secondly, that the conventions are too controversial for there to
be agreement; and, thirdly, that history is constantly marching
on and creating new and unforeseen consequences. I could address
each of those in turn but I would rather like to look at the hard
version of that group of objections. I think the hard version of
that group of objections really takes shape as an ideology which
sees political life, in essence, as a mystery, the guidance and
occasional intervention into which of non-elected heads of state
is necessary if it is to work.
The only restraint that will
act upon those heads of state will be tradition and convention.
The hard version of that particular view which was put forward
earlier today by one of the working groups I believe creates
problems for a genuine Constitution. What constitutionalists try
to do is anticipate the future, plan for the future and create a
framework of certainty for those that participate in the
political process.
As we have seen in Australia,
occasionally things go wrong. An example is 1975. It exposed a
serious flaw in our system where great uncertainty and, indeed,
great disagreement resulted about the reserve powers. Of course,
the hard version of that ideology I referred to earlier was used
to justify the precipitous use of those reserve powers rather
than the resolution of a political crisis through the political
process and parliamentary negotiation. That, of course, is called
responsible and parliamentary government, which ought to be the
basis upon which we build our Constitution.
Our present Constitution, as
Professor George Winterton has written so often, simply vests the
power to appoint and dismiss a Prime Minister and to refuse to
dissolve parliament with the Governor-General in extremely
generalist terms. It then relies on these conventions to regulate
their exercise. There is only an apparent consensus about the use
of those powers. As Professor Winterton himself has said in his
many written works on this subject, the boundaries are often
indistinct.
If we are to accept the
existence of such reserve powers, their replication in any case
is always going to be subject to question. We need as a people
and deserve as a people more certainty about how our political
system operates. Different methods have been proposed to handle
such situations- most notably, partial codification on areas of
general consensus. The distinction between partial and full
codification, I believe, is not as great as it would appear. But,
certainly, I think we should seek as full a codification as is
practically possibly.
There has also been a
suggestion that we create an advisory body to help the
Governor-General or the head of state in the use of their powers,
or the so-called `bee sting model', which would have it that the
head of state would automatically lose office in the event that
they use their reserve powers.
Let me give three arguments
in favour of full codification for the consideration of this
Convention. Firstly, to those who believe we need the basis of
experience before we take up any constitutional proposition, I
think we can safely say that the experience of other
jurisdictions, be they monarchies, such as Japan and Sweden, or
republics, such as Ireland and Germany, has shown that it can be
done, that we can have responsible parliamentary government and
non-executive presidencies or monarchs without political
interference. We are not talking here of an untried, untested
leap of faith but of a constitutional practice that is proven.
Secondly, to appeal to the
republicans in the Convention, codification is part and parcel of
the antimonarchical ideal of a republic. There are many parts to
a republican ideology. But, as Philip Pettit has written, with
respect to the antimonarchical, antihereditary elements of a
republican ideal:
This idea is perhaps
nothing more than an expression of the deeper idea that republics
are meant to be governed by laws, as it used to be put, and not
by individuals: that they require the rule of law, in which there
is no room for the caprice of the autocrat.
In other words, under a
system in which there is reserve power, the potentiality always
exists for the application of those powers in ways that reflect
the prejudices of those individuals rather than the laws and
conventions of the society. I believe that we ought now to move
towards a system that goes away from that essentially pre-modern,
essentially monarchical view of the world.
Thirdly- and not as important
as the first two arguments, but, nevertheless, I believe it is an
important argument- codification of the powers of the head of
state may very well pave the way for a much more serious
discussion in this Convention, and here I am addressing, in
particular, delegates from the republican movement, of the direct
election of the head of state in a future republic. This is an
aspiration that is deeply held by the people of Australia, an
aspiration that we should take seriously, an aspiration which
should lead us to provide a workable and practical model for its
realisation. We do have a responsibility as delegates to this
Convention to heed the voice of the people.
A non-executive presidency
with codification of the powers and the limitation of those
powers paves the way for a very serious consideration of that
direct election. I believe that we have an obligation to place
that on the agenda of this Convention and to give it serious
consideration.
So, Mr Chairman, I believe
the arguments against codification ultimately fall down. They are
based on a view of the world which I think might apply to life,
in general, but there is mystery for which we need some
flexibility and some guidance. Certainly, for life in general we
need guidance from our most reverent friends here. But we are
talking about politics. We are talking about a human creation for
which there should be rules. Those rules should be understood by
the people that participate in that political process.
So I believe that the
anticodification point of view is simply based upon a view of the
world which is now antiquated and out of place. Finally, as I
said, if it paves the way for a serious discussion of direct
election, I believe it will have played a very useful purpose.
DEPUTY CHAIRMAN-
Before I call Peter Beattie, I should advise that names for
tomorrow's working groups should be handed into the secretariat
by 2 p.m.
Mr BEATTIE- Since 1996, the
Union Jack has flown over the Queensland state parliament. We are
the only state parliament in Australia which has the Union Jack
flying over our deliberations. Our Coat of Arms was changed in
the 1970s to include a rampant English red deer. All that is
missing in the eyes of some is a furled umbrella. I mention this
so that all republicans appreciate the determination of those
opposed to an Australian republic and the difficulty of the task
facing us.
I say to my fellow
republicans: remember that any constitutional change has to be
approved by a majority of people in a majority of states. There
will be a campaign run by the monarchists in states such as
Queensland, Western Australia and South Australia to defeat the
move to a republic by defeating any proposition in those states,
thus preventing there being a majority of states- in other words,
the referendum will fail.
We cannot win the republican
argument by winning just in Sydney and Melbourne. I stress: we
must win a majority of people in a majority of states. We must,
therefore, produce recommendations that result in a convincing
referendum question, and that must, in my view, include the
popular election of a president. Those who attack that on the
grounds that it is populist attack the Australian people.
There are two issues before
us. The first is the powers of the new head of state and the
second is how those powers are defined. As a strong supporter of
the direct election of the president, I support the codification
of the president's powers to the maximum practical extent to
eliminate any uncertainty-
SENATOR BOSWELL-
Gareth says you can't do it.
Mr BEATTIE- I will
come to the Senate in a minute- to eliminate any uncertainty or
ambiguity about their meaning. As well, I support certain
limitations on the powers of the president in order to eliminate
any conflict with the principles of responsible government.
We need to be very clear that
whatever goes to the Australian people in the form of a
referendum question is clear and unambiguous. If it is otherwise
then those opposed to a republic will seek to use it as an
opportunity to attack the proposition across Australia,
particularly in the outlying states. Therefore, codification is a
clear way- I will come back to whether it is partial or full in a
moment- to give certainty.
I disagree with some of the
submissions that have been made this morning that are opposed to
codification. Codification provides certainty. It provides
certainty in terms of the argument, it provides certainty for the
Australian people, it provides certainty for the head of state
and it provides certainty for the government. Codification is a
key part of this referendum being successful, and that is the
bottom line. Those who have argued against codification have used
arguments like: existing conventions are unreviewable. Says who?
What an arrogant position to take. The Constitution and the
system of government we have are there to serve the Australian
people- not some archaic view. Therefore, they are up for
consideration.
The Constitution is not a
dead document, it is alive. It will change from time to time, and
it must change. But the final arbiter is always the Australian
people, in the form of a referendum. They have demonstrated, on
many occasions, that they are unwilling to change without very
good cause, and that is the final arbiter- the final break. I see
nothing wrong with putting the reserve powers in the
Constitution. I have heard no argument here to suggest a contrary
view.
SENATOR BOSWELL-
Gareth says you can't do it.
Mr BEATTIE- What
happened in 1975, in my view, confirms the need to achieve that.
I believe we are capable of codifying and of drafting the
appropriate codification clause. I refuse to accept the argument,
which I regard as pathetic, that we are not capable of
codification. That is an admission of defeat before we even
start- a pathetic argument to say the very least. I believe we
are capable of drafting the appropriate codification requirement.
I know that one of the most
contentious issues here relates to the area of codification in
terms of limiting the powers of the Senate by amending the
Constitution to remove the Senate's right to reject or
significantly delay bills appropriating money for the ordinary
annual services of the government. I know that will be the issue
in debate. It is an issue we need to handle very carefully. Let
us get a few facts on the table in terms of this debate. Let us
not forget that, in 1911, the House of Lords lost the power to
block money bills. It happened in Britain. For those of you who
run around arguing the monarchists' cause, look at what happened
in Britain in 1911.
Let us talk about the Senate
for a moment. The Senate has become a party political house. It
is not the states house, which is where it started. The system of
party endorsement has left the Senate as the domain of political
parties, and to argue otherwise is a nonsense. Too often, some
have argued that the Senate has been a dumping ground for party
hacks on both sides of the house. The point is that what happens
in terms of the Senate- Senator Boswell may be a bit more
reluctant to interject on me now- is that senators are elected by
the people of the state and they are accountable to no-one. That
is exactly what happens.
That is why, in terms of this
argument, I am prepared to go back to 1975 and say that I believe
that what happened then has, in my view, led to the conclusion
that the reserve powers should be in the Constitution. I have no
hesitation in taking that view, and I come from the state where
the late Senator Bertie Milliner, you may recall, passed away and
the state parliament then refused to appoint a senator from the
same political party. They sent Albert Patrick Field down here,
who found his way into a footnote of history by that short
endeavour on his part.
Let me be very clear: I am
totally supportive of an elected president to reflect the will of
the Australian people. But the way to give certainty is to codify
the powers and out of that we will avoid, as much as is humanly
possible, a hysterical campaign by some in the referendum who
will wish to defeat the move towards an Australian republic.
Therefore, I am generally
supportive of the proposition advanced by Gareth Evans in terms
of committee recommendation 7. I was a member of that committee.
The other issue there that I find attractive relates to enabling
the head of state to refer any bill to the High Court for a
decision as to its constitutionality. I think that is an
appropriate role for the president to have. If you like, the role
of the president would be as the defender and protector of the
Constitution and, at the end of the day, the matter would be
determined by the High Court. This is based on the Irish model.
This is what the Irish President has the power to do and I think
it is an appropriate power for the president to have. When Mary
Robinson visited this country and there was a great deal of
warmth I, like many people in here, thought she played a
constructive and positive role on behalf of her country. I
believe our elected president could do exactly the same thing.
I conclude my remarks by
saying this: I fear that what will come out of the debate
resulting from this referendum question will be a campaign by
some to attack the issue of the Australian republic by attacking
the question that goes to the Australian people. That is why it
needs to be clear, it needs to be unambiguous and it needs to be
certain. Codification is a key part of that. To some extent, the
argument about partial and full codification is a matter of
semantics. What I think is required in that debate, and the
responsibility that rests on us, is to come up with what
codification is necessary to give certainty. That, I believe, is
the bottom line. I believe the Australian people watching this
Convention want to see not only a positive and constructive
outcome from all of us that can be put to them in the form of a
referendum, but also the direct election of a president.
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