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TRANSCRIPT OF
PROCEEDINGS
Tuesday, 3 February 1998
Page 8
Dr DAVID MITCHELL- Mr Deputy
Chairman, I was privileged to speak yesterday and to set a
pattern for the position which I present to this Convention and
to the people of Australia. I was elected on a policy of
supporting the present Constitution and of supporting the
sovereignty of the law as expressed in our Constitution under the
Queen and the Governor-General. You will recall, as will the
people who were listening on the radio- but maybe some of those
present here this morning have not yet had the opportunity to
read their Hansard from yesterday; there was only a very
small number present in the chamber yesterday- that I explained
that as we read Queen in the Constitution we should, in general
terms, understand this to mean the Crown; that is, the person
responsible for administering the executive government and for
administering and maintaining the law.
I speak to the question: if
there is to be a head of state, what should the powers of the new
head of state be and how should they be defined? Of course, there
should not be a new head of state. I will not repeat what I said
yesterday but it is perfectly clear that we do not need a new
head of state.
In order to determine what
the powers of a new head of state should be, if there is one- and
I sincerely hope there will not, and I believe that the people of
Australia have sufficient understanding and good sense to ensure
that there is not- but if there is a new head of state it is very
important that we should understand the responsibilities of the
Governor-General now; the responsibilities as spelt out in the
Constitution. It is difficult perhaps to understand the full
extent of the reserve powers because they are not spelt out.
There is a very good reason why they are not spelt out, and this
is because it is the responsibility of the Governor-General to
protect the people.
I know that there are some
who will say, `But the parliament has been elected by the
people.' That is true. You have heard in an excellent address
from Mr Paddy O'Brien this morning how the Prime Minister has
extremely dictatorial powers. Not only does the Prime Minister
have extremely dictatorial powers but the government of the day
working together has totally dictatorial powers, irrespective of
what the opposition might think and irrespective of what the
people might think. One perceived that in 1975 at the time of
what is often called the dismissal. There, the Governor-General
dismissed the Prime Minister and called an election. It was the
Governor-General who called the election. Of course, he had
discussions with his new Prime Minister, Malcolm Fraser, but it
was the Governor-General who actually called the election. He
said to the people of Australia in effect, `I have done this in
an endeavour to protect the people. What do you think about it?'
And by the greatest vote ever the people of Australia said, in
effect, `Governor-General Sir John Kerr, you did absolutely the
right thing. We have had enough of this government.'
Some people are speaking
about the need for citizen initiated referenda and a right to
recall members of parliament, a right to recall a government.
That is exactly what exists in the Governor-General now. There is
a right to recall; the Governor-General protects the people.
Conventions are important, but conventions cannot change the law.
If the Constitution specifies that the Governor-General has a
power, he has that power. If there is a convention that he does
not exercise that power, that convention is that he does not
normally exercise the power, not that he never exercises the
power.
I know you all have your
copies of the Constitution in front of you in this house today,
for that is exactly what we are talking about. Maybe you do not
need your Constitution in your hand; maybe you know your
Constitution so well that you do not need to be referring to it
from time to time. You will be aware that particular powers of
the Governor-General are spelt out in section 58. The
Governor-General has the discretion- and you will recall from
what I said yesterday how he exercises that discretion and the
restriction on the exercise of the discretion- to decline to sign
or pass into law a bill passed by the parliament. This is for the
protection of the people. He does this by reference to the
interests of the people. He does this in his responsibility under
God. He does have this power and he should have this power. Of
course, a Prime Minister upset would be expected to dismiss the
Governor-General, at least tell the Queen to, and the Queen must
act on the Prime Minister's advice. He would tell the Queen to
dismiss him. The people will have their say at the next election,
won't they, as to whether the Governor-General was properly
dismissed or not?
You will see, or you know
already, that the Governor-General has the command in chief of
the naval, military and air forces. The Hon. Gareth Evans seems
to have left the chamber. The Hon. Michael Hodgman will recall an
occasion when there was a dispute between the Tasmanian
government and the federal government, when a particular federal
government minister determined to use the air force in opposition
to the Tasmanian government position. Now, supposing it had not
just been the one use of the aircraft but supposing the minister
concerned had decided to send a fleet of bombers to Tasmania:
what would have happened? The Governor-General would have
exercised his powers as commander in chief in the interests of
the people. It is the responsibility of the head of state, if
there be a new one, even as it is the responsibility of the
Governor-General now, to exercise his powers, to use the words of
the preamble, humbly relying on the blessing of Almighty God.
DEPUTY CHAIRMAN- We
have on the list Mr David Muir, but there has been a substitution
for Lady Bjelke-Petersen.
Lady FLORENCE BJELKE-PETERSEN-
I am really here by default, I must say, because I did suggest
that I was not going to speak, but then I thought that here was a
wonderful opportunity for me to say a few words on this very
important occasion. I really want to speak on whether Australia
should become a republic or not. That was my main ambition, but I
have been told I must keep now to the subject we have here, which
is: if there is to be a head of state, what should the powers of
the new head of state be and how should they be defined?
Personally, I do not believe
that we need a republic or a new type of head of state.
Nevertheless, I do want to have a few words about it. I believe
that at the present time we already do have an Australian head of
state. The Queen is the symbolic head, as far as I am concerned,
and the Governor-General is our constitutional head of state. The
Governor-General has the powers of the Crown, the Constitution,
the Westminster system and their practices. I believe that the
president, however chosen, if it ever gets to that stage where we
choose to have a president, could have very unrestricted power. I
had the privilege of being on the Witness program in
Sydney not so long ago and I was interviewed by Paul Barry. He
said to me, `You could probably become the president of
Australia.' I said, `That sounds a very interesting point of
view, but I believe that that would give me more powers than the
government of the day, more powers than the Prime Minister,
because I would be in charge of the army, the navy, the air force
and the Commonwealth Police.' Actually, Joh on one occasion was
asked what he thought about a republic. He said, `I think that
would be all right provided you made me the first president, and
you might have trouble dismissing me.' I think those of you who
know him might say that that would be right.
Nevertheless, they are
important questions. If the president's powers are to be such
that they will be less than those which the Governor-General
holds now, who is going to get the powers that he leaves behind?
That is an important question that I think our republican friends
want to be looking at too. If they go to the Prime Minister and
his cabinet, executive government, I do not believe the people of
Australia would be very pleased. The people of Australia keep on
saying that governments have too much power now. Of course, lots
of people are saying- even the man who drove me in the bus this
morning- that if a president were to be appointed he should be
elected by popular opinion. So you have two arms here: you have
the popular opinion people, there is Peter Beattie, who just
spoke before, and you have the people who believe that it should
be by two-thirds of the parliament. The two-thirds of the
parliament system would be fairly political; it would be very
political indeed. I was extremely interested to listen to Peter
Beattie talking about the Senate, codification and what the
Senate ought to do. I was in the Senate when Paul Keating as
Prime Minister said that the Senate was unrepresentative swill.
DELEGATES INTERJECTING-
That's right!
Lady FLORENCE
BJELKE-PETERSEN- It is not. It was a very fine institution
and I was very proud to be a senator for 12* years. I believe
this is a very important point: the republicans have to make sure
that the aim of the republic is not finally to get rid of the
Senate. I believe the Senate has very strong power, a power that
can consult about what the decisions of the House of
Representatives are. It is something that is very important as
far as Australia is concerned.
I am pleased just to be able
to say these few words here today. I certainly hope that we will
not be changing our system. I certainly hope that we will
continue to have a Governor-General, although I heard Mr Carr
himself say that we should keep the name `Governor-General'- I
think that is important- and the term `Commonwealth of
Australia'. I suppose that would certainly please everybody. But,
as far as I am concerned, I do not want to have a change at all.
I want to keep what we have now. I do not believe that a republic
can make Australia any more democratic than it is. I am very
happy to live in Australia.
As I look around the world, I
see what has happened to republics. I look at 97 per cent of
them. I would not want to go and live there. I do not say that
that would turn Australia into a republic like some of the 97 per
cent in the world, but you have to be careful. The main rule is
that if you get a president in you have got to be able to dismiss
them if necessary. I leave those thoughts with you. I certainly
do not intend to say what the powers of the new head of state
should be and how they should be defined because I do not want a
new type of head of state.
Mr MUIR- I cannot let this
moment pass, being the former Australian Vice-President of
Amnesty International, to reflect on how great it is that we
today are able to discuss the issues that we are today in this
great country of ours. Whether we are a republic or a monarchy
has no impact on whether we commit atrocities to our people. But
we believe that a republic is a change for the better for
Australia and it is a process of our development.
Powers are seen to be a key
issue in whether the head of state is elected by the people.
Certainly this has been the view propounded by the ARM. I would
urge that the ARM allow a conscience vote by their delegates here
in this assembly in relation to the kind of republic that we
have. I do not think that this is the place for party direction
in relation to such issues. I think that all delegates here
should be able to freely exercise their conscience when they
vote.
Another point I should make
in relation to the republic issue is that the Clem Jones team in
Queensland actually did out-poll the ARM in that state. I leave
that thought with you because I know the ARM have made it very
clear that they have the leading mandate in relation to the issue
of the republic. Perhaps we do things a little differently in
Queensland. In relation to the Clem Jones model that has been
circulated to this gathering, the model has been put up for
discussion. We are the only team that has actually put up a model
as such to this Convention. The key issue in that model for us is
the election of the head of state by the people. Clearly one
needs to focus on the powers in relation to that matter.
We recognise that when we
talk about powers we take into account the fact that there are
different perspectives in relation to power. There is the
perspective of the Prime Minister or any prime ministerial
aspirant. There is also the perspective of the Australian people.
One could concede that any Australian Prime Minister would want
the power to hire and fire. A Prime Minister would not want
somebody out there in the public forum who may in discussion
challenge issues of debate. We say that it is healthy for
democracy for that to occur and that the proper perspective in
relation to this issue is not the perspective of the Prime
Minister but the perspective of the Australian people.
We believe that the head of
state in a republic is the guardian of our Constitution. The
primary role is to be the guardian of our Constitution and to be
a fail-safe when our parliament fails to provide in a proper way
for the Australian people. We are talking in this instance of
safety and security for the Australian people. We accept that
there is a need for a full codification of the powers in order to
obtain that certainty. The present position is one of
uncertainty, and wide powers as a result of that uncertainty. We
do not accept the ARM position that the powers of a president
remain identical as they are written in the present Constitution.
Those powers are too wide. We can say that they are modified by a
convention, but the reality is that it is in black and white in
that document- certain powers such as veto over legislation.
It is appropriate that the
Prime Minister be the head of government and that the issue in
relation to any contest between head of state and head of
government can only occur where you have a head of government and
an executive president. I am not suggesting that we have an
executive president. I think that it is not beyond the
intellectual powers of Australians to devise a safe model for a
popularly elected president. I do not believe that our intellect
is any less adequate than the intellect of the Irish, the
Austrians, the Finns and the Icelanders. Those people have been
able to devise a safe form of government and a safe and
appropriate apportionment of powers between head of government
and head of state. The models vary from the Irish republic that
we have heard in discussion here this morning, where the head of
state in the Republic of Ireland has very little power, to the
strong model of Finland, where the popularly elected president in
that place has executive power. But in all those four countries
we have a popularly elected head of state and a Prime Minister,
and it works.
We are looking for a best
practice for the governance of Australia. We believe that the
people of Australia under present governance are shut out. We
believe that the best way of drawing the Australian people into
our process of government is to give them a direct voice. I refer
you, in relation to the codification aspect, to the Republic
Advisory Committee report. It has been referred to in some detail
today. It has been called the RAC report for short. There has
been a circulation of documents here today in relation to that. I
urge all delegates who have not closely perused the wording in
those documents to please do so. I think it is certainly a very
valiant attempt to codify power. It can be done.
In relation to the power
issue, it is important that the head of state has some power.
Clem Jones will be speaking to you later on this morning. He will
be able to say to you that he has met hundreds and hundreds of
people over the last few weeks who have gone to him and expressed
a dissatisfaction with the present governance of Australia. The
people want more direct say in government and they are concerned
about the control of parliament by the executive.
It is important that the head
of state have the power of referral of bills to the High Court.
Gareth Evans made reference to that earlier today, and this is a
matter of discussion that came out of Working Group 7. I am
hoping that the Convention will support the resolution in
relation to Working Group 7 in the sense that that leaves it open
for a popular election.
The powers of a head of state
would not relate to any reserve powers that were not properly set
out. There would be no power of veto over legislation, as
provided in the present Constitution under section 59. There
would be no unilateral taking charge of the defence forces and
there would be no unilateral action in relation to High Court
appointments. The powers would include powers of pardon, and of
commuting or omitting punishments in relation to Commonwealth
jurisdiction; the power to address the Australian people after
consultation with the executive council; the ability to refer
bills to the High Court so that the Australian people could be
protected in advance of any unconstitutionality; and the codified
powers referred to in the RAC report.
I urge delegates not to be
afraid to be innovative. Our original Constitution, as drafted by
Sir Samuel Griffith and other fathers of Federation, was pure
innovation. Please accept the challenge laid down by our
predecessors to grasp the nettle for worthwhile change. Do not
let any change be mere window-dressing. Symbolism is important to
the Australian community, but the Australian people deserve more.
Do not be afraid to accept the challenge. Do not be afraid to put
your faith in the Australian people. Do not deny them the choice
of electing their president. Thank you.
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