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 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.

Previous Page
Next Page

·=============== ===============·

Last updated: 21 October 2000