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 9

CHAIRMAN- Thank you, Mr Muir. I now call on Mr Malcolm Turnbull to address the gathering, followed by Clem Jones.

Mr TURNBULL- Thank you, Mr Chairman. We are dealing now with the issue of the powers of the new head of state. For the purpose of these remarks I will assume we are dealing with a non-executive head of state or a non-executive president- I am not closing off the option, from our point of view, of supporting a different name, but I will use that for the time being- who would have the same powers or less than the Governor-General.

Mr Clem Jones has proposed a directly elected model that would give the president additional powers. We believe that is not a good option. We feel that a directly elected president should either have no powers- for example, as in Ireland- or be the chief executive of the nation, as in the case of the United States. We think the French arrangement, where executive power is shared in a very confused fashion between the President and the Prime Minister, is the worst of all options. So I would say that we either go to Dublin for a directly elected president or we go to Washington; the Paris option, for the reasons advanced by Mr Carr, is not on.

What that leads us to is: how do we express the powers? What do we say about them? This is a very important issue because I think almost all of us would agree that it would not be satisfactory to have an uncodified set of powers- that is, to leave the powers to the constitutional conventions- if the head of state were to be appointed by a direct election methodology. That is clearly an important option that is being canvassed here today, and that is why codification is very relevant. The ARM has always been an advocate of codification, not simply because of the lawyers' love of writing things down, as Professor Craven referred to earlier, but because we believe it is important that our Constitution provide a more meaningful description of the way our country is governed.

Is it an outrage to have a clause in the Constitution which says, `Following a general election, the head of state shall appoint as Prime Minister the person whom he or she believes most likely to be able to form a government which will have the confidence of the House of Representatives'? Does anybody doubt that that is the convention? Does anybody doubt that that is what our constitutional practice is? At the very least, how can we resist putting in the Constitution, as has been done in the RAC partial codification model, those very basic principles which are beyond controversy? At least it would make the Constitution a more meaningful document.

Turning to the partial codification model, I would like to draw your attention to item 4, which deals with the dismissal of the Prime Minister for a constitutional or legal contravention. At the moment there is an undoubted power invested in the Governor-General and, indeed, state governors to dismiss a Prime Minister or Premier for a serious breach of the law. When I say it is an undoubted power, I mean that everyone agrees it exists; but there is absolutely no agreement as to the circumstances in which it should be exercised. There is no agreement whatsoever, and I think it very unlikely that there would be. We have had cases, as we had here in 1975 and other cases, where governors and governors-general have taken legal advice either from judges in private, which is very unsatisfactory, or from members of the private legal profession.

We have proposed in the RAC report, in the partial codification model, a mechanism for the head of state to refer an issue of government legality to the High Court to get a ruling. If the Prime Minister persisted in the breach of the law, then and only then would the head of state be able to take action. We feel that would be an improvement, but I have to say to you very plainly that that is a substantive change from the current practice. If you were looking at the partial codification model from a minimalist point of view- and I know that is an overworked expression- then you would not include article 4.

Turning to the way in which the conventions continue in the partial codification model, as George Winterton said this morning, you define the rules that are beyond any doubt and then you say, `In so far as we haven't dealt with the exercise of the reserve powers by the stated non-controversial rules, the conventions continue.' So the partial codification model would have the virtue of improving the comprehensibility and meaning of the Constitution by stating the non-controversial, non-contentious principles of our system of government and also by preserving the flexibility of the conventions for all of the reasons that have been advanced by the advocates of that.

Complete codification, for which there is also a model in the RAC report, endeavours to anticipate every circumstance in which the head of state would have the need to appoint or dismiss a Prime Minister and anticipates every circumstance in which he or she would be called upon to grant or not grant a dissolution of parliament. I think it is common ground that those are the only areas in which the reserve powers apply. Again I should state that, with respect to 1975, the complete codification model in the RAC report does not expressly address the position of the Senate. That, as I said yesterday, is a fact of our constitutional life and it makes Australia a very different parliamentary democracy to Ireland, Austria or many of these other countries that have directly elected presidents.

The way in which the complete codification model in the RAC report would affect 1975 is this: because the head of state can only dismiss the Prime Minister when the Prime Minister has breached the law, has been found by the High Court to be breaching the law and has said, `I'm going to keep breaching it,' the head of state would only have the ability to sack a Prime Minister who was trying to spend money which had not been lawfully appropriated pursuant to section 83 of the Constitution and who was persisting in it. It is a pretty extreme, far-fetched case, but that would be the state of affairs. It would mean, in applying it to 1975, that Sir John Kerr would not have been able to ambush Mr Whitlam. He would have had to wait until such time as Mr Whitlam had run out of money- and I have no doubt that some time before then Mr Whitlam would have bitten the bullet and called an election rather than persist.

Mr CARR- Fraser would have backed off.

Mr TURNBULL- Indeed, that may have been the case- Fraser may have backed off.

Mr GARETH EVANS- You are still confirming the Senate's powers.

Mr TURNBULL- Yes, I will just go on. The defect of the complete codification model- and I was coming to that, Mr Evans- from the point of view of the Labor Party and people who are concerned about the Senate's power is very simply this: the disincentive to the Senate exercising its power at the moment is that it creates an unholy constitutional mess, a crisis. Nobody knows what the rules are. That is a great consternation in the Commonwealth of Australia; that is a disincentive.

The concern that has been expressed to me by many people, including many eminent members of the Labor Party, such as Mr Evans, is that if the complete codification model were adopted it would be in a sense legitimising, and at least facilitating, the Senate's power. But the problem is that you cannot have a directly elected head of state without either removing the Senate's power, which is an option I will come to in a moment, or facilitating it. The one thing you cannot do is leave the capacity to create a crisis, which requires a constitutional umpire, and have somebody who is most likely going to be a political partisan being called upon to play the umpire's role.

The other solution to this, and it is a very simple solution- simple of conception, difficult of execution- is removing the Senate's powers altogether.

Mr WRAN- Whether to block supply.

Mr TURNBULL- Thank you. Whether you regard that as desirable, it is plain to everybody that it is unachievable.

Mr RAMSAY- Why?

Mr TURNBULL- It is unachievable because a large part of the political community will strenuously oppose it. But it is certainly a matter that is going to be brought up. I hope that has been of assistance to delegates in respect of the powers. I would, as Mr Muir said, commend the delegates to the chapter on the powers of the head of state in the RAC report and to those two models. I hope that, as we discuss codification and its value, focus will be given to the particular provisions of those codes because, as the archbishop said yesterday, the devil is invariably in the detail but there may also be a few angels as well.

Mr CLEM JONES- Mr Chairman, members of the various houses of parliament here today and delegates, I make reference to the members of the houses of parliament very specifically because, in the context of what we have been proposing in respect of the changes to the Constitution- the road to the republic, the codification that has been discussed at great length here, the powers and so on- the status of parliament is extremely important. Its status, and particularly its status in the eyes of the community, is extremely important.

Unfortunately, I do not know that those who represent us- those for whom we should have the utmost respect because they are doing the most important job there is in our society- realise just how low the esteem of parliament has descended. The attitude of the general public towards our members of parliament is really deplorable. We can argue as to why that is, but I want to suggest that perhaps in the change to a republic and the election of somebody the whole of Australia respects- provided he is given a significant role- you will have a great impact on Australia's respect for the political system and those who operate it, our members of parliament.

Earlier today, Mr Phil Cleary was very kind in making some remarks about me. I would like to say that he exaggerated a lot. But the important thing is that the reason I am here is not for what I or my colleagues believe. We are here because we set out to canvass the views of the community at large. The group that we established was a group that covered the whole of the state of Queensland, a group that predominantly comprised people with experience in local government. We had a past mayor, a present mayor, me, Ann Bunnell, who is one of our delegates here and deputy mayor of Townsville, and we had the mayor of Emerald. In fact, we had people from all over the state with different political views, and we charged them and ourselves with the responsibility of finding out what the people of Australia want in a republic.

Out of that came our model. That model does not necessarily reflect all my views or all the views of David Muir or Ann Bunnell, but it is what we in our experience came to believe was the wish of the people of Australia. It was said earlier, I think by the Premier of South Australia, that we have to seek perfection. Surely, in this context perfection is providing a system of government which is the nearest as possible to what the people of Australia want. That is the goal of perfection.

When we set out to detail this model, we were, as I said, entirely guided by what we understood was the view and attitude of the people of Australia. The most important thing that we found was the criticism I mentioned earlier- and it is a criticism I do not share- that the problem with Australia is the people who represent us. It was said earlier here that we have a two-party system of government which has served this nation well, and there is no doubt about it. It should continue. But unless we come up with something which is going to restore the prestige of parliament in the eyes of the Australian community that two-party system is doomed. We are already seeing that in the voting trends throughout this country.

If you look at the voting trends in the last election in Queensland, and then look at the vote that the Clem Jones group got and where we got it from, I believe those of you who are members of parliament will be concerned. It reflected the fact of an increasing number of votes in the areas where there had been dissatisfaction and where people voted for an independent group, which we were.

I could go on at length about this, and I could also talk about codification and so on, but I do not think that is necessary. We have heard from people talking about codification- partial codification, full codification and so on. As far as I am concerned, I think all of those are red herrings. We are not concerned with the powers that exist in other places- in Ireland, Austria or wherever. If there are any good requirements in those particular constitutions which we can adopt, so be it- we will adopt them. I believe codification is absolutely necessary. As Peter Beattie said, it is absolutely essential- we have to know, we have to have certainty. But the important thing is that the codification has to suit our needs. And when we say `our needs' what we really mean are the needs and wishes of the Australian community.

We mentioned that we have a motion to include in the powers of the president a right to refer any legislation to the High Court for advice on its constitutionality. That is something that applies in this situation and that we accept perhaps as a one-off in respect of the president's powers. But that is the important point. When we decide in the long term, the codification should fit the particular needs of the Constitution, which is not being changed, and the Constitution as we propose to change it.

As I said, you could go on talking a lot about these things or you could go on talking about codification, but I do not at this time want to discuss that. I will, I hope, later on. I want to emphasise the thing that I started to say: while the parliament must remain supreme, we must have somebody to make the people's contribution to government. We must have somebody in a responsible position with responsibilities that the people will accept and that the people want.

We do not need to fear someone because we give him a place in our structure. Our Constitution has protected us in that respect for 100 years. A new Constitution providing for the codification that we are talking about, providing for the method of election that we are talking about, providing for the model that we are talking about, can and will undoubtedly maintain that protection and obviate the suggested conflict that there would be between a president and a Prime Minister. We must seek to provide what the people want. That is my message at this moment, and that is my only message. We must seek to provide what the people want- not what we want, not something which we think protects ourselves at whatever particular level of government we may be in, not what protects ourselves as delegates here and having regard for what we may do in our respective lives. We want to make sure that what we do here serves the people of this country in the way they wish to be served and preserves the opportunity for some change that will come undoubtedly in this world of change but will have that one underlying theme: the people of Australia must come first in everything we do.

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Last updated: 21 October 2000