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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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