The Foundation for National Renewal   The Constitutional Convention of February 1998

Federal Election October 2004: Which Candidates Trust the People?

TRANSCRIPT OF PROCEEDINGS
Wednesday, 4 February 1998
Page 13

Ms PANOPOULOS- Mr Chairman, I raise a point of order. Dr Teague, you spoke of Australians wanting-

CHAIRMAN- Is this a point of order?

Ms PANOPOULOS- No, it is a point of clarification.

CHAIRMAN- That does not really constitute a basis for intervention, I am afraid.

Ms PANOPOULOS- No. He mentioned that the Australian people were looking for an improvement.

CHAIRMAN- You can make a personal explanation if you wish. You cannot have a personal point of explanation or whatever you are after.

Ms PANOPOULOS- No. I would like to ask Dr Teague what sort of improvement he is offering.

CHAIRMAN- I am afraid that is an interesting point of order.

Ms PANOPOULOS- Where is it? We have been asking for it for years. There is no improvement. What are your improvements, Dr Teague? Go on, tell us. Put them on the table, Dr Teague. You have no improvements.

CHAIRMAN- Thank you very much. We have heard you. I deny you the further call. Will you please resume your seat. I now call on Professor Greg Craven as the last speaker on the issues for today.

Professor CRAVEN- The one thing that has emerged so far at this Convention is that there will be no successful outcome unless there is successful consensus. Unless there is strong consensus in this Convention any proposal at referendum will fail. The truth is that those people who will ensure that it fails, the greatest opponents of the proposal, will be sitting in this chamber as I speak. So it is the case that there must be consensus here or there will be no consensus elsewhere.

No-one in this Convention is going to get all that they want. I wish to reiterate what I said this morning when giving the working party report that it is my belief that the McGarvie model presents the greatest chance of consensus for simple and clear reasons. It delivers a republic, so republicans can, so far, agree with it. It is minimal and safe, so it appeals to those who are undecided. For that reason, those monarchists who are considering their position may be persuaded to support it.

It is, in short, the closest thing to common ground. It impresses me that considerable sacrifices have been made for it to get there. I was extremely impressed by the actions of people like Mr Abbott who was prepared, in the spirit of compromise- and compromise is not a dirty word here for, as our founding fathers said, compromise was the watchword of the great conventions- to try to produce a solution. I believe that that is the spirit in which we should proceed. It is not surprising that the McGarvie model represents compromise, represents an attempt at stability, because it retains the strengths of our present democracy.

Ms PANOPOULOS- Wrong!

Professor CRAVEN- With great respect to my former student, Ms Panopoulos, I do not believe that I have heard any arguments that suggest to the contrary.

It seems to me that it is absolutely necessary that the proposal we come up with succeed at referendum. It must succeed at referendum, and it must be strongly supported for that purpose. I accept, I may say with no strong enthusiasm, that the people want a republic. I accept it for the simple reason that it is true. I believe absolutely that Mr Court was right when he said that we are going to need, as part of our constitutional mechanism, the consent of all the states. You are going to have to aim to win every state. This is a big ask and it takes a big compromise.

Turning to the other models, in relation to the two-thirds majority of parliament option, let me say that I accept, with Dr Baden Teague, that that is the other option. There is no question of that. I have two worries with that model. One is that it assumes bipartisanship on the part of the Prime Minister and the Leader of the Opposition. I have little doubt that in this parliament in Canberra that might well follow. It does not necessarily follow in every parliament, the proceedings of which I have followed. What happens if there is disagreement? What is the mechanism if opposition and government cannot agree? I will need to be persuaded on that point.

The second point that I worry about is what happens when you have the parliamentary election and you have five or six or seven or eight or four candidates. Is there a demolition of reputations? This worries me. On the other hand, I accept that unless one accepts the McGarvie model, that is the only plausible model that I can see, with those imperfections, as I have explained.

In relation to dismissal by the Prime Minister, sanctioned by the House of Representatives, this is, in the spirit of compromise, a move towards the McGarvie model. It is a move towards common ground, and I acknowledge the generosity of spirit in which it has been given. It is, like in the McGarvie model, effectively dismissal by the Prime Minister. Mysticism notwithstanding, that is our present system.

I see two relatively small problems with it. One is the lack of delay that would occur between the Prime Minister initiating action and that action occurring. It is a feature of the present system which makes the Prime Minister think, because he can garrotte the Governor-General but not shoot the Governor-General immediately. And it worries me that there is a lack of advice and counsel under this model. There is not the embarrassing possibility of the Queen telling the Prime Minister that he or she really should not dismiss the Governor-General because he does not like the Governor-General's face.

That said, however, I think we have arrived at a crucial point in this Convention. It seems to me that on this one basic point- how we are to appoint and dismiss the head of state- there are three possibilities that might produce a consensus. One is the model I favour, what has been called the McGarvie model: appointment by a council, dismissal by a council. The second is the ARM model: appointment by two-thirds of parliament, dismissal by the Prime Minister. But everybody who has followed this must be aware there is a third, unstated possibility, and that is a hybrid model, where we see appointment by two-thirds of parliament but removal under the McGarvie model by a council acting on the advice of the Prime Minister.

This is not something that I have proposed. I concede, however, that it has the perceived advantage as follows. Some people- I believe wrongly- think that the McGarvie model lacks a popular element. I have explained that the popular element is the Prime Minister. But, accepting that for the moment, the popular element is a problem at the appointment end. If one accepts the possibility of appointment by two-thirds of parliament but also dismissal according to the McGarvie model, then that achieves the one great contribution that the McGarvie model has made the central contribution to this Convention: maintenance of the conventions of our parliamentary Constitution through the facilitative dismissal of the head of state.

I prefer the McGarvie model. I believe that it is cogent and that it is consistent, but I also accept that it may not command the support of a majority of delegates. I appeal to all delegates to accept the McGarvie model as the best model. But, failing that, and I suspect it may well be failing that, I urge you to support a hybrid. I urge you to support a model that will command consensus- appointment by two-thirds of a joint sitting of parliament but effective, prompt, parliamentarily supported dismissal by the Prime Minister. I feel it is absolutely important that we all understand the consequences of failure in this respect.

There seems to be a view abroad that if this Convention fails and if an ensuing referendum fails then the monarchy will go on to another glorious thousand years- and I accept that it has been a glorious thousand years. Regrettably, the second part of the proposition is not true. As a result of this debate, we have a constitution, rightly or wrongly, that has been significantly destabilised. We have a generation of young people who not only believe that they do not like the mechanism for the appointment of our head of state but believe, paradoxically, that we have a bad constitution when it is the best in the world.

Five more years of disastrous debate over the republic- which is what will happen- followed quite possibly by the Australian people who almost certainly want a republic accepting a bad republic because it is five years late will be catastrophic. To my friends among the ACM- and I have many friends on the ACM because I agree with them on a great many things, as they know- I say: we cannot afford a catastrophe. There are only two non-catastrophes here. One is McGarvie; one is the hybrid model. I would prefer the one, but if one cannot get the one then one needs/must get the second.

CHAIRMAN- As I indicated earlier in the proceedings, we will adjourn the debate on the issues at this point. It will be resumed tomorrow morning. At the moment we have only 15 more speakers on the issues of today and, unless there are significantly increased numbers who register their names with the secretariat by 5 o'clock, I would propose that we commence tomorrow's proceedings with another hour of general debate. But an announcement on that will be made later in the day. It would be the intention this afternoon, as I announced this morning, that having resumed the general debate in a few minutes time we proceed right through without interruption from 3 o'clock through to 7.30 p.m. The Resolutions Committee has requested a brief opportunity to present an interim report on their deliberations over lunchtime. I call on Mr Gareth Evans, one of the co-rapporteurs of that Resolutions Committee, to report to the Convention.

Mr GARETH EVANS- Thanks, Chairman and delegates. The Resolutions Committee met at lunchtime and appointed Daryl Williams and I as co-rapporteurs. Present and former Attorneys-General, I think, was the rationale, although that is sometimes a status I prefer to forget so far as I myself am concerned. We propose to share the load of reporting between us. I will give this short report today. Daryl will move a resolution tomorrow embodying some of the key procedural things to emerge from that. That resolution tomorrow will be the subject of debate. As I understand it, this report today is simply for information.

The decisions that were made today by the Resolutions Committee fell into three categories: firstly, the process for debate- today and Monday, Tuesday and Wednesday of next week- secondly, the role of the Resolutions Committee and what kind of propositions are going to emerge from us; and, thirdly, the nature and timing of the final debate next week.

The matters arising from that, which I will quickly go through now, were all resolved unanimously by the Resolutions Committee. I think it is important for me to emphasise that, because the Resolutions Committee really does seem to represent all shades of opinion within the Convention, consisting as it does of Stella Axarlis, Julie Bishop, me, Kerry Jones, Wendy Machin, Pat O'Shane, George Pell, Moira Rayner, Jeff Shaw, Malcolm Turnbull, Lloyd Waddy and Daryl Williams, under the chairmanship of Barry Jones.

As to the process for debate, the Resolutions Committee has recommended to the Chairman, and it is a matter for their final decision, that if possible the debate to take place tomorrow afternoon, Thursday- and the ones that are presently scheduled for Monday, Tuesday and Wednesday next week on specific topics- take the form of discussion plus voting, discussion plus voting, discussion plus voting, in a sequential fashion rather than, as we did yesterday- to the dissatisfaction of a lot of delegates- having generalised discussion with everything tumbling together and then trying to separate it at the voting stage. There does need to be consultation between the Chairman and some of the people who may find difficulty in being here for as long a period as would be necessary to do that. But that is the recommendation. Secondly, I think it will be of acute interest to most delegates that it has been agreed to recommend to you- and this will be a resolution tomorrow- that all resolutions should go forward to the Resolutions Committee if there is 25 per cent or more support for them coming from the floor, rather than the requirement that we have been working on in an informal way so far of a 51 per cent threshold having to be satisfied. It is intended that that should apply retrospectively.

There are two matters that were the subject of debate yesterday. When there was not an actual account taken, it will be left to the Chairman to determine whether that threshold was roughly satisfied. As to the role the Resolutions Committee will play, it is our task, as we see it, to draft for consideration next week a series of resolutions in a form which will enable delegates next week to vote systematically and comprehensively on all the issues before the Convention which have attracted significant support during the debate. Significant support will again be measured by reference roughly to that criterion of 25 per cent.

It is further the intention of the Resolutions Committee to take into account in the process of drafting those resolutions not only material that has come forward to us formally satisfying that 25 per cent threshold as a result of voting in this chamber but also other material that is supplied to the committee by delegates- that is to say, formal proposals for amendment to particular matters that have been before us- and also further propositions that may have arisen out of discussions that are continuing to take place. It is obviously not sensible to require a formal process before anything can go to the Resolutions Committee if there is genuine movement occurring in corridor discussions and so on. So we will take that into account.

It is proposed- and I will not go into any detail on this- that the resolutions that are drafted by the Resolutions Committee are constructed in such a way as they ring the changes on all the key issues that have to be debated. Our present thinking, in a nutshell, is this: we will divide up the resolutions into three categories, starting by reference to the mode of election or appointment. So there will be a single resolution with a group of sub-components to it, first of all on the direct election model with its various possible ways of getting there and then, associated with that, a series of propositions ranging from maximal change to minimal change as to the kinds of powers that should be associated with a head of state thus determined. Then we will move on to draft resolutions about a parliamentary election process and the different models that have been proposed for that- two-thirds and so on- again with a set of propositions associated with that about the kinds of powers that could be exercised by a head of state appointed in that way and, finally, the prime ministerial/constitutional council Dick McGarvie model, variations on that theme, and then the powers associated with that.

The intention is to draft these propositions in a way that is reflective of all the material that is before us from the Convention but which is also systematically and clearly enough drafted to enable everyone to come to grips with it and to vote accordingly. Of course, it will be possible for amendments to be moved from the floor if the Resolutions Committee gets it wrong in its drafting of this material, it is not comprehensive and does not cover all the nuances that people want covered. Of course, there will be an opportunity to respond to that from the floor.

Finally, as to the nature and timing of the final debate next week, consideration is being given- and I put it no higher than that at this stage; we wanted to mention it to you so we could get a response from you- to having not a one-stage process next week but a two-stage process towards the end of next week to finally determine the Convention's position on the key issues, in particular, the issue of whether or not there is a preferred model coming forward. Under this approach, stage 1 would involve us dealing with exactly that series of resolutions I have just referred to, with the debate on that possibly commencing as early as Wednesday afternoon and running right through Thursday to enable full opportunity to be given to full debate on that. It is intended that the draft resolutions that I am talking about be circulated- if we stick to that timing- no later than early on Wednesday morning to give delegates full time to prepare themselves for that.

I say stage 1 and a possible stage 2 because, of course, it may be the case that, arising out of that detailed debate, there is still at the end of the process some uncertainty, some ambiguity, as to whether or not there is a single model, for example, that does command a substantial consensus degree of support. It may be, because of the way the earlier debate will conduct itself, that there could be two or more models, for example, which have more or less equal support. If it is a matter then for the Prime Minister to have to determine whether there is consensus about a particular model, his task may be very difficult unless he has some further guidance from the Convention as to whether, when push comes to shove, this model is to be preferred to that one. So we want to think about the possibility of a kind of run-off ballot, a stage 2 process, some sort of exhaustive process. We would like to hear from delegates their views about the sense in doing that and, if so, the particular way in which that might best be done.

That is where we are at at the moment. The intention is for the Resolutions Committee to meet again at lunchtime tomorrow to formalise some of this stuff into resolution format which will be debated early tomorrow afternoon, certainly before we move to debate on the next stage of the provisional voting arrangements.

CHAIRMAN- The normal course would be for us to consider procedural matters first thing tomorrow morning, if you could be ready by then.

Mr GARETH EVANS- We would like a little more time than that. The crucial thing- and I will defer to my co-rapporteur on this- is that the Convention have guidance on all this before we move to the next stage of voting. That is not intended to be in tomorrow afternoon. Frankly, we would welcome a bit more time to get feedback from you on these procedural issues. If we could have the opportunity to have the morning and a lunchtime session again tomorrow, I think we would appreciate it.

CHAIRMAN- We can do that at lunchtime.

Mr RUXTON- I have a question, Mr Chairman. I must preface my remarks by saying I am always suspicious of former lecturers in law. Having said that, I have been listening to Gareth. To me, because I am simple man, I suppose, what he has been saying is about as clear as the water of the Yarra River in flood. But I ask one question. I did hear that if a resolution gains only 25 per cent of the vote of this chamber it will still go forward to the Resolutions Committee. I think I heard that. I presume then that proposition 6, on which Mr Evans got rolled yesterday afternoon, would then go through to the Resolutions Committee because there was a 25 per cent support of that motion. Is that right?

CHAIRMAN- You will consider the motion tomorrow, Mr Ruxton. At the moment we are having a preliminary report. Could I suggest that we look at the remarks made by Mr Evans, and we will be able to consider it at leisure tomorrow instead of considering it on a proposition which is only giving us advanced warning of motions that will be submitted tomorrow.

Mr GARETH EVANS- I do not want to dob him in, but Lloyd Waddy and Kerry Jones- and I do not want to dob her in- thought it was a pretty good idea.

Mr RUXTON- Any motion with 25 per cent support should be out the window forever. That is the way I see it.

CHAIRMAN- Thank you, Mr Ruxton. Mr Hayden.

Previous Page
Next Page

·=============== ===============·

Last updated: 21 October 2000