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 14

Mr HAYDEN- I would like to ask a question about the formulation of this draft resolution that you are proposing to bring in. But first, can I congratulate you on your very successful negotiating skills. Can I advise Mrs Jones and Mr Waddy that perhaps they need more wiliness when they are dealing with you in future. I think it was Paul Keating who observed once that a souffle does not rise twice. You have proved him once wrong once again.

I have no problems about these issues coming back, if people really feel they would like to re-explore them. Given the important nature of this Convention, I am happy to support that. Of course, as people would recognise, there is backroom horse-trading going on in a way that is not foreign to the experience of many of us who are here. It often works out that we get a better result, I guess. I hope that is true this time.

Gareth, what worries me this time- not necessarily worries me- is that I do not have a clear perception of how that draft conglomerate resolution is going to come forward. For instance, all those items- 7 and 8, I think- which were before us yesterday from the various working groups, are very long and in many cases contain quite contradictory propositions. Of course, seven was rejected yesterday because of the ironclad approach which was seen in respect of reserve powers.

How would you propose to construct this sort of hybrid thing so we can delete what we do not want? For instance, George Winterton proposes that there be partial codification, which appeals to me. You propose total codification. You cannot draft this as a conglomerate, as it were, resolution of `This is what we suggest you take; it is the best of everything.' We know that the 25 per cent that did not get up yesterday will get the 75 per cent of the resolution. What we need is something that will identify different constituent parts of various resolutions and what the alternatives are. Could you tell me how you are going to present it?

Mr GARETH EVANS- It is proposed to do exactly that- to draft the resolution set of resolutions in each case in such a way as to make it very easy for delegates to work their way through the logical alternatives. The idea is to start with the maximum change models for appointment, working through to the minimal change models, and then, within each of those categories, to start in terms of subset propositions with the maximum change proposals as to powers and so on through to the minimal change. How best to actually lay that out- whether you have a parent resolution and a series of identified amendments to it which could then be debated and passed upon sequentially, or whether rather you do it as a tick a box exercise- is something that the rapporteurs will work through.

The intention is for Daryl and I, together with the secretariat, to have a go in the first instance of drafting this in a way which meets the concerns of all delegates. Then it will go to the full Resolutions Committee, which is broadly representative with a lot of the eagle eyes on it, to make sure that the major themes are all there. Then it will come on to the floor with a further opportunity for amendment if people are dissatisfied that we have got it wrong. Hopefully, it will be clear. It is not just a matter of throwing into some sort of washing machine all the stuff we have done so far; it is a matter of rethinking what the essence of these various proposals are and laying it out in a way that everybody has an opportunity to systematically debate upon them.

CHAIRMAN- Can I suggest that we should have a fairly full debate on this tomorrow. I think we are all a little bit bemused by the nature and character of the recommendations. I have not seen anything in writing, nor has anybody else. Mr Hayden has the call, and I will let him respond in a moment to Mr Evans, but I think we will then adjourn the debate, proceed to the general debate and we will consider the report when it is submitted to us. Would you be available by about 12 o'clock tomorrow? Could you have that report by then?

Mr GARETH EVANS- We won't have had an opportunity to have another meeting of the committee.

CHAIRMAN- I think you better meet before then because if we do not we are going to move into a process tomorrow afternoon that will make it very difficult. I think we should set aside 12 o'clock tomorrow for a report from the Resolutions Committee and arrange a prior meeting of the Resolutions Committee so that the Convention has before it whatever the recommendations are.

Mr HAYDEN- When we get to the stage, if it is accepted by the Convention, of considering these sorts of comprehensive patched up resolutions, I sincerely trust we are going to have an overnight opportunity to consider them. These are very vital issues and they can affect the destiny of this country in lots of ways if they were to be adopted, adopted in spite of being defective because we have not had a chance to consider them. Some groups will want to caucus to work out their position. I am in a very happy position that I have the best caucus. Graham Richardson said that a caucus of one is the best you can ever get. So I do not need as much time. But I hope, Mr Chairman, you will make sure we have plenty of time and not have the things turn up in the morning and go into debate a little later.

CHAIRMAN- It will be my intention to receive the report at 12 o'clock in writing. We will then at least adjourn until later in the day. We have an arrangement that there are to be votes only from a certain hour of the day. Given the nature and the consequence of this vote, it would be wrong for us at the very least to have a vote before the afternoon. It could be that we defer it until the following day, as you suggest. Mr Waddy, do you really need the call? Can't you leave it until tomorrow?

Mr WADDY- I hope to make a personal explanation. I have not had the wool dragged over my eyes. The committee was unanimous that nothing should be precluded from the members here, the status quo or any of the models, by provisional motions which may have had consequences which were not foreseen by some who could not even see the amendments. The Resolutions Committee is purely the handmaid of the Convention and the principles that we espoused were to put into rational resolutions everything of which there should be decision. No delegate should feel affronted by what is suggested. Whether they adopt it or not is a matter for the Convention.

CHAIRMAN- Thank you, Mr Waddy. At 12 noon tomorrow we will expect a report from the Resolutions Committee. At that stage I hope we can proceed with debate. Do you really need to speak now, Mr McGarvie?

Mr McGARVIE- Just to ask a question: those who are on the speakers list for tomorrow would naturally prefer to speak to a particular resolution. Will they be given a choice as to which resolution they speak to?

CHAIRMAN- When we start proceedings again in a moment we will be dealing with addresses to the general question. When we resume tomorrow morning, given the time it looks as though we will need to spend on the procedural debate, I suspect we should return to the issues first thing tomorrow morning, which will be the issues of the six working group reports we will be dealing with today. We will start tomorrow morning's proceedings on a continuation of the issues debate which we adjourned a quarter of an hour ago.

Professor PATRICK O'BRIEN- It is very difficult to hear at the back of the hall here what people are saying because I do not think the acoustics are all that good. It really is very confusing. With great respect, I ask both yourself and Mr Jones to articulate your words with clearer diction because you tend to mumble a lot. It is not a personal criticism; we just do not hear.

CHAIRMAN- It has been said.

Professor PATRICK O'BRIEN- I am quite serious. That is one of the causes of confusion. I really did not hear what the previous speaker said because of the acoustics. That is causing a lot of the confusion. I think we must all try to do it that way.

I support what Mr Waddy said, if I heard it correctly. On this question of the method of appointing or election, I accept to a degree what Dr Baden Teague said. However, I agree with the point that four major strands of approach have clearly emerged in this Convention on nearly every issue. Those four models are the so-called McGarvie one, the ARM one, the ACM one and the general Elect the President proposition. They are four clear positions. I think as a matter of principle that those four general areas should all go to the Resolutions Committee. If that happens, it will save us a hell of a lot of time tomorrow. They should all go. We can then come back and have a debate. That gives more time for the general speakers. I think it is the sensible thing to do. I do not know whether that is in order. It is a recommendation. That means that, on the particular issue, I would be the first speaker tomorrow morning. Is that right? I want to know what time to get here.

CHAIRMAN- I will have to look. I do not have the issues list. I do not know that you were next on the list. The order of speakers, as I have it, tomorrow morning is that Mr Alistair Webster will be the first speaker.

Professor PATRICK O'BRIEN- On my list, I come after-

CHAIRMAN- Mr Alistair Webster dropped off. He came to see me. He arrived in the House, but he was not here. I called Professor Greg Craven. I said that Mr Alistair Webster would be the first speaker tomorrow morning. He will be followed by Mr Kevin Andrews and then you.

Professor PATRICK O'BRIEN- Fine.

CHAIRMAN- I will elucidate where we are. Tomorrow morning, time is set aside for a continuation of debate on the issue of the arrangements for the appointment and dismissal of a new head of state, if there is one. When we open tomorrow morning, after any procedural matters on which I need to report, we will continue with the debate on the issues that we have been debating today, the debate being adjourned at about 3.10 p.m. When we reach 12 noon, there will be a report given by Mr Darryl Williams, the federal Attorney-General, from the Resolutions Committee. That report will set out, both verbally and in writing, the recommendations with respect to the future conduct of proceedings, the order of resolutions, the manner in which each of the issues will be considered and the way in which thereafter we should deliberate upon them.

It would be my intention not then to take a vote but, subject to the recommendation of the Resolutions Committee, either to defer the vote until later that day when we have our normal voting procedure or to defer the vote until the following day, subject to the recommendations and what they contain and the mood of the Convention at the time.

Mr WILCOX- I raised a matter yesterday and said that there was some confusion. The Deputy Chairman gave what I thought was a ruling. He said that yesterday's debate in relation to the resolutions is not a final position and that it is possible for you to vote for two, three or four or however many you like. Those that receive a majority of votes will go to the next stage. Later, he said, `What we are really deciding today is whether, of the seven points on powers, all seven go to the next stage or some of them die.' I believe that the interpretation of that was as he said. I know that one resolution was substantially lost yesterday. I hope that that is not still a matter to be considered by the Resolutions Committee, because they are only going over the same ground.

I concluded my thanks to the Deputy Chairman for his ruling yesterday, his interpretation, and I concluded by saying it has helped me, because at least we know that if some of the proposals from the working groups do not pass- and that was so yesterday- then it will save the Resolutions Committee quite a lot of work.

CHAIRMAN- Thank you, Mr Wilcox. The recommendations, as I understand them as now presented by Mr Evans, are related to some variation of that ruling. That will be a matter that we cannot judge upon until we know what those recommendations are. Those recommendations will come before us tomorrow. If that ruling is to be varied, then it will certainly be a matter for the Convention to decide. Until such stage as the Convention has otherwise decided, that ruling remains in place. You have already had one speech, Mr Ruxton. Do we really have to? We have lost half an hour.

Mr RUXTON- I believe that a fair amount of snake oil is going around at present. There was a ruling yesterday; now it has been overruled.

CHAIRMAN- It has not been overruled. There has been no overruling of anything. I explained to you that the ruling given yesterday will prevail until it is reversed by a decision of the Convention. It will not be reversed by a resolution of the Convention until it is put. It will not be put until we have received a report from the Resolutions Committee. That will occur at 12 noon tomorrow.

We will now proceed to consider the addresses. Before I call on Mr Tim Fischer, the Deputy Prime Minister, to open the debate on the general question of whether Australia should become a republic, I point out that a number of names on this speakers' list appear to me to be people who are holding proxies for some who have already spoken. Those people who are here holding a proxy cannot exercise the same right that the person for whom they are holding a proxy has already exercised. If you are holding a proxy for somebody, I am afraid you cannot have a second go. The Hon. Tim Fischer, Deputy Prime Minister.

Mr TIM FISCHER- Thank you, Mr Chairman and delegates. Looking at the deliberation of the last few minutes, of course this is democracy at work. The matters will come back before the Convention tomorrow in a procedural sense after noon. The one additional thought I have is that at the end of the whole process surely there must be one additional vote, a rollcall vote on whether you are for the Constitution as it stands or in fact for an alternative, for a republican model. Lest there be no doubt, Bruce Ruxton, I will be voting for the existing Constitution in that rollcall vote.

DELEGATES- Hear, hear!

Mr TIM FISCHER- One hundred and five years ago at a place called Corowa on the banks of the Murray River there was a very special gathering of a group of now famous Australians. As I pay tribute to all our federation pioneers I want to remind you of the actions of a Bendigo lawyer- yes, it seems we have to recognise that the lawyers were in there too at that time- a Dr John Quick of Bendigo, who moved for and succeeded in having a motion adopted which effectively rerailed the process and march towards the development of the federation of Australia, the amalgam of the states after a somewhat faltering initial effort.

What Corowa did, at a very critical juncture in the lead-up to the turn of the century just 105 years ago in 1893, was to provide renewed momentum from the input of the people to bring some sense to the state colonies and other elements opposed to federation and get the process under way again. Corowa's role deserves recognition and acknowledgment as the focus of that first people's conference. Indeed, it is matter of record- and I guess this is the most important lesson out of Corowa and the subsequent events- that each state colony went on to pass enabling legislation for federation and provide a majority popular vote for the Constitution. In the case of Western Australia, it was a little later on but before the proclamation of our Constitution.

Delegates, 100 years on, the preferential benchmark in both practical and Realpolitik terms is that any referendum to change the Constitution will need to be carried in all six states and two territories or rejected in all. Only by this criterion can you best avoid the constitutional Balkanisation of Australia. In one sense, I think our predecessors had an easier time than we do at this 1998 Convention. They were drawing up a federation. They were developing a federation on a greenfields landscape, whereas we have to deal with all the complex practice which has arisen since 1901.

Yesterday and today the very real difficulty of dealing with a federation in practice has started to sink in. Suddenly we are already a long way past simple emotion and simple symbolic change. We find ourselves faced by such thorny issues as whether our head of state should be a ceremonial figurehead or a constitutional guardian with reserve powers; whether convention and precedent established under a monarchy can carry authority without a monarchy; whether convention and precedent should be codified wholly or partially or, indeed, whether it can be at all; and whether the powers of the Senate should be changed.

So the Convention has already delivered a growing realisation that the apparently simple change of a head of state is a complex and difficult matter which has far-reaching implications for the way our great country is governed. Frankly, this does not surprise me. I always knew that the minimalist model had the potential for maximal change. I fully expected the Convention would by its very democratic processes bring this out.

This Convention and the Prime Minister's reaffirmation of the commitment to provide a vote of the people in calendar year 1999 are absolute commitments and they will be delivered- if you like, they are core promises. This is an absolute obligation to the Australian people and, given the circumstance of the situation, one I want to dwell on.

When the federal coalition came to power in 1996 there was a strong feeling within sections of my own party, the National Party, that the commitment to hold a Constitutional Convention and proceed to some form of vote of the people was one we could and should break. There was a feeling in some quarters of the public that it was a Keating idea and that, once Keating was gone, we could forget about the whole idea. I resisted that feeling and made a point of telling my party that I was determined that there would be a vote of the people to decide the issue, as promised, preceded by a Convention as initially suggested by my colleague the Minister for Foreign Affairs, Alexander Downer.

I always felt that the best way to move past the emotive appeal of the Australian head of state issue and draw out its real complexities and drawbacks was to have a debate out in the open. All of you have delivered that debate in spades- and full credit to the goodwill of all delegates and the way they have stayed to the task to date. It is exciting and a privilege to be participating in this Convention in this historic chamber.

The debate is now out in the open through this Convention. As has been demonstrated, the really difficult issues are starting to emerge. In terms of that debate, let me respond to one or two delegates's contributes by saying that Australia as a nation can be proud of the achievements of the body politic over the decades at local, at state and at federal levels. Yes, there will always be exceptions, but the general denigration such as brought forward by Delegate Ted Mack, a former local state and federal politician himself, I submit are untrue, unfair and unwarranted. Mr Mack had nothing good to say of political parties, despite the fact that the heart of any political party is the coming together of people of conviction to help achieve a shared vision of what they believe is good for their people, for their district, for the state or for the nation.

This country and its body politic survived such horrific chapters of our history as World War I, the Great Depression, World War II, the Cold War and at the economic level such extraordinary events as the advent of the EC, now the EU, and its impact on our traditional markets. Because of the efforts of our soldiers, our politicians and our Constitution, in times of war we as a country were able to stay united and come through all those difficult chapters.

If you want a more modern and practical example, let me give you another one- the Snowy Mountains scheme, which involved three state governments, one federal government and people such as Playford, Bolte, Renshaw, Chifley and Menzies. It was a true political and practical achievement delivered by the much maligned politicians of this country acting with a great mind and purpose for a particular project which has delivered huge dividends for the standard of living of all Australians. So I defend the Australian body politic. Let me now in clear-cut terms defend the Australian Constitution under which the politicians operated.

As constitutions go, our Constitution has delivered one of the oldest continuous federated democracies in the world. It has allowed a great modernisation and transformation of this nation, including the very style of government, within its overarching parameters. It is not a document of dead history; it is a document of living, evolving tradition facilitating and underpinning a modern, vibrant political democracy. Against our Constitution we have ranged several options, and I am against those. As Rob Borbidge has stated, they are, in shorthand terms: the mini-model- the McGarvie model; the midi-model- the ARM model and some variations emerging with regard to that, a president elected by a two-thirds majority of the federal houses of parliament and now perhaps removed by a simple majority in the lower house, the House of Representatives; and the maxi-model- a popularly elected president with mainly ceremonial duties involving, quite frankly, huge changes to our political system. Others have dwelt on the McGarvie mini-model and on the maxi-model.

I want to bring this Convention's attention to the midi-model. I turn to the Hansard of November 1975. It is, for example, very true to point out that, had the midi-model applied on 11 November 1975, the Prime Minister of the day could have been summoned to Yarralumla at noon to be dismissed by the Governor-General. Soon after he could have returned to the House of Representatives to force through the vote to dismiss in turn the Governor-General. All of this could have been done by 3 o'clock on that particular day, before the passing of supply by the other chamber and before the issue of writs for an election. Under this scenario, we could have no Prime Minister, no Governor-General, no supply and no properly issued writs for the conduct of an election.

If the Governor-General had acted quickly enough, perhaps a caretaker Prime Minister might have been installed. It is really very tenuous and points to why even the seemingly attractive to some midi-model is not without real pitfalls when you get down to examining the detail and the nitty-gritty of it.

The point about constitutions is that we need them, particularly in times of crisis. Whether it is a soccer team, the netball club, an RSL club, a constitution is often only referred to when people are uncertain about the way forward given a crisis or division within the organisation. The reason I am critical of the so-called midi-model of the ARM is that it does not effectively deal with what could suddenly emerge in a true crisis situation in our country. In 1975, under the midi-model we may well have turned to the Constitution and found ourselves in the log jam of all times.

I am also critical of the maxi-model because there is a risk that it will engender crisis by pitting the parliament against the head of state. If there is to be a new Constitution, we should all hope that it will sit on bookshelves for decades or centuries. It will only be called on in a crisis. We must ensure our alternative to the current system can effectively deal with crises in any model developed but, for my money, let us stay with our existing Constitution.

As federal leader of the National Party and Deputy Prime Minister I am very much against the midi- unless it is in a glass. I am very much against the maxi-model because of the much stated double mandate problem. And I have reservations about the mini-model, namely, the McGarvie model. No doubt it will be studied and examined in more detail over the next few days.

I salute the spirit of this Convention and the goodwill amongst delegates of all persuasions. I salute the spirit of Australia and I am confident of the capacity of our people to decide this question at about this time in 1999 once and for all, and for a very long period to come.

Let me close by dwelling on one other aspect which has not had much airing at this convention but which from time to time is trotted out by those who would propose change. In this regard I speak as Minister for Trade. Sometimes it is argued that, if we were a republic, somehow magically our export figures would be a whole lot more. Does anyone believe that the $104 billion record exports for the last financial year would have been $204 billion had we been a republic versus a constitutional monarchy? I do not.

If you look at Thailand, in recent weeks their trade figures have improved. They are working through a very difficult situation. They are making some hard yards and some progress. But is their recovery any quicker because they are a constitutional monarchy, or would it be even quicker again had they changed from the Rama regime- with King Rama IX currently reigning- and switched to a republic? I do not think so. Indeed, King Rama IX has chosen not to travel overseas and not to travel outside Thailand for many years, except into Laos on the occasion of the opening of the Friendship Bridge between Thailand and Laos.

Then again, some of you- and I can hear it just about coming from my good friend Phil Cleary in a moment's time- would argue that, when the Queen travels, she helps the export of British goods.

Mr Cleary interjecting-

Mr TIM FISCHER- I am sorry, I misquote you, Phil. What about the Queen's recent visit to India last year? Yes, she went to celebrate the 50th anniversary of the independence of India but, through no fault of her own, I think it could be adjudged that that visit was neither positive nor negative for the export of British goods and, if anything, somewhat neutral. So I make the point as Minister for Trade that that argument can well be left to one side.

The Convention should nevertheless focus on the three models. The Convention should work through the processes which are being developed by the Resolutions Committee and, above all else, we should end in a rollcall vote so that everybody can look back at this Convention and see the precise outcome and the way each person voted in respect of that outcome as a way to move forward to 1999 and a vote of the people. The case for changing our mighty Constitution which has helped modernise Australia remains distant, divided and ill-defined. I say: stay with a system that works and works well.

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Last updated: 21 October 2000