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 15

CHAIRMAN- I now call on Dr Lois O'Donoghue.

Dr O'DONOGHUE- Mr Chairman and fellow delegates, I must begin my speech by acknowledging the Ngunnawal peoples as the traditional owners of this region. In paying my respects to the Ngunnawal people, I must introduce myself and explain why I am on their country. My name is Lowitja and my traditional country is the area around Uluru in Central Australia. I am here as a visitor to this region to attend a meeting that will attempt to define Australia's future. I am a proud republican and I come as an Aboriginal person and a woman. There are too few of us in either category in positions to influence the processes of government in this country.

I come as a representative of Aboriginal people everywhere to remind delegates of their responsibilities. I have an obligation at this Convention to make some important changes to the government of this country. But I am left wondering why it is so difficult to turn around the colonisation process that continues to dispossess Aboriginal people. Perhaps it is something to do with the grandness of the venue and the theatrical style of some delegates, but I think we could do with a little less showmanship and a little more reason in this chamber.

I am sure that, if we leave our egos at the door, they will not get lost and we are likely to see a relationship between egos left outside and an increase in the number of delegates who get their chance to speak. I am aware of the fact that some delegates are resisting the logic and the inevitability of the move to an Australian republic. I have heard arguments that the present system has served us well and provided stability, so it does not need change. I have heard arguments that we should look for minimal change for similar reasons. I have also heard arguments for the minimal change that suggests that the Australian electorate lacks the vision and the confidence to manage its own affairs.

I reject both sets of arguments. I do not believe that the existing system has served Aboriginal people well. I do not accept that the Australian electorate is immature and needs to be nursed along by power elites. This second attitude seems to have solidified into a lump of constitutional concrete over the past two days. But any proposal that seeks to patronise the Australian public will fail to win my support, and I dare say it will not be supported by much of the general population.

The people must have a say in the appointment of the head of state and we can argue over the means but anything else will be a republic in name only- dare I say, a banana republic. I believe we have a lot more work to do on the manner of appointment of a head of state but, for now, I will return to the theme of why we need a republic.

We need a republic if we are to grow as a nation. I do not for a moment suggest that we should abandon our history. I have consistently argued that we need to remember our history and be honest and inclusive about it. I believe there are a number of aspects of our recent and ancient past that should never pass from our minds, but they include issues that we need to learn from so that we can move on to make ourselves into a better nation.

Australia as we know it is a federation of colonies rather than an integrated nation, and we have all the ceremonial rigmarole and duplication of processes to remind us of this fact. Proof of our fragmented status as a nation is evident in the importance placed on the concept of states rights and the limits imposed on national leadership. Much of our history over the past 100 years shows that states retain far too much autonomy and far too much influence over the affairs of national government.

From the point of view of most Aboriginal people, there is little to reward us in holding on to the present arrangements. We have carried the brunt of all the faults that are intrinsic in the existing system. We have had state and federal governments pass responsibilities from one to another without any lasting effect. We have endured the policies of family separation that have caused so much havoc to our health, culture and standing in the mainstream community. We have had to put up with the discriminatory measures in such areas as health policy, education, housing, and law and justice matters. There has been no uniformity in the standards of service provisions from one state to the next, and no consistency in the regard for our rights as humans.

On this point, I am not waving the banner for Aboriginal rights, although I will come to that very shortly; I am simply saying that our people have experienced unequal standards in the application of human rights from one part of the country to the next. Some would seek to preserve this federation of colonies that has delivered that result. But it is a rationale for a hierarchy of discrimination and why would Aboriginal people see value in that? There might be only a couple of people in this chamber who can honestly say they understand that experience. For most of you, you just cannot know or understand the experience of being a second-class citizen in this country. You cannot tell me how your family would survive living under a bridge while suffering a range of chronic diseases, while facing limited employment prospects and while not knowing where to find your mother or your siblings.

Some Australian traditions need reviewing. The recent conduct of a large number of our elected representatives suggests that other people share this view. Many of them, monarchists to the core, with a fine respect for traditions and institutions, had no hesitation in participating in an unprecedented attack upon the High Court following the Wik decision- the High Court, the supreme, non-political institution in our land- but there is a strange inconsistency in the reasoning of such people. They attacked one of the pillars of our legal system for its impartiality and diligence that has brought benefit to the community. At the same time, they argue for the preservation, for sentimental reasons, of a system of government that has not served us well. How will we get sense out of these people?

The dispossession of Aboriginal land has been one of the great achievements of our system of federated colonies. There are individuals at this Convention, even in this chamber right now, who have argued passionately that justice has been served through this dispossession. You see, it is all about the different interpretations of land management that the states have pursued and this difference in the treatment of Australian citizens is held to be justifiable because of the government structures we have in place. But this reasoning is just not acceptable. I do not believe that the transition to a republic will answer all of these problems, but it will produce some further thinking about relationships and responsibilities.

There are a range of other issues that this Convention must give some time to considering if the result of our two-week talkfest is to have any meaning and relevance to Aboriginal people. We need a new preamble for our Constitution that acknowledges the status of Aboriginal and Torres Strait Islander peoples and that indicates respect for the land and Aboriginal cultural heritage. At the appropriate time, I will introduce a motion for a new preamble for delegates to consider- a preamble that also acknowledges that the Constitution derives its power from all of the peoples of the nation.

We need to amend section 51(xxvi) of the Constitution, the race power, to make it an affirmative power to guard against detrimental acts by governments. On the eve of the Hindmarsh Island hearings in the High Court dealing with that very issue, it is important to consider that these are very real, live constitutional issues for Aboriginal Australians. I hope the newly appointed Justice, Ian Callinan, sees fit to maintain the traditions and the integrity of the High Court by disqualifying himself from that case. These constitutional changes must be part of the package of changes that this Convention recommends. With all due respect to those indigenous delegates who may have different views on the head of state, I believe none of us here can overlook these important and essential changes.

We are here to fight for changes that will benefit our people, not entrench for all time the problems we face. I cannot be as relaxed as some about the timetable for a republic. I believe that we need to bring it forward to protect the interests of Aboriginal Australians. I believe we are losing our culture at such a rate and our rights are under such threat that we cannot afford to wait for a more relevant process of government operating under a more just Constitution.

I believe we should set the year 2000 and the Sydney Olympics as the target time by which we should have these changes in place. We should show the world a modern, inclusive nation where the rights of all citizens are given constitutional guarantee. The timing will be perfect because of the surge in national pride that will accompany the Olympics. It will be perfect because our young heroes, such as Nova Peris-Kneebone and Cathy Freeman, will be able to accept their gold medals on behalf of a free and just republic under a new Australian flag. I believe that we have no choice at this Convention other than to embrace a move to a republic.

CHAIRMAN- I now call on Mr Ed Haber, to be followed by the Hon. Robert Hill.

Mr HABER- Fellow delegates, I am honoured to follow such a great Australian as Lois O'Donoghue. This Constitutional Convention, the first to be elected, or at least partially elected, in a century, presents Australia with a unique opportunity to embrace its identity and confront its future. In terms of Australia's identity, the time is right to cut the formal ties with the United Kingdom and the British monarchy and establish an independent Australian republic.

In proposing such a change, no disrespect is intended to Her Majesty the Queen, whom the majority of Australians, I am sure, greatly admire and hold in high esteem. The relevance of Britain to Australia has declined over the years, particularly with the advent of the European Community and Britain's membership thereof. One is particularly aware of this factor on entry into Britain these days when you are confronted with the choice of joining one of two queues: one marked `EU' for holders of European Union passes and the other marked `Alien or others', or some similar designation, obviously with no special privileges for Commonwealth citizens, and Australians in particular.

In the light of such developments, a change in identity is overdue. To many, the symbolism inherent in such change is as significant as any constitutional rearrangement in declaring a republic. No better example pertains than that presented during President Clinton's visit to Australia following his re-election in November 1996. After a toast proposed to the President of the United States of America, President Clinton responded with a toast to the Queen of Australia, serving as a timely reminder to many Australians of the need for an urgent overhaul of our constitutional arrangements with Great Britain by the time we embark upon the new millennium.

Putting aside the symbolism of becoming a republic as discussed, of far greater significance to me are the long-term structural changes to our system of government which can be incorporated into such a change to our Constitution. Unless we grasp the nettle and go beyond just superficial or minimalist change to the Constitution, the rare opportunity afforded by this Convention will be in vain.

With the continuing and mounting evidence of the failure of the current system of government as outlined in considerable detail on the opening day by my colleague Ted Mack, I am calling for the abandonment of the Westminster system and the adoption in its place of the best features of the American system. I am calling for an executive head of government. Ideally, the head of state and the Prime Minister should be one and the same person elected directly by the people of Australia. That overcomes the problem presented by Malcolm Turnbull earlier today when he pointed out it could be considered ludicrous to have an indirect election for our Prime Minister and a direct election for the head of state. That overcomes one of the first objections.

There can be no other source of authority than the people if the people are to be sovereign under any new Constitution. Furthermore, there must be clear separation of powers between the executive, headed by the Prime Minister who selects the ministry from the best available people outside the parliament, and the parliament itself which should be elected for a four-year fixed term, thereby removing much of the present-day tinkering and capricious calling of elections.

The fixed-term parliament exists already in New South Wales and was a promised reform for the federal parliament by Bob Hawke in his 1983 policy speech presented at the Sydney Opera House but never proceeded with. Even more paramount is the entrenchment into the Constitution of an electoral system which enables parliamentary representation to truly reflect or mirror the nation's mind. This certainly cannot be claimed to apply to the existing winner take all, single member constituency system employed for House of Representatives elections.

The most recent so-called landslide election resulting in the current government holding 64 per cent of seats on a combined coalition vote of just 47 per cent can only be viewed as a travesty of democracy in terms of one vote, one value. Shall I repeat that? Sixty-four per cent of seats are currently held by the government on just 47 per cent of the vote. In fact, we got a minority vote.

Mr FITZGERALD- Ted Mack was never elected in his own right, was he- 50 per cent?

Mr HABER- Fifty per cent- before or after preferences? It is envisaged that the appropriate outcome is best achieved by dividing Australia into- wait for it- nine-, seven- or five-member seats, the smaller numbers applying to rural areas, with election by a system of proportional representation-

Senator HILL- Oh, and I'm sure that will go down as well!

Mr HABER- It is a serious matter! To continue: with election by a system of proportional representation truly reflecting the people's will in compliance with article 21 of the Universal Declaration of Human Rights and, likewise, article 25 of the International Covenant on Civil and Political Rights, to which Australia is a signatory, Senator Hill.

Mr HODGMAN- This is not Hare-Clark; it is harebrained.

Mr HABER- You got elected on Hare-Clark.

Mr HODGMAN- Yes, but I would prefer to be in a single electorate any day.

Mr HABER- Two key messages have come out of that covenant to which we are a signatory and choose to ignore, Senator Hill. Firstly, there are freely chosen representatives, so we do not want the list system of Israel and, secondly, it must represent the will of the people. I stress again, it is high time Australia honoured its obligation in this regard, and what better time to start than in the framing of the new Constitution for the republic of Australia. After all, the electoral system becomes the cornerstone of any true democracy which we, as fair-minded Australians, must strive for. The parliament deriving from these foregoing proposals should then be freed of the rigid party discipline currently observed and be able to function unencumbered and unimpeded by such matters as the ministerial preferment intertwined in our existing arrangements.

With the advent of true democracy in the House of Representatives by way of entrenchment in the Constitution, then and only then can the role of the Senate envisaged at federation be revisited. Certainly its role as the states house has long since become an anachronism. Currently, the sole remaining role of the Senate is that of a house of review, much to the chagrin of many. However, with the democratic reforms to the House of Representatives previously outlined, it can be reasonably argued that the Senate's role is further diminished, if not rendered totally redundant or even obsolete.

The ultimate removal of the Senate should satisfy those republicans who perceive it as an obstacle to an elected president. That point has been expressed a few times here. At the very least, the current Senate system permitting one Tasmanian vote to be equivalent to 12 from New South Wales, my home state, requires immediate addressing in this Constitution.

On the subject of the Senate, I will divert for a moment to the working group discussions this morning, particularly on the Australian Reform Movement's proposal. Working Group C, in a clarifying comment at paragraph 7, kindly noted:

The prescription of the special majority, being two-thirds, is on the understanding that the Senate continues to be elected by proportional representation.

Is that just a wish and a dream? Unless we entrench it in the Constitution, that proposal is already constitutionally flawed.

It is all very well for the ARM to have pointed out in the debate earlier today the bipartisan nature of the special majority of two-thirds of the joint sitting of both houses of parliament, but only back to 1949 when PR was introduced for Senate elections. The only example that went near that, on checking the two-thirds for bipartisanship, was the parliament elected after the 1975 double dissolution, when the Fraser government would have been alone subject to the support of two Independents at the time, Senator Steele Hall and Senator Brian Harradine.

But before 1949, again under the existing locked list voting system from 1901, the two-thirds test would have failed in the parliament of 1914, the parliament of 1917, the parliament of 1919, the parliament of 1931, the parliament of 1934 and the parliament of 1946- that is a bit of quick research done over lunch. I think somebody ought to do some proper homework before we rush headlong into this sort of Clayton's republic.

I shall not be casting a vote in favour of it. We ought to go back with a fresh piece of paper and start to develop a genuine republic. Before any new republic can claim democratic legitimacy of any kind, these most basic tenets of democracy need incorporation into Australia's Constitution.

CHAIRMAN- Thank you very much, Mr Haber. I call on Senator Robert Hill, who will be followed by Dame Leonie Kramer.

Senator HILL- Mr Chairman and delegates, I believe that Australia should have an Australian as its head of state. I believe it is a change that we should embrace with pride. To me it would be an achievement, a logical and progressive step, in our evolution as a nation. Provided that the new model is crafted with care, I am sure that it can be achieved without any threat to the stability and security of the current constitutional structure.

I feel a touch concerned that I return to this building and recall my heroes when I arrived here in 1981- the Reg Withers, Neville Bonners and Jim Killens of the political world- and here they are again but all on the other side. I can only think that with age perhaps they have lost their spirit of adventure. Seriously, though, I do understand those who, beyond sentimentality, remain wedded to the existing structure.

By any standard, Australia has been well served by its Constitution. It has provided stability where others have delivered uncertainty. It has ensured workability where others have delivered chaos. It has endured where others have floundered. Our founding fathers, were they alive today, would have much to be proud of. I agree that their unique Australian legacy must not be put at risk.

But I am sure that our founding fathers, if they were here today looking at contemporary Australia, would find it more than a little odd that we would still have the British sovereign as our head of state. It seems to me that without being prepared to embrace constitutional change when our nation has otherwise so extensively changed will be to ultimately undermine the legitimacy of the existing system. In other words, it is important to adapt to change. It is important that our institutions reflect contemporary Australia and not just our historical legacy, rich though it might be.

The British legacy to Australia has been enormous: the Westminster system of government, the common law, British public administration, the values of freedom and liberty that have not had to be codified- they have been a fine foundation for our nationhood. Despite the fact that the British and Australian nations have taken different paths in so many ways, as a result of this legacy there will always be a bond which is special.

But in building on this legacy we must continue to make our own destiny. In doing so, there have been some who have been analysing the strengths and weaknesses of the structures of other states and urging the adoption of one model or another. To me that would be a mistake. We have our own structure which is unique; as we move on it must remain unique. I do not eye the system of any other with envy. I do not see a need for radical change, as has been suggested by some. The change I believe is desirable would be largely symbolic. Some say that symbols do not matter. I believe that symbols are important. Symbols define us as people. They reflect our values, our directions and our commitment. They inspire. They are in many ways the glue that binds peoples together.

The Australian nation has, in my view, matured to a stage where we can cease to have the British monarch as our head of state and can take one of our own with confidence. It is to me, as I said before, a natural step in our evolution, as it was to abolish appeals to the Privy Council some 23 years ago- but I remember the cries of anguish at that time. Some, such as my former colleague Michael Hodgman, who is also here today, are still in anguish. Most in the British Commonwealth have already taken the step of adopting one of their own nationals as head of state without negative consequences and I have no doubt that ultimately all will do so. If you believe that shared values bind the Commonwealth together, it is a change that will not affect the strength and cohesion of the Commonwealth. The Queen will obviously remain its head.

Being convinced that the time has come for an Australian as head of state, the question becomes how that can be achieved consistent with maintaining the strength and values of the existing system. In particular, how can the existing checks and balances between the head of executive power, the Prime Minister, and the constitutional guardian, the head of state, be maintained?

I do not want to move to a purely ceremonial head of state. It would remove residual checks and further enhance the power of the Prime Minister, who, as we have been often reminded at this Convention, is not directly elected as head of government. Equally, I do not want to create an alternative political power in the head of state, which direct election and codified powers would do. I have therefore had to reject that model.

The strength and stability of the existing system must not be lost by the change we propose. We could simply provide a power of appointment and dismissal of the head of state to the Prime Minister- either directly or through a nominal authority- which would be a near reflection of today's reality. But I prefer the election of the head of state by a special majority of, say, two-thirds of the parliament. It is true that this would modestly reduce the discretion of the Prime Minister. However, it would also modestly enhance the responsibility of the parliament. Some may object to enhancing the responsibilities of parliament, but Australia is a representative democracy. Parliament is the assembly of representatives who have been elected by, and are accountable to, the people. In this instance it includes the Senate, which might serve multiple roles but which in its composition reflects the federal nature of our system of government.

The supremacy of the parliament, subject only to the Constitution and the electorate, and the responsibility of the executive to parliament are cornerstones in our democracy. To enhance, albeit modestly, the supremacy of parliament in this way seems to me to be a sound investment. Some, verging on many, have come here lamenting the unpopularity of politicians. To that there is a simple answer, and it is in the hands of the people. But it is not to knock the institution. To use this as an opportunity to undermine the authority of parliament I believe is highly counterproductive. It seems to me a strange concept indeed that the directly elected representatives of the people would be perceived to be inappropriate or unfit to discharge the duty of electing a president.

The more difficult issue is dismissal. To maintain the existing balance, I see no alternative but to retain in the Prime Minister the power of dismissal. Some will say that this, from the point of procedural ease, enhances the power of the Prime Minister. Then, consistent with my commitment to parliamentary democracy, if the relationship of power between the Prime Minister and the head of state has to be slightly rejigged, it must be in favour of the Prime Minister.

What I therefore support is a compromise- that I concede. But, with such a change, we get an Australian as head of state; we give the people, through the parliament, a more direct role in the appointment; and we do not significantly alter the balance of power between the Prime Minister and the head of state.

John Howard as Prime Minister has given the opportunity for this reform. He has facilitated debate through this people's Convention, and he has offered us the opportunity of a referendum. He has given the republican side every opportunity to make its case, and I commend his initiative.

But the side for change must find a common position, and it will require compromise, recognising that there is an argument for and against every proposition. If those for change, in which I include myself, are not prepared to compromise on the detail to achieve the goal, we will be letting not only ourselves down but the very many Australians who are relying upon us. I look forward to the further considerations of the Convention.

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Last updated: 21 October 2000