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 6

CHAIRMAN- I now call on Mr Malcolm Turnbull to speak on the issue of the day.

Mr TURNBULL- We are now dealing with the method of election. There has been a bit of controversy as we all know about the method of directly electing the head of state. Those who favour direct election for an essentially powerless head of state, which is the Irish model that is being discussed here, claim to do so in defence of popular sovereignty. They have said that indirect election by parliament is an outrage and a denial of popular sovereignty. But is it not a paradox that they believe the people's popular sovereignty demands the people should elect a powerless ceremonial head of state but the head of government, the Prime Minister, should be indirectly elected by the House of Representatives?

Mr RUXTON- Point of order, Mr Chairman-

CHAIRMAN- No need to interrupt him, Mr Ruxton. Must you do so now?

Mr TURNBULL- Mr Ruxton is on his feet. I am silent.

CHAIRMAN- What is your point of order, Mr Ruxton?

Mr RUXTON- My point of order is: how did Mr Turnbull jump the queue?

CHAIRMAN- Like many other delegates, he has exchanged his place of speaking with another delegate.

Mr TURNBULL- Thank you, Mr Chairman. I trust I will be given a little extra time to accommodate Mr Ruxton's intervention. The only direct election model which is intellectually consistent with the proposition that popular sovereignty demands that the people directly choose their leaders is one where the chief executive of the nation is also the head of state, which is the Ted Mack American-style model.

Far be it from any of us to criticise, deride or denigrate the American constitution, but it is preposterous to suggest, however compelling that model may be, that right now in 1998 there is any prospect of getting broad or any significant popular support for an American-style constitution. So I would say to the advocates of direct election on the Irish model: why is indirect election acceptable for the Prime Minister, the office holder with all the power, but utterly unacceptable and an affront for a ceremonial head of state?

I turn to what has been called the McGarvie model. This is essentially the ultimately minimal proposal where the Queen is replaced by a Constitutional Council and essentially the Prime Minister continues to be able to nominate and remove the head of state at his whim. This model was suggested to the Republic Advisory Committee by a number of people, including Richard McGarvie.

This model is a blindingly obvious minimal development. You take out the Queen and you put in something else. Indeed, it was suggested to us by a number of heads of government- Premiers and so forth- a number of governors, former governors and former governors-general. It is a perfectly sensible model if you start from the premise of having absolutely minimal change.

But we asked ourselves in the ARM when we considered this how we could improve the existing system. We asked ourselves: what would a Prime Minister do who was acting in an ideal fashion, who was being the ultimately reasonable Prime Minister? What he would do is consult with the Leader of the Opposition and say, `I'm considering these people. What do you think?' and he would ensure that there was broad support. Would we not regard it as an improvement in our constitutional affairs if the Governor-General always had the support of both sides of parliament?

We accept a process of consultation already with the appointment of judges. Sometimes that does not always present somebody who is bipartisan, but there is a concession of a process of consultation between the federal and state governments. The ARM model ensures that you will have as a head of state somebody who has bipartisan support. That surely is an improvement.

Where the criticism of the ARM model has, it is fair to say, some merit is in the area of dismissal, and I think it is fair to say that the bulk of Mr McGarvie's, Mr Howard's and others' criticism of the ARM model has been directed at that. The reasoning given is that you get a head of state who cannot work with the Prime Minister, the situation is untenable and the Leader of the Opposition is not going to accommodate the Prime Minister in removing him. It has never happened in our federal system. It is an extreme circumstance, but we accept that in a contest between the head of state and the person who commands the majority of the members of the people's house the people's house must prevail. At the end of the day, the House of Representatives must prevail in that contest.

So we are very open, as I said in my opening remarks, to different models for removing the head of state. They could include a decision of the Prime Minister alone, perhaps formally mediated by a constitutional council along the lines of the one that Mr McGarvie has been discussing. We could say that this motion of the Prime Minister's to remove should have the support of a majority of ministers or a majority of members of the Executive Council in order to get around the problem occasioned by circumstances similar to those that faced Sir Joh Bjelke-Petersen when he was Premier of Queensland and lost the support of his cabinet. He wanted to advise the Governor to dissolve parliament as a means of escaping from his own internal party room difficulties. One could say that, if he had had the power to sack the Governor instanter, he may well have exercised it. So there is some merit in having a process, be it a majority of the members of the Executive Council or a constitutional council of the kind Mr McGarvie has proposed, which would act as a brake against that rare circumstance.

The model which attracts the ARM is a simple majority of the House of Representatives. We believe we should affirm our confidence in and commitment to the parliamentary system. That would almost inevitably mean the Prime Minister would have his way, but he or she would have to persuade their party room and be prepared to stand up in front of the Australian people and say, `This is what I'm doing,' and allocate some reasons for doing so.

A concern has been raised with us by several delegates about what happens if, in between the Prime Minister recalling parliament to move this motion, the head of state leaps in and sacks the Prime Minister and appoints someone else. There is a simple and straightforward solution to that. It would fit very well into clause 5 of the partial codification model- which is at page 105 of the RAC report- which would be to say that, between the notice of recalling parliament or the notice of motion to remove the head of state and that vote being taken, the head of state cannot dismiss the Prime Minister or dissolve parliament. That would mean that, during that interim period, essentially there is a stand-off, nothing could be done by either party to the other, and then parliament would make up its mind.

I now want to deal with the issue of nomination. We believe that there is considerable scope in the parliament, presumably through a select committee, consulting widely with the community as to who would be an appropriate head of state. In a sense, this happens already because, as the term of one Governor-General is coming to an end, there is speculation as to who the next person will be and there is commentary and so forth. That is perfectly defensible and important in a democracy, but we believe there is merit in having a more formal process. Whether that should involve nominations being made with so many signatures is an interesting concept.

We want to talk with other delegates about this and work up something that is feasible. I suspect that a commitment to consult, an obligation to consult, and an obligation to take into account the submissions of the public may be more effective than having a process of people sending in nominations, because there may be some very good and valuable views which do have broad support but the proponents of which have not sat in shopping centre for hours. (Extension of time granted) It would be more effective than having a formal signature, write-in nomination proposal.

We are very open to a community based method of consulting to ensure that the interest of the community in supporting eligible candidates is taken into account. I am sure that, as a matter of practice, that would happen now. Governments would take that into account and, under the two-thirds model, oppositions would also take into account the suggestions from the public.

Those are my contributions on the mechanics. I want to conclude with a single observation on the politics of this. Although not all of you will agree with this, I believe that all of us have a great interest in the republic referendum being won. We cannot afford for this referendum to be lost. It is important that the model that be put up is one which recognises popular sentiment as far as is possible, consistent with our constitutional arrangements.

Mr HAYDEN- Consistent with our belief in our own superior wisdom. That is why you are excluding the public from the ballot.

Mr TURNBULL- No, Mr Hayden. You have never had any lack of confidence in your wisdom, superior or otherwise. There is a strongly held view in the community that a politician should not fill this job. That is a view that has been held for a very long time. There was considerable resentment at the appointment of Mr Hayden. I am not suggesting that he did not do a good job, but there is real resentment against the appointment of politicians. That popular concern can be addressed, can be allayed, by the two-thirds nomination method. It will ensure that the Bill Deanes or the Ninian Stephens of this world will be Governor-General, not the Bill Haydens. History may ultimately decide that that is a loss.

Mr SUTHERLAND- What about Keating?

Mr TURNBULL- Keating could never get the support of a two-thirds majority. That is the whole point. That is why, ultimately, Mr Keating supported the two-thirds methodology because, plainly, had he supported any other methodology, people like you would have said that he just wanted to be president. No former active politician could conceivably be our head of state under the methodology we have proposed. That is the single most important political case for the two-thirds methodology. It improves the method of appointment because it ensures that an impartial office has bipartisan support, and it will enhance its prospects of success in the referendum.

CHAIRMAN- Thank you very much. There have been a number of other people who have changed places and, to satisfy the proper inquiry of Mr Ruxton, I will explain that Mr Tony Cocchiaro is replacing Ms Sallyanne Atkinson, who will now drop to No. 13 on the list, where Mr Malcolm Turnbull is listed. Mr Cocchiaro will be followed by Mrs Christine Milne.

Mr COCCHIARO- Mr Chairman, delegates, before I outline my position, I will explain my background, because I think it impacts on what I am going to say. I am a general family doctor in a working-class area and I am involved with multicultural groups. Talking of multicultural groups, when Working Group A presented its paper it included lots of groups in Australia on the selection panel for the president, but seemed to have forgotten completely the 30 per cent of Australians who are of non-English speaking backgrounds. Groups such as multicultural communities councils and ethnic communities councils in all the states represent hundreds of organisations. Altogether, they form the Federation of Ethnic Communities Council of Australia. Anyway, I am sure that that is something that could be fixed if that resolution were ever passed.

As I was saying, I believe I can lay claim to being fairly well in touch with that very large and usually silent section of the Australian public. In my job as a GP, I talk to people ranging from the unemployed to the very well off, other professionals, et cetera, and I get a sense of what they feel about the future of Australia.

My other advantage, which in this setting is probably very important, is that I have never been and am not now a member of any political party. Like 70 per cent of people, my first reaction when I thought about this republic and how to choose a president of Australia was to have a popular election. It is democratic and elections ensure that the citizens of Australia are the supreme power. That is obvious. What better way to get one person who embodies what Australia is than by popular election? But then I thought about it.

These sentiments are fine in an ideal world. We should always strive for improvement in our world- and that is why we must have a republic, by the way- but improvements come slowly, with difficulty, and with painstaking work, as I am sure Malcolm can tell us, over the last many years.

We are in the real world, and the real world of politics says that to properly elect a president would require wholesale changes to our system of government. We would need to have something like the American style of presidential system. I contend that, although they are much better at marketing their system then we are, theirs is not a better system. I believe our system is better than the American system. Perhaps we could market it better.

Besides that, even if we wanted to change to a presidential American style system, how would it happen? It would be very difficult and would virtually require a revolution. Therefore, I came to the clear conclusion that we have to work with the system we have. We are happy with the system. The other system does not seem to be any better. Once you come to that conclusion then the system that we have dictates that the president or the head of state must not have his or her own large power base. That president must be able to work with the Prime Minister in a balanced way.

Having arrived at that conclusion, the options available to us to elect or nominate the head of state are simple. Election may be attractive but it is not an option. It cannot be an option in our present system. I strongly endorse Working Group C's resolution of having two-thirds of both houses of parliament in a joint sitting nominating and electing a president with dismissal by the majority of the House of Representatives.

I noticed that Geoff Gallop questioned the concept of citizenship of delegates not supporting direct elections. I believe that nothing could be further from the truth. It is loud and clear that commonsense balanced with justice, balanced with democracy, is true citizenship. I am sure that the monarchists, having heard the republican arguments and seeing their backs to the wall, will show citizenship and vote for a republic on the last day.

In summary, the two-thirds parliamentary majority election with a majority of House of Representatives dismissal is my clear and first option, and I urge delegates and the public generally to support this. If, as appears, Australians do not trust politicians to elect a president, then we should institute perhaps some other method of electing the politicians or elect other politicians. We already have too many elections, too many politicians. Why would you want another election?

Senator BOSWELL- And another politician.

Mr COCCHIARO- I am getting to that. Exactly. Especially when the president is in a non-executive position. Surely he or she can dismiss the Prime Minister. Surely he could embody the soul and express the feeling of the country. He could carry out ceremonies. But the president cannot raise or lower taxes. They are the important things. So why have more elections? There appears to be only one valid reason. It sounds very democratic, but the crunch is that an elected president is unlikely to be partial and democratic- as you have said, sir- and we will get a better, more cunning politician than the other politicians. That is all we will get if we elect a president.

Therefore, I appeal to fellow Australians and to delegates to think about what I have said. We need and must have a republic. We need to go forward. Our system of government works reasonably well. Let us have some control on the president via our elected politicians, so we do have control, and the public, the citizens of Australia, do have control over the president because we have control of our politicians. That is ample, in my opinion, and the group C resolution should be the one adopted.

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Last updated: 21 October 2000