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 8

Mr COWAN- Before providing answers to the question before the chair, there are some quite fundamental issues which must be addressed by this Convention. The Constitution and the Commonwealth were created by the states arising from the conventions and the state referenda of the 1890s. The position of the states should not be ignored in attempts to shape a model for a republic. With a change to the head of state we will still have a federation, we will still have the states and we will still have one indissoluble federal Commonwealth. So the states cannot be ignored, nor can the people of any state, nor can the position of state governors who are the umpires of vital parts of our federation.

The states joined as equal partners in creating the Constitution and the Commonwealth. I would not support a situation where that Constitution divides or downgrades the equal status of the states. We should be sure that the consensus that was achieved in creating the Australian Constitution is achieved again, if such a fundamental change that Australia becomes a republic is to be put to the people. As a matter of principle, any referendum under section 128 of the Constitution to bring into effect a republic should only be assented to by the Governor-General under section 128 if passed by a majority of all voters and a majority of voters in all states. If this is accepted, it does provide a higher point of principle and consensus for the purpose of creating such a fundamental change to a republic.

It has been claimed by those proposing a republic that it will unify us as Australians, that we can more proudly be Australians with an Australian head of state- cut out the Queen and we can hold our head high among other nations at the Sydney 2000 Olympics as independently Australian. I have spent five years travelling the world promoting Western Australia, and I have never had the question put to me that I am not Australian because we have the Queen as our head of state.

If the majority of Western Australians decide at such a referendum that they do not want a republic, are they then any less Australian? If they decide, for whatever reason, that they do not trust a move to change their head of state, their Governor, do they renounce their Australian heritage or are they simply to be treated as misguided Australians who hopefully will come to their senses in time to make the supposed essential change? On page 4 in the executive summary of the Western Australian Constitutional Committee's report, there is a very important message:

The Committee has been impressed by the extent to which the many Western Australians who made oral and written submissions to it are conscious of their identity as both Australians and Western Australians. We would have a defective republic if, in the view of the majority of voters in any state, the Australian head of state was not really their head of state. Respect for the position comes from a general acceptance that the position carries the authority it deserves.

I would hate to see a situation where an Australian head of state would be welcome only by a minority of people in any state of Australia. A majority of voters in New South Wales cannot pave that welcome for the head of state in Western Australia if the majority of people in Western Australia do not equally think, feel and vote for it- and they will not grow into that view over time if they first reject that view at a national referendum.

If you believe this to be wrong, simply look at the issue of daylight saving in Western Australia which has had a long history of rejection at referenda. While a majority of eastern states enjoy daylight saving, Western Australia is different. While most people have an opinion about daylight saving, everyone accepts that it is not practical in that state. This is not an argument for separatism or special pleading. For those who wish to have a republic, it is not an argument for letting one state step on the hose or drag down the rest of the country; it is a democratic argument for ensuring that we are all part of the same country. It is also an inclusive and truly federalist argument.

A republic is not something that can be driven in over the top of people. I do not accuse those in the Australian Republican Movement of doing so; they do genuinely believe that the public will come with them. What I am suggesting is that should a clear model for a republic be developed by consensus from this Convention then the terms of a referendum for change should be drafted and put to the appropriate constitutional amendment processes; that is, at the Commonwealth level, a republic should be voted on in a section 128 referendum.

However, on issues that affect or concern state constitutions or governors, then state processes- whether state referenda or legislation- must be utilised. Therefore, a referendum under section 128 could be held in tandem with similar state referenda as they are required by state constitutions or legislation proclaimed to coincide with the outcome of the referenda. Should a majority of voters in all states decide to vote in the model for a republic, then this will come into effect for all Australians at the same time.

There is and should continue to be a clear distinction based on the federal nature of Australia's constitutional arrangements between the amendment of the Commonwealth Constitution and of state constitutions. Simply put, section 128 of the Commonwealth Constitution must not be used to effect changes to state constitutions. Apart from legal arguments about the limitations on the scope of section 128, the only appropriate way to effect changes to state constitutions is via the mechanisms which the states themselves have adopted.

There are no justifications either in principle or practice for section 128 to deal with, for example, the position and powers of state governors. Any attempt to do so will involve far-reaching consequences. Examples include: an unwelcome and unnecessary, not to say distinctly non-federal, development in the processes of constitutional change and amendment in Australia; the amendment of state constitutional structures, institutions and powers by a national referendum which is opposed by a majority of voters in the state. That is, unacceptable changes might, for example, be imposed on one or two states by other Australians.

If a section 128 referendum can penetrate so far into state constitutional arrangements to be able to remove state governors, then there appears to be no limit to what future section 128 referendums may do. To put it succinctly, the people in New South Wales, Victoria, South Australia and Tasmania could amend the Western Australian constitution or even the Queensland constitution against the democratic will of the people in Western Australia or Queensland. That is taking centralism too far.

The argument that those who favour a centralist or non-federalist approach by advocating use of section 128 to impose a republic at both the Commonwealth and state levels and disregard a true Australian consensus are not only standing on dubious constitutional grounds but equally importantly are throwing away the very basis of how our Constitution was created and continues to be sustained. It will rankle state parliaments and it will rankle voters in states- most definitely in Western Australia. Similarly, any attempt to use section 15(3) of the Australia Act to impose a republic on the Australian public would be undemocratic and unwise.

DEPUTY CHAIRMAN- I call the Hon. Denver Beanland, the Attorney-General of Queensland.

Mr BEANLAND- Thank you very much Mr Chairman, ladies and gentlemen. Power and all of its aspects is the fundamental question on each issue which we are debating here at this conference. So far at this Convention, we have heard many conflicting ideas being expressed about whether or not we should have a president and, if so, what are to be the powers of the president.

I point out that our Constitution was founded on the principle that the people of the respective states, humbly relying on the blessing of almighty God, agreed to unite into one indissoluble federal Commonwealth under the Crown. If the Crown is to be replaced by a president, Australia must still remain one indissoluble federal Commonwealth. So far we have not heard any significant consideration of how this federal essence of Australia is to be maintained in the appointment of the proposed president.

Indeed, looking at the models put forward for the popular election of the president, with so-called `open nominations', it is nothing more than an elitist proposal with a select group of people and organisations becoming a presidential nominating committee. It is this body that would control the presidential nomination in a similar way to the elitist McGarvie model, which is even more under the control of an unrepresentative group. If we have open nominations for candidates for a popular election of the president they, to be successful, would either belong to a political party or be very wealthy independent candidates. All this is highly likely to lead to the election of a non-politician, as many claim is essential if a president is to be acceptable to the Australian people.

If a new president is to be accepted by the Australian people, then it is my submission that he or she will only be acceptable if the method of their appointment reflects the essential nature of Australia as an indissoluble federal Commonwealth. So far we have heard arguments for broad propositions which all suffer from the fatal flaw that, if adopted, they would enable the golden triangle of Sydney, Melbourne and Canberra to determine who is to be Australia's president and thereby ignore the interests and concerns of people from other areas of Australia. These models centralise power, to the detriment of all Australians. Unless all Australian citizens, whether they live in the Torres Strait, the Kimberley, at Esperance or at Zeehan, feel they have a real and proper role in the selection of their head of state, then the fundamental nature of an indissoluble federal Commonwealth will be put under strain.

I note that it has been claimed that a president can have the same power as the Governor-General- no more, no less. This view, with respect, is fallacious. The powers of the Governor-General, both as legislated and arising from convention, are the product of hundreds of years of development, from absolute monarchy to constitutional monarchy. Monarchy and all that means, however, remains an essential element of all such powers. It is contradictory to suggest that the president of a republic, where the essential concept is that power springs from the people and not from the monarch, can be the same as that of a governor-general whose power springs from that of a constitutional monarch. A president will have a mandate to represent all Australians, no matter by what process they are appointed.

The president will thus have a responsibility to all Australians in our great Federation, not merely to those elites who might be involved in the process of appointment. Suggestions for appointment of a president, even by a two-thirds majority of both houses of the Commonwealth parliament jointly sitting, will mean that, given the strength of the Australian political party system, only a president favoured by those persons who control the political parties will ever have a hope of being elected. Are the people of Australia going to accept a president so representative of the power elites?

A direct plebiscite of the Australian people will, regardless of presidential powers, give to the president a mandate to go forth and promote his or her causes which may very well be in conflict with the government of the day. The words of a president- I repeat, `words of a president'- no matter how appointed, are going to be powerful weapons in the political process of Australia. This will be so no matter in what form the powers are given to a president.

I have heard an attempt to argue that a Queenslander or a person from an outlying state could become a president if they are good enough. However, not only will they have to be good enough; they will still have to get the numbers from the golden triangle. We all know that the only Queenslander to become Governor-General got there because it was convenient for the power elite to get him off the political stage. He fulfilled the role with distinction, but it is unlikely that the circumstances which led to his appointment would be repeated in relation to the election of a president. This is a bone the elite will never surrender.

Again, suggestions for the establishment of a council of elders or wise persons to control appointment and dismissal of a president are also fatally flawed. Once more, the self-perpetrating power elites would be in control. Where is the federal balance in all this? I have heard proposals at this Convention for various forms of filters in order to ensure that only proper and suitable people are considered for the role of president. How arrogant! How elitist! How full of their own self-importance are those who advance these proposals! And we have a number of these proposals. They obviously do not trust the Australian people if we are to abandon a constitutional monarchy. Advocates of a popular election point to Ireland as an example of success of this system and use it to justify their support for such a process in Australia. This is nonsensical as when I last looked at the counties of Ireland they had not formed a federation. Further, it is a pocket handkerchief sized country compared with this vast land with an appointed, not an elected upper house- a very important point to keep in mind.

In Australia's case, it is the federal nature of our system of government that both recognises our origins and strengthens our institutions of government and saves us from the pressures and tensions that so bedevil other countries. It is vital that this be preserved, irrespective of whether or not Australia moves to a republic.

Other federations have addressed this issue of creating a mechanism for the appointment of their head of state which gives recognition to all factors, particularly that of mainstreaming or maintaining the federal balance. In the United States of America the Federal Electoral College, in recognising different weightings depending on differing populations of states, gives a capacity for the smaller political units of the federation to have an influence on the appointment of the President. On the other hand, I am much attracted by the principles inherent in the mechanism adopted by the German federation. There the President is chosen from an electoral college, chosen by the parliaments of the German states as well as by the parliament of the federation. Thus, the views of all citizens, no matter where they might live, are able to be represented through the mechanism which has been devised.

We should give real attention at this Convention to devising a system for the election of a president which recognises the essential federal nature of Australia. Unless we do so, then this republic, should it come to pass, being so promoted by republicans, could be just the first republic and be followed over the coming decades by the second republic, the third republic, the fourth republic and so on. Under this model, there would be no need for an elitist nominating committee. All Australians, regardless of their status in life, would be able to nominate. An election would be by a simple majority, as are all other elections for public office in this country.

We do a disservice to the people whom we represent here if we do not acknowledge that a republic is a fundamental change that will flow from our abandonment of a constitutional monarchy. If that is so, then any president must be chosen in a way that not only satisfies a majority within Australia but also is acceptable by the minority as being properly representative of the essence of Australia.

Our federal system, which is the basis upon which Australia was formed as a nation, must therefore be fundamentally reflected in the discussions that take place at this Convention and any proposition that might ultimately be put to the Australian people. Our strength as a nation comes from not only the way in which power is divided between our respective levels of government but also the way in which it is dispersed across this vast nation. (Extension of time granted)

I fear, however, that we have already seen at this Convention and from the proponents of the introduction of a republic an attempt to attack the fundamental federal nature of Australia. If this is not so, then I look forward to propositions being advanced by those who argue the republican cause which will ensure that Australia will indeed remain one indissoluble federal Commonwealth.

Ladies and gentlemen, we must keep in mind that any changes at all will have a major effect upon the states and upon the people living in the states and the far flung parts of those states. Even though these points have not been considered to date, I implore you to give very careful consideration of these matters in the coming days.

DEPUTY CHAIRMAN- I am giving the call to Chris Gallus, but this slight pause gives me the opportunity to appeal once more to people not to have mobile phones turned on. It is a gross distraction and a gross discourtesy to the members of the Convention. If you have a mobile phone on your person, make sure it is turned off.

Brigadier GARLAND- Throw them out, Mr Deputy Chairman.

DEPUTY CHAIRMAN- I am not quite sure how far my power extends to the galleries. It is easier to throw out a member of the Convention. Chris Gallus, the member for Hindmarsh.

Mrs GALLUS- I would like the delegates here today to remember that they are the people's convention. Half of you today were elected by the people. It is important that you remember that because I get the very strong impression that there are agendas in this room that the people who voted for you would say, `That is not what we voted for.'

In particular, I say to the Australian Republican Movement, when people ticked the ballot boxes for the ARM they never dreamt they were ticking the boxes of a party that was going to oppose a popular election. If they had known that, if you had honestly gone to the people and said, `The Australian Republican Movement opposes popular election,' you would not have got the votes that you got and your numbers today would not be in that block, they would be considerably smaller. I want you to think in your consciences about the people who voted for you and what they expected from you.

To the delegates today and those in the public gallery, I think all of us are very much aware that the Australian public is disenchanted with our political system. We have evidence of a fragmenting society. Not only do we have a large and growing class of permanently unemployed and, therefore, a growing inequality in this society but we have a disenchantment with the structures of our society and the whole political process. If we in this election turn our backs on the people of Australia and say to them, `The politicians will choose your president,' they in turn will turn their backs on us and the political process in Australia. Think of this when you vote.

Think about if you went today to the people and asked them who Sir William Deane was how many would be able to tell you. Everybody in this room would, but I can tell you, as somebody who deals every single day with people, that the great majority of people who come to my office do not know who Sir William Deane is. The problem, if you do not have a popularly elected head of state, will be that the people will not know who their head of state is because they will have had no involvement in the process.

We have to draw the Australian society together and one way is to have an elected head of state chosen not by a select group, chosen not by politicians but chosen by the people who should choose the leaders in our society- that is, the people. Ask yourselves: are we really a democracy or are we not?

I have found here today that, despite having a somewhat more old-fashioned point of view, you might call it, the monarchists are more likely to consider this proposition than is the republican movement. I ask the members of the republican movement to look to what they stand for and what they were voted in for and ask themselves if the people who voted for them did indeed vote against the notion of an elected president because I think they will have to say honestly that they did not.

There are problems with an elected president, but the model that was produced here this morning does get over those problems. Denver Beanland, who spoke before me, said that one of the problems with an elected president is that the process becomes owned by the political parties or by someone of great wealth. That can be avoided. You simply say that we do not allow any paid advertising and there is publicly funded media both print and electronic.

A further objection to a popularly elected president is that people may not want to put themselves before the public and talk to the public through the media. Then do not make them. There is no reason why someone standing for president or head of state- I am sorry we have removed the word `president' from the model we were looking at- has to speak for themself. A nominating person can speak for them. For instance, if the Manufacturing Council was nominating to the appointments council someone for head of state and that person did not want to talk for themself then somebody from that council could appear and talk for them and explain why this person has these qualities.

Do not dismiss this out of hand simply because you want another model. Think of its advantages. Think that we can find a way of giving the people what they want and still build in all those safeguards that we are so scared of losing.

The model that I presented here today has the ultimate safeguard: that if the head of state goes beyond the powers that the Governor-General presently has or that are given in the Constitution, the House of Representatives, by an absolute vote- which is simply a majority of the members of the House of Representatives- can vote for dismissal and, on that advice, the appointing counsel dismisses the head of state.

Some will say that gives too much power to the Prime Minister and to the government. But, if they make this decision and it is not a decision that is approved by the people, next time they will have to go to a popular election where the people will tell the Prime Minister and the government what they think of them. So the safeguard is built in. This is the safest model you can have to stop a head of state exceeding the powers that he or she should have. Please think of that and do not dismiss it out of hand, because it provides what the people of Australia have asked us to provide- an elected head of state.

When we vote, as we will, on the resolutions, my first request to you is to vote this resolution past the first hurdle. Many of you are coming from a different position and will not want to support it in the final analysis, but it is a good model and it needs an opportunity to be debated. If you refuse it this opportunity by voting it out of this Convention at the very first step, then I put to you that you are betraying the faith of the people of Australia who voted for you to come here to the people's Convention to represent them and what they wanted.

Previous Page
Next Page

·=============== ===============·

Last updated: 21 October 2000