The Foundation for National Renewal
  Working for a better Australia through constitutional reform

The Constitutional Convention of February 1998

A missed opportunity for much-needed reform.

TRANSCRIPT OF PROCEEDINGS
Thursday, 5 February 1998
Page 11

Mr COLLINS- I am the Liberal and coalition leader in the New South Wales parliament. I have been a republican since 1967. The first time I went on record in support of a Republic was 30 years ago. I am more a republican and more committed today than I have ever been. Like, I believe, a majority of you and a majority of the Australian people, I feel a sense of urgency. I feel that we must proceed to make this decision to take this final step in our constitutional evolution.

I have been unable to attend the last two days of this Convention. But, looking at this Convention from Sydney for the last two days, I ask where the spirit of goodwill has gone that was here on Monday. Where is the spirit of goodwill- that constructive attitude that we need so much to truly make a representative decision on behalf of the Australian people? We are not going to get through this Convention by bullying each other, by intimidating each other and by talking each other down and name-calling. We are going to make a constructive contribution to our constitutional evolution only if we agree to work together.

A century from now the Australian people will make a comparison; it is inevitable. They will make a comparison between what we have done in this Convention and what was done a century ago. A century ago, the Convention delegates had before them the whole agenda. They had nothing to guide them. They did not even have nationhood. We have all of that done for us. We are asked to make a very simple decision: do we or do we not move to have an Australian head of state? I emphatically support that. We are not asked to reinvent Australia. We are not asked to undertake a complete, national stocktake on every element of our Constitution. That is beyond the capacity of this Convention, try as we might, in the time available to us. We have limited time. If we wanted to explore the many issues that have been rightly raised by a number of delegates on all sides of this debate, we would need not simply this 10 days but another four or five conventions of this nature to undertake that sort of analysis.

Let me make a few quick points about the republic I support. First, I firmly support Australia becoming a republic as soon as possible and no later than the year 2001. When the Sydney Olympics occur in the year 2000, the Sydney Olympics will be opened by an Australian. I give that pledge. All of you know that there is a state election due next year. An Australian will open the Sydney Olympics regardless of the outcome of this Convention.

I support the retention of the title `Commonwealth of Australia' when we become a republic, as I support the retention of our Coat of Arms. We do not need to throw out- and this is the concern of many monarchists- our traditions, our heritage and our history. Those things can be retained and built upon. I support, at a state level, the retention of the position of Governor, and the role of Governor will be to the states what the role of Governor-General has been and the role of president will be to the Commonwealth. I believe that Governors should work from Government House. I do not believe that the current Governor of New South Wales is the last Governor of New South Wales.

Turning to the question of the presidency, I support the proposition that appointment should be by the government of the day and that it should be ratified by a two-thirds majority of both houses of parliament. Here we are having this debate about democratic election. For the newspapers that conduct the opinion polls I say: ask questions in greater detail. What do the Australian people say when they talk about popular election of the president? I think what they are saying is that they do not want to see that job politicised. I agree with the many speakers who have said that the one guaranteed result of democratic election will be that, sure as anything, you will get a politician each and every time.

Our parliaments- this federal parliament, and the state parliaments- have worked hard and largely succeeded in keeping politics out of the role of Governor-General and Governor. (Extension of time granted) That is something of which we as a nation can be proud. I do not think that we should exclude anyone from consideration as head of state under the model that we are discussing. There has been a lot of discussion here about politics. Politics is the lifeblood that courses through this nation. It is a fact of life. We are all involved in politics in one way or another.

I want to indicate my support for the proposition that the government of the day should nominate the president but that both houses of parliament must vote by two-thirds to support that nomination. That is very hard to achieve in a parliament. It means that, if an individual political party is putting up someone who is regarded as too partisan and unacceptable, you are never going to get a two-thirds majority in any parliament. It is a very hard thing to achieve. Look at our constitutional history. It happens very rarely.

To come back to where all of us began and where all of us must end, the catchcry that we have heard so often is that, if it's not broken, don't fix it. What is broken? It is not the Australian Constitution, whatever its shortcomings, nor the strength and commonsense of the Australian people. What is broken is the spell of the monarchy. Having a head of state, benign and respected as she is, who is the monarch of another country on the other side of the world, is both a farce and an anachronism. That is the fundamental question that this Convention must address and resolve. We can only resolve it in a spirit of goodwill and consensus.

Ms RAYNER- I speak today as the second part of the real republican ticket and I endorse the language of my colleague, Tim Costello. Our new arrangements must acknowledge the diversity and relative powerlessness of the Australian people. We have made it very clear that we support a republican model in which the people would choose their head of state. We accept that the powers of that head of state must not be left to any personal discretion and we also accept that there would be circumstances when the extent of those powers would suddenly seem uncertain, but we are determined that this model be discussed at this Convention.

We are also determined to make it clear that the so-called compromise- the McGarvie model, which is, in effect, for no change- is, with all due respect to Mr McGarvie, not acceptable in a newly emergent republic. We have made it clear we could not support a model which simply required the parliament to appoint the president because it would not involve the people as they wish and ought to be involved. Any process of nomination by a parliament, which is these days dominated by the executive and by the major political parties who are not accountable, is deeply political.

Popular support for an elected Australian head of state is founded on a- valid or not- distrust of politicians. This is understandable. Those who have been watching this Convention have been watching an awful lot of politicking going on. They have been seeing powerful men representing major institutional interests doing deals, playing with the procedures and exploiting the relative inexperience of some of us who are undecided or who are non-professional wheelers and dealers. The attempt to cut off debate on the second day of this Convention was not only a public relations disaster but also a classic example of a lack of what Alistair Mant calls `intelligent leadership'.

This Convention is a parliament, though, in the real sense. It is a place where people come to talk out, until they are ready to decide on, the important issues of the day. It is a place for democratic discussion. To have treated it as a faction meeting of the ALP or as a boardroom lunch at the Melbourne Club was profoundly foolish. The people who are already alienated from politicians will not vote for a change that is foisted on them, or voluntarily add to their sense of isolation or exclusion from politics.

DELEGATES INTERJECTING-

Ms RAYNER- I would be grateful if there was no further intervention in my speech, please. The important thing is that the people will not take a meaningless vote. They will not vote for a president or a head of state of any kind if they believe that person to be somehow politically partisan. That is one of the major arguments against an elected head of state; that a popular election will attract such people and will exclude the sorts of persons who do not want to be tainted with politics.

But one of the things we have not discussed is the Castan model. I am surprised that, given all the time we have spent on the McGarvie model, we have not thought of the simple proposal of the eminent constitutional lawyer, Ron Castan QC, to solve this dilemma. We should discuss it. Castan suggests that the Constitution should provide for a two-stage process for selection of the head of state. First he proposed that parliament should nominate its candidate chosen by a two-thirds majority of both houses. Then, he says, there should be an election. One candidate would be the candidate chosen by the Australian parliament- and there might be others; any other Australian who is nominated by, say, one per cent of the voters on the electoral roll at the most recent federal election. In practice, he believes, the parliamentary candidate would either be the only one or would certainly be the one who would win any election, because that candidate would have bipartisan support and would not be opposed.

Any overtly political candidate chosen by the parliament would be defeated. The Australian people would retain their reserve power- the power to reject the parliament's candidate. Sure, it is true that if you leave the one per cent option open- the nominees from the floor, so to speak; of the people- then ordinary people could nominate themselves under this model. Perhaps they would be members of the Shooters Party or members of other groups that might be unpopular from time to time, but that is what democracy is about.

It may be argued that the nomination process would be so costly that only the wealthy and well connected could put themselves forward. In that case I suggest the Bob Ellis suggestion: since the choice of a president is a matter of state, we should pay for it and make it a crime to spend any more. (Extension of time granted)

The Bob Ellis suggestion seems remarkably pragmatic and sensible. It may be hard to enforce, as the US experience shows, but it is a compromise that ought to be discussed. You do have a number of models about direct election and the closest to the Castan model is Working Group F, the one which says that two-thirds of the joint sitting of federal parliament should elect a head of state appointment body- a presidential council- that is gender balanced, composed of people who have the respect of the Australian people and which reflects Australians in all their diversity. That body would accept nominations and, from those, would select a number of appropriate candidates whose names would be put to the election and would also have a dismissal power.

It strikes me that this is a compromise that should be seriously discussed because it has elements of the ARM model, the McGarvie model and the Elect the President model. We must consider these issues seriously because the key to the secure operation of our democratic system lies in the people's feeling that they are selecting or endorsing, with a vote that matters, their president. The key matter is this: the head of state must not be a political person. The head of state must have bipartisan support. She must have the endorsement of the Australian people, either by being elected unopposed or by a massive majority. She must be the sort of person who can embody our hopes and fears and respect our diversity.

Can we move on and continue to discuss the codification of reserve powers in the situations that might give rise to a need to use them in a constructive and intelligent way? The thing I am most afraid of with this Convention is that we act unimaginatively and that we therefore do not develop and combine ideas in public debate to ensure the best outcome. We will not do this if we become engaged in adversarial and, if I may say so, boyish politics. A compromise that satisfies institutional networks will not be bought by the public. A compromise bullied out of a slim majority of delegates will not have the moral or political spirit to bring a republic into existence- and that is what we are here for.

Mr McGARVIE- This already highly successful Convention has propelled the republic debate from wallowing in the world of theory, where it was for the first five years, into the world of reality. For five years, the elected republican president models, particularly in the last few years, were hardly criticised. I might be regarded as an exception to that. But they were put to the people without the people having the opportunity to become aware of their defects. The important thing, as I mentioned in my speech on Monday, is to resolve this republic debate so that we do not move into the destabilising situation that unfortunately has overtaken Canada. We will not resolve the debate unless a model is put to Australians in a referendum in which they can choose between the present system and a system that is at least as good as a republic.

On Australia Day I wrote in the Sydney Daily Telegraph that now that the debate was starting to get out to the people, public opinion would force the sponsors of the elected republican president models to engage in a great deal of patching and reconstruction in order to overcome their obvious inherent defects. We saw patch one on the first day of the Convention when Mr Turnbull indicated that the most gross and obvious danger in the parliamentary model would be replaced by dismissal by a majority of the lower house.

I pointed out later that day that that only covered half the problem; it did not cover the ability of the head of state- the president in that model- to dissolve, prorogue or adjourn parliament. I pointed that out on 1 May; Professor Winterton had pointed that out in early November. On Wednesday came the second patch: that there would be a provision that between the notice and the vote the head of state could not dismiss the Prime Minister or dissolve parliament. How many have ever seen constitutions made on the run in that way before?

I do not need to remind those who have been members of the House in which we stand that any new provision which is inserted will be used for political advantage by whichever party can use it. I do not need to go into any detail to point out the way in which that could be used by a Prime Minister who wanted to take certain action on a particular position. This idea that we are smarter than earlier generations, that we can dispense with the sensible procedures that have been worked by trial and error over the years by putting in new rules like this, will do nothing but turn Australian politics into a grand game of snakes and ladders with many more snakes than ladders.

Under that system what is there to cover the situation so cogently pointed out by the South Australian Constitutional Advisory Council- incidentally, the only public inquiry in Australia which made recommendations and naturally made a recommendation almost identical to the model that I advance- of what happens if you have a head of state who suffers mental or intellectual deterioration? Whereas it can all be done quietly now, there would be a sitting of parliament, and the cruelty to the family of that is pointed out by that council. Another patch would be necessary there, but it is still a very leaky ship and we can expect many more patches before we are through.

Mandate: let us here differentiate between the theory and what will happen. The theory is that two-thirds of the members of a joint sitting will sit up, scratch their heads and say, `Is this person worthy to become president?' What will happen, of course, is that there will be a meeting and a deal between the Prime Minister and the Leader of the Opposition, and political deals are always far more complex than appears. (Extension of time granted) Because it will have to draw the support of a two-thirds majority it will have to go to the party rooms. Once it goes to the party rooms it is out in the media that night- I will come back to that in a moment.

The mandate is not going to be a mandate coming from people making up their minds in a sitting; it is going to be combed through in the party rooms. That South Australian report points out how South Australia, as was mentioned earlier, got far more diverse Governors through a Premier being able to decide alone than if the person had had to be counted through the vetoes of the opposition and all members of the parliament.

The mandate that will come from it is not a two-thirds mandate; it is virtually a 100 per cent mandate. If the government is bound to comply with it, so is the opposition. That is an enormous mandate. It is very easy for us to think that there aren't these balances, but there are. One of the things I learnt most rapidly was that balances apply in that situation.

I would like to close on this point: it is very easy to assume that we will get people like Zelman Cowen and Ninian Stephen unless we think about it. Inquiries will be an inherent part of this system. In this media powerful community it is totally unreal to think that there will not be parliamentary inquiries into the suitability of the nominee as there are for judges of the Supreme Court of the United States. There is an irresistible impulse in many people to get themselves on television. The best way of getting on television is to make an allegation of outrageous conduct against a person of high reputation.

I wish to say something which, mainly because of my age, I am qualified to put forward. When you become a governor-general or governor, typically you are about 65. By the time you get to 65, you are vain enough to think you have a reputation. You are rather jealous of it. Knowing what would occur, knowing what would come from opponents of the Prime Minister or from publicity seekers, who would put themselves in for that? If it does not come through a parliamentary inquiry, it will come through media saturation.

Let me say very clearly that I would not dream of allowing my name to go forward. I realise that some would think that would be a manifold advantage over any other system. I would not dream of that. I have seven grandchildren. I would not allow my name to go forward. Read Federation under strain to find out the realities. Ask someone who served in this parliament. Read Primary colours to see the way it is going, and pause.

When this is all brought out under the scrutiny of a referendum campaign, which is all revealing, what hope is there of a model like that resolving the issue, allowing those who are republicans at heart to vote for a republic? Thank you for your toleration, Mr Deputy Chairman and delegates.


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Last updated: 21 October 2000