The Foundation for National Renewal   The Constitutional Convention of February 1998

Federal Election October 2004: Which Candidates Trust the People?

TRANSCRIPT OF PROCEEDINGS
Thursday, 5 February 1998
Page 12

Ms PANOPOULOS- Republicans have been trying for over 100 years to have an Australian republic. After a century, they are still not sure what sort of republic they want and how it will work. They are still divided amongst themselves. There are almost as many republican models as there are republican delegates to this convention. The stumbling block for republicans is that they have not identified any flaw in our present system. If they do not know what the problem is, how can they hope to provide any answers of substance? Yet a diversity of opinion, free speech, independence of thought and a larrikin disregard of power and authority is as Australian as Waltzing Matilda. The elitist corporatist approach to decision making, such a hallmark of the former Labor government, is choking this Convention.

ARM's reluctance to consider other republican points of view is a slap in the face to those republican voters who do not support them. Now is not the time for ARM to mimic the Labor Party's bullyboy tactics. Now is the time for humility and an end to hypocrisy.

One of ARM's arguments against the direct election of a president is that only political parties and large corporations will field successful political candidates. They say that such a method of selecting a president will effectively deny candidacy to our writers and poets. They may be fond of writers and poets, but obviously creative Australians of this calibre were not deemed good enough to be ARM candidates at this convention.

The ARM are obviously speaking from experience. We all saw their well-funded campaign to elect delegates to this Convention. We all saw the Labor Party machine locked into the ARM campaign. ARM's campaigns against a direct election are hypocritical and arrogant. Arrogant because they believe they own the republican debate. Just like the Labor Party in government, they assume they are always right and all other non-conservatives are wrong. They advocate compromise for everyone else.

There is never any real compromise from ARM. Their policy is one of brinkmanship. Mr Turnbull and ARM believe that all other republicans will eventually come to the fold. They seem to be blinded by their own glitz. Other republicans passionate about what they believe in are not about to sell out. They will not be seduced by your media profile, nor by your connections with big business and the Labor Party. They are the true republican believers. They are the grassroots of the republican movement. They are the real republicans. Listen to them- their experience in community affairs might help your feet touch the ground.

Mr Turnbull's disgraceful lies earlier today about ACM's position at this Convention is typical. We do not support the Keating-Turnbull republican model, and that is no secret. He should not make the quantum leap of logic and accuse us of wanting to derail this Convention. We have always said that the question of whether we change our system of government from a constitutional monarchy to a republic is an issue for the Australian people. They will decide, and, if the polls are any indication, the ARM model is not the people's choice.

Much has been said to highlight the dangers, deficiencies and uncertainties of both direct election and parliamentary election of a president. The McGarvie model, however, has received insufficient scrutiny. It is interesting that not one elected delegate to this Convention was elected on the McGarvie model. The main proponents of this model are the self-styled community leaders in this chamber. I appreciate Mr McGarvie's concerns about other republican models and honestly respect his attempt to retain the safeguards, flexibility and sophistication of our present system. He, however, has not succeeded.

His model does exactly what all other republican models do: the McGarvie model removes the very essence of our Constitution. This step of destroying the theoretical structure of the Constitution automatically distorts the very constitution that Mr McGarvie is trying to preserve. His apparently conservative republican model does not diminish the effect of removing the crown in the first instance.

If the McGarvie model is to be adopted, we will get a rigid structure and lose one of the greatest strengths of our constitution- we will lose its flexibility. We will also lose the non-controversial manner in which our head of state, the Governor-General, is appointed. The McGarvie model has also failed to present a flaw in our present system that will be fixed with his model.

We know how the present system works. We do not know how Mr McGarvie's model will work. His model removes a Queen who has no power except to appoint a Governor-General on the recommendation of the Prime Minister. It replaces the Queen with a committee of three people, comprising former governors-general and former High Court judges. It is a fantasy to claim that these three committee members will have the same position as the Queen. They will have real power and greater moral authority.

Let me give you one example. Imagine this: we have an unpopular Prime Minister, or even a Prime Minister who at best commands no emotion either way. On the one hand, you have three distinguished Australians unlikely to be tainted with the political partisanship of the Prime Minister.

(Extension of time granted) One of these three committee members may be a high profile former judge who throughout his life was involved in legal, political and community debate. He may be held in high regard for his progressive judgments. In fact, all three committee members may be of this calibre.

One day they receive the Prime Minister's nomination for the head of state. This committee does not agree with the Prime Minister. They try to convince him that his choice is not an appropriate appointment for a young republic. Alternatively, they may believe the appointment is too political.

The Prime Minister ignores their advice. After all, he was told that, by removing the Queen and replacing her with a committee, none of the strengths in our Constitution will be strengthened. The Prime Minister believed that the committee would perform the same function as the Crown. The McGarvie committee is not the Crown. They are not restrained by centuries of parliamentary and constitutional development. This committee will distort the separation of powers currently contained in our constitution. The Queen cannot resign in protest. The McGarvie committee can. It can be lobbied by outside interest groups.

The Prime Minister can alternatively appoint a new cooperative committee that will comply with his wishes. The damage, however, to the Prime Minister's authority will be significant, and the effect on the separation of powers doctrine will be far-reaching.

Those three committee members who resigned will probably have greater respect and moral clout in the community than the Prime Minister. The behaviour of these committee members is not guided by conventions because the conventions we presently have apply to a constitutional monarchy, not to government by committee.

The McGarvie model has tried to out-minimalise the minimalists. I ask: if you believe that a republic is so essential for Australia, why are you trying to play down its significance? Contrary to what has been said in this chamber, the McGarvie proposal will not retain our present system intact. It is perhaps unwittingly deceptive in disguising the magnitude of the change to our current constitutional arrangements.

Mr MOLLER- Mr Deputy Chairman, I raise a point of order. I do not wish to impede the passage of debate, but some of us stepped aside or did not put our names forward to speak this afternoon on the understanding that speakers would get five minutes. We now have about half an hour to get through 13 speakers. The past few speakers have spoken for 10 minutes each. In the interests of debate, can we please not grant extensions. Can speakers do as the Hon. Michael Hodgman did. If he can do it, the rest of you can. Just get through it all in five minutes so that we can get on to considering the resolutions this afternoon.

DEPUTY CHAIRMAN- First of all, I should explain that the arrangement is that as from 3.30 p.m. or thereabouts we will be considering the report of the Resolutions Group. It may be that you will have to talk with unparalleled celerity to get through. As you appreciate, we are already fighting for time. Your point is well noted. If people do not vote for it, they have to indicate very clearly that they do not grant an extension.

Mrs KERRY JONES- I begin by acknowledging the standing ovation given last night to my ACM colleague and friend Mr Neville Bonner. The emotion and passion of his speech has evoked an enormous amount of support from the Australian public. We thank you for that support. We thank Mr Bonner for inspiring us all to continue our very great cause.

No republican model that we have seen put up over the past two days of debate on dismissal and appointment measures up to the safeguards in our current constitutional arrangements. We have seen model after model; obviously, we will be voting on them very shortly. The Deputy Prime Minister, Mr Tim Fischer, eloquently described these models as mini, middy and maxi. Professor Blainey, in his speech yesterday, pointed out that the recent debate on the republic has concentrated more on trying to tear our current system apart than constructively building a real alternative republican model that can be tested at a real referendum, a referendum being the only poll that will count.

Mr Beazley, and Mr Peter Collins, whom we have just heard from, argue that a sporting event is reason enough to tear up our working Constitution. They think that hosting the Olympic Games is cause to move to a radically new system of government. I do not think the Australian people will agree.

Yesterday my ACM colleague Tom Bradley used the example of a sporting event to demonstrate the importance of an independent referee, the umpire who is above politics and who has the job of acting quickly and decisively in a crisis when the correct ruling is of utmost importance. The example Tom used, of course, was the issue of whether Mark Waugh was out or in. What would have been the chance of a decision without the impartial referee above any cricket politicking, or indeed international politics? The cricket umpire, as does our Governor-General, had the full power to make a quick decision from interpreting the rules. If the decision had depended on the popular vote of the crowd observing the match or a decision from a cricket board chaired by perhaps Mr McGarvie or even a council of eminent selectors, both South Africa and Australia could well be still standing on the Sydney cricket ground today.

There are many problems in the appointment and dismissal proposals, as evidenced by the plethora of different republican models on the table. We can learn from the experiences overseas- and we have not talked about the lessons to be learnt from overseas experiences nearly enough.

As I stated in my opening speech to this chamber, the Crown is integral to the Westminster system. Any attempt to graft a republic onto Westminster would produce a competition for power between the president and Prime Minister, as is seen in France; or it would produce a competition for power between the president, the Prime Minister and the Supreme Court, as in Pakistan; or it would strip the president of any powers, as in Ireland. Who dismisses whom? And where there is no dismissal mechanism, such as in Yugoslavia and Germany, world history has taught us that disintegration can end in disastrous civil or even world war.

In Brazil, from 1928 to 1993, only one president completed his term of office; the others either died in office, committed suicide or simply disappeared. Recently, the Italian government has been hindered by continual arguments between presidents and the Prime Minister over who has the most power over such basic administration issues as sacking their equivalent of our ABC. In India, in 1975, Prime Minister Indira Ghandi, assisted by a feeble president, threw hundreds of political prisoners into jail. I could go on and on but I will finish to allow the debate to move into the voting resolutions.

We have heard much debate regarding what is now termed the `McGarvie mini republican model' as being the most efficient in terms of dismissing an unruly president. In particular, Greg Craven keeps popping up expounding its virtues. Mr Tim Fischer in his speech, pointed out that a council of statesmen being lobbied by politicians and their staffers may have more difficulty with dismissing a president than with any of the other proposed models.

I point out to Mr McGarvie's supporters that delegates who stood to the people of their state for election to this Convention on the McGarvie model, such as Mr Mike Evans in Queensland, only attracted a few votes. I am here because I put myself for election to the people. The people gave me a mandate to measure each of the republican models against the safeguards of our current constitutional arrangements. None of the models measure up to that benchmark; none of them even come close.

Councillor LEESER- Over the last few days, wandering in and out of Kings Hall, delegates will have noticed that the founders of our nation are depicted around the walls of this historic building. In the words of Ecclesiasticus, `Let us now praise famous men. Their bodies are buried in peace but their names liveth for evermore.' Sadly, our founders' names are not household names; but, whilst their names may not be known, their legacy deserves to live on.

The great strength of our system is that it allows for a speedy appointment and dismissal of a Governor-General by the Queen on the advice of a Prime Minister- a system no other model is able to improve. I am going to deal today with the McGarvie model, the Craven compromise and popular election because I feel other models have been well dealt with already, although no model that I have seen meets the important litmus test of being an improvement on our current system.

The McGarvie model, with its council of eminent persons, presents its own problems. The McGarvie model creates some sort of `uberpresidency' whereby you have people who could no longer be on the High Court because of a constitutional amendment in 1977, which deems that they are too old to have the capacity to act as judges, but to whom this particular model would grant the capacity to act in a fundamentally important position.

The McGarvie model prompts the question that Juvenal asks us all: quis contradiet ipsos custodies- who will guard the guardians? Who will be prepared to serve on this particular council in the first place? Very few Australians would be prepared to be merely a cipher to a Prime Minister who wanted to get rid of a president. These people would not have the experience of a constitutional monarch who knows how he or she must act. As ex-lawyers they would want to make sure that they did not sack a president without some legal cause. They would want reason, argument, proof of misconduct. Furthermore, what sort of person would want to put them in the same sort of position as Sir John Kerr who, during his lifetime, received a beating for creating a dismissal, albeit of a different sort? The council would, as Kerr said to Whitlam, have to live with this.

Finally, there is no popular legitimacy for the McGarvie model. Kerry Jones just represented Mike Evans, who stood in Queensland as an independent republican on the McGarvie proposal. He got precisely 0.4 per cent- that is less than one per cent- of the total vote in Queensland. The main proponents of the McGarvie model are appointed delegates. Unlike some, I do not accept the McGarvie model, however great its particular proponent might be.

I wish now to turn to the Craven compromise, as I have termed it. This is the worst solution because Professor Craven has compromised republican models out of existence. He has said that the head of state should be appointed by a two-thirds joint sitting of parliament and removed by the McGarvie council of elders. It is the worst solution, because if you dismiss a president by the council you then have a long period of time where you would have no head of state while a series of backroom deals needed to be done with the opposition parties and independents who probably would be unwilling to negotiate- particularly if the previous head of state were dismissed due to perceived partisan advantage.

I also reject the Craven convention that we must back a republic now because if it fails at a referendum it will not go away until we have one. Any analysis of failed referenda shows that Professor Craven's logic is fundamentally flawed. The only defeated referendum to have been put a second time and carried was the territorial voters referendum, which was originally part of a composite proposal in the first place.

I do not wish to rubbish the popular election model because so many republicans have done this anyhow. I instead wish to make a plea to all those who voted for and are here to represent popular election. I believe that those who wanted a head of state elected by the people did not vote for it because they wanted to kick out the Queen but because they wanted to have a direct say in choosing their head of state.

Many people voted for the ARM because the ARM said that, whilst they preferred a two-thirds model, they said in their full page advertisements which I wish to table:

However we recognise that many Australians would prefer to see the Head of State directly elected by the people. Australian Republican Movement delegates will go to the Constitutional Convention with an open mind-

I repeat, an open mind-

aiming to reach an agreement with other delegates on these issues.

But on Friday 30 January, two days before the Convention started, Malcolm Turnbull in the Sydney Morning Herald was reported to have believed that election by a two-thirds majority was the only way to go and that popular election was a non-starter. Vive l'esprit ouvert- long live the open mind!

I say to the advocates of popular election: stick with your principles. Remember the people who elected you. They elected you because they wanted to vote for the president. If that model does not succeed, stick with the status quo. Save the Australian taxpayer some money. No more business class air fares, no more travel allowance, no more devastated forests to keep this Convention in paper. Remember the maxim of Shakespeare: above all to thine own self be true. (Extension of time granted)

In conclusion, if it is true to say that a camel is a horse designed by a committee, then surely a republic designed from this Convention is the ultimate Trojan camel. My fellow Australians, beware of republicans bearing gifts.

DEPUTY CHAIRMAN- Before I call Mr Doug Sutherland, there are two proxies for tomorrow. There is one from Edward O'Farrell nominating Professor David Flint for tomorrow and another from Marilyn Rodgers nominating Malcolm McKerras for tomorrow.

Mr SUTHERLAND- I would like to thank the people of New South Wales, my co-candidates who were successfully elected, and those who chose to stand with me and other members of my team who were not elected for the support that they gave to me.

I would like to reiterate the comment that Dr David Flint kindly made this morning at my request. I refer to page 141 of the proof Hansard of yesterday, where I am quoted as saying:

What about Keating?

I did not interject therefore I did not make that remark. The person who did has sought to have the Hansard proof altered.

I would have preferred to have come to this Convention talking about the president versus a constitutional monarch. I find the use of the term `head of state' as a bit of a sleight of hand and I support the leader of Australians for a Constitutional Monarchy, Lloyd Waddy QC, who said in his brilliant opening address on the first day, `Let us have an act of parliament where we designate the Governor-General as being the head of state,' because there is no such term in our Constitution, which is nearly 100 years old. That would clear up the matter and, at the same time, satisfy those who campaigned for having an Australian as head of state. We could also designate in that act of parliament that only an Australian citizen would be capable of holding that title. Both of those measures could be introduced without any change to the Constitution.

I wish to confine my remarks today, not to justifying the constitutional monarchy over the republic because I am hoping to have the opportunity of a major 15-minute speech early next week, but to what is the subject matter we are dealing with. I refer you to Working Group E, the proposition being the present arrangements for appointments and dismissals and the defects of suggested alternatives. May I reiterate what are self-evident, which are the advantages of the current system of a constitutional monarchy: the confidentiality in both appointment and replacement; the certainty in both appointment and replacement- and I use the word `replacement' advisedly rather than dismissal; the lack of tenure, which ensures the Governor-General does not enjoy a political power base in competition with the Prime Minister; and, most importantly from the political parties' point of view, the Prime Minister would remain the pre-eminent political figure in the nation as head of government. That is certainly the Labor ethos. I can speak with some authority, having been a member of that party for over 40 years. I suspect it is also the ethos of the Liberal and National parties.

I would like to turn to just a few of the models that are being debated and to those that have been predominantly debated over the past 3* days. These are: the two-thirds majority in the Commonwealth parliament, the popular vote and the Hon. Richard McGarvie's model.

The disadvantages of appointment and the fixed term of appointment in juxtaposition with the Prime Minister, who could axe tenure, would mean that there would be a tug-of-war or a competition between those two important positions. I have already referred to the pre-eminence of the position of Prime Minister. An elected president with a two-thirds majority of the Commonwealth parliament or by popular vote would see himself or herself as having a mandate and a political life of their own.

The McGarvie model has been adequately covered by Dame Leonie Kramer this morning, but I would repeat that the process of appointing the McGarvie model through a committee of elders or wise persons would not be as confidential or would run the risk of not being as confidential.

Turning to the other disadvantages on appointment, should the system of voting in the Senate change- and I was pleased to see that Professor Blainey picked this up- to what it was before 1949, you could have a broad sweep in both houses. This would probably suit Mr Keating because I suspect he referred to the Senate as being `unrepresentative swill', not out of disrespect for the Senate but because the system of proportional representation did not reflect the same voting change as did a broad sweep, with the mood of the electorate changing in the House of Representatives. If that happened you could have a winner take all situation where one political party would have the numbers, either on its own or in conjunction with a few Independents, to make the appointment.

You run the inherent risk with a popular vote- I know this may not sound terribly democratic, and certainly is not absolutely so- that many people would be constrained from offering themselves for election. Former governors-general have already made statements publicly to that effect. With an elected president, too, I think there is almost no way that you can preclude anyone at all from standing, nor prevent the political parties, which are legitimate organisations in our society, from endorsing and supporting candidates. But you run the inherent risk that votes could be bought, not necessarily by the political parties but by a system of patronage. I will not seek an amendment, out of courtesy to Brigadier Alf Garland, but I refer you to the dismissal items 1 to 6 that are listed in the paper.


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