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Constitutional Convention: Introduction  The Constitutional Convention of February 1998

Federal Election October 2004:
Which Candidates Trust the People?

TRANSCRIPT OF PROCEEDINGS
Thursday, 5 February 1998
Page 15

WORKING GROUP A

Popular election with open nominations

Professor PATRICK O'BRIEN- I move:

 

That the resolution of Working Group A be referred to the Resolutions Group.

 

On behalf of Working Group A, I accept the foreshadowed amendments.

 

Ms RAYNER- I second the motion.

 

CHAIRMAN- To that resolution, Mr Bullmore has a package of amendments. Do I understand that you accept those amendments?

 

Professor PATRICK O'BRIEN- Yes.

 

CHAIRMAN- I am not too sure how that works out. We have too many amendments to consider. I know that in the normal course you would. Professor O'Brien, you are accepting that that package goes on behalf of Working Group A. Is that as I understand it? You are accepting that Mr Bullmore's proposals be included in your motion for Working Group A?

 

Professor PATRICK O'BRIEN- Yes.

 

CHAIRMAN- The amendments have been adopted by the mover and the seconder, so they become part of Working Group A's report. To Working Group A's report, I then have a second group of amendments which are moved by Mr Hayden. I invite Mr Hayden to speak to his amendments. It would facilitate things if each of the amendments are moved; otherwise you are not going to have any idea of what degree of support they have. I go back and ask Mr Bullmore to formally move it and will allow him a few minutes to speak on them. We will get an idea of the support there is for them. That is the whole concept; otherwise the Resolutions Group is not going to have any idea of which package they really need to give major concern to. I am sorry, Mr Hayden, but this is a better way to proceed. Mr Bullmore, speak briefly to your amendments and then we will submit them.

 

Mr BULLMORE- The amendments are as follows:

 

1. The motions on the second page of Working Group A's proposal should be renumbered so that:

(a) becomes (d), (b) becomes (e), (c) becomes (f) and (d) becomes (g).

The following motions will be numbered accordingly:

(f) There shall be no less than one and no more than five candidates nominated by the Presidential Nominating Council.

(g) A petition of one per cent of qualified Commonwealth electors nominating a single candidate may cause a candidate to be added to the ballot in spite of the Presidential Nominating Council subject only to a veto being voted for by two-thirds of the Council.

(h) The Head of State shall be directly elected by the Australian people.

(i) The Head of State may be impeached for breaches of the Constitution or for criminal offences that may be tried on indictment by the following procedure:

(1) The houses of parliament may vote to indict the Head of State at

a joint sitting convened by the President of the Senate and the

Speaker of the House of Representatives.

(2) The High Court will try the indictment according to law.

(3) If the case is approved by the High Court then the Head

of State shall lose their commission and shall be ineligible for any further term of office.

 

CHAIRMAN- I want to try to accelerate consideration. I did not propose to allow anybody except the mover of the motion to speak to them.

 

Mr HODGMAN- I will be very brief.

 

CHAIRMAN- Are you seconding the amendment?

 

Mr HODGMAN- No, I am raising a matter of the drafting-

 

CHAIRMAN- I would like the amendment to be seconded first. May I have a seconder please?

 

Ms DEVINE- I second the amendment.

 

Mr HODGMAN- I will be very quick. We have a former and present Attorney on this group. I say to Mr Bullmore that in final paragraph (3) he says `if the case is approved by the High Court'. When people are indicted, they are either acquitted or convicted. It is a matter of drafting, but it is important.

 

CHAIRMAN- Thank you, Mr Hodgman. We are not going to argue them again now; we have spent the day talking about them.

 

Mr HODGMAN- I am not arguing; I am simply saying-

 

CHAIRMAN- Is everyone ready to vote on the amendment moved by Mr Bullmore? I wish to ensure that you understand that you have multiple votes. There are a number of amendments that are going to be sent to the Resolutions Group. I am trying to get a bit of an indication of what support there is for those moved by Mr Bullmore. The amendment is lost, but I think we should take a count because of the nature of the reference.

Councillor TULLY- Would it not be carried if 25 per cent were voting in favour of it?

 

CHAIRMAN- It would not be carried but the vote would be recorded. You cannot carry something with a 25 per cent majority in the school I went to.

 

Councillor TULLY- You can if you're in the Queensland National Party.

 

CHAIRMAN- And I come from the National Party, somebody said.

 

Mr TURNBULL- On a point of order, are we voting for it to go forward or are we voting to approve it? There is a very big difference?

 

CHAIRMAN- There is a difference. Technically, we are voting on it. It will go forward if there are 25 per cent in favour of it. We are voting in favour of it. It does not mean that if you get 26 per cent it will go forward; but we need to vote in favour of the motion because that is the question that has been put to me.

 

Mr LEO McLEAY- My understanding is that you declared the motion lost. However, you do not need to have a vote for it to go forward because there is a provision in the rules that we decided on that says `If, in the opinion of the Chair, 25 per cent were in favour of it . . . ' So you could say that it was lost but it will go forward, and then we might all move on a bit.

 

CHAIRMAN- We decided earlier that, in order to give the Resolutions Group some assistance, they will need to know the vote. You do not believe you need it?

 

Mr GARETH EVANS- We have eyes to see. We can see evenly.

 

CHAIRMAN- The members of the Resolutions Group believe they can see the extent of the support. If they are happy, then I am happy to do it. That motion goes forward but is lost on the numbers.

Amendment lost, but referred to the Resolutions Group.

 

Mr HAYDEN- I move:

 

Delete all words after "That this Convention resolve that the arrangements applying to the election of the Head of State should be:"

and insert:

"That any Australian citizen of voting age and enrolled as a voter for a federal division is eligible to nominate as a candidate for election as President of The Republic of Australia.

The President will be elected by a national poll at which all voters enrolled for federal divisions will be eligible to vote.

The termination of a President's tenure for misconduct may occur on a resolution moved by the Prime Minister or his deputy at a joint sitting of the House of Parliament and supported by 50 per cent of the vote plus one more vote.

The President could not hold office for more than three consecutive parliamentary terms.

 

I propose to delete the last sentence providing for a term of office and I propose to include the following new paragraph after the first paragraph:

 

A candidate for election as President will have to lodge a petition signed by at least one per cent of voters enrolled on federal divisional rolls for the Commonwealth of Australia at the time of submitting the nomination for election.

 

However, I should mention that, immediately following the meeting of the Resolutions Group yesterday, I ran into trouble. I not only lost my seconder but also could not find any seconders, although I had been able to find a lot in the morning. So I signal that, if it is opportune, I will be seeking to inject this into processes a little later. It is not dead but the prognosis is not good.

 

CHAIRMAN- Is the motion seconded?

 

Mr STONE- I second the motion.

 

Mr HAYDEN- I propose this amendment for these reasons. It offers a direct election by all eligible voters in the Commonwealth of their president in the event of this country becoming a republic. It would allow any Australian citizen of voting age and enrolled as a voter to nominate for election as president at a national poll. It proposes that all eligible voters can vote at that poll. It allows a termination of the president's tenure for misconduct on a resolution moved by the Prime Minister or his deputy at a joint sitting of the houses of parliament and supported by 50 per cent of the vote plus one more vote. It also allows, if not the elimination, the enormous reduction of vexatious, crank-type nominations which occur, for instance, at Senate elections by requiring a petition of at least one per cent of the voters enrolled in the Commonwealth of Australia.

The important point for me in this is that, if there were misconduct- which largely would be political misconduct- by the president, then the Prime Minister, at a joint sitting of the houses of parliament, could move a resolution and if it were supported by 50 per cent of the vote plus one more vote the president could be dismissed from office.

I have repeatedly stated, not just at this conference but over the past several years, that the two areas where I have concerns are reserve powers and their misuse and the need for limited codification rather than comprehensive codification. I believe they were adequately addressed for me in working party resolution 4 earlier this week on the matter of reserve powers.

The second area where I have concerns is the need to have decisive and quickly effected action available to the government to ensure that if a person who is president misbehaves in some way- and there is no doubt that direct election provides the opportunity for populists to get out of hand- then the Prime Minister, on behalf of the government, can act decisively and quickly to get rid of that person.

My areas of concern about weaknesses that might arise from change are adequately answered by the working party 4 resolution from Professor Winterton of earlier this week and what I am proposing here.

 

CHAIRMAN- You have heard the proposals. The question we will put will be whether or not you agree. If there are more than 25 per cent in my view and noted by the Resolutions Group we will then refer it.

 

Brigadier GARLAND- I have a question to clarify something in everybody's minds. The proposal is a joint sitting of parliament, supported by 50 per cent of the vote plus one more vote. Does that mean that 50 per cent of those people who are in the chamber when the vote is taken or 50 per cent of the whole parliament?

 

Mr HAYDEN- Leo McLeay often counted 50 per cent of those who were not there when he was Speaker of the House, so I suppose if it worked then-

 

Mr Leo McLeay- It's 50 per cent of the people there.

 

Mr HAYDEN- At least he got away with it in the Labor Party in Sussex Street.

 

Mr Leo McLeay- You lost each time!

 

Mr HAYDEN- I believe it should be 50 per cent plus one of those who are members of House of Representatives and the Senate, and they should be there.

 

CHAIRMAN- Can I put the proposition? What we will do is to vote on this question- that is, Mr Hayden's amendment- and if there are 25 per cent or more it goes to the Resolutions Group.

 

Mr HAYDEN- The words `The President could not hold office for more than three consecutive parliamentary terms' should be deleted. There should be the insertion of another provision:

 

A candidate for election as President will have to lodge a petition signed by at least one per cent of voters enrolled on federal divisional rolls for the Commonwealth of Australia at the time of submitting the nomination for election.

 

CHAIRMAN- We will ensure that, if the motion is supported, the words as Mr Hayden has just identified are added to it.

Amendment lost, but referred to the Resolutions Group.

 

Mr JOHNSTON- I move the following amendment to the Working Group A resolution on popular election with open nominations:

 

After "(a) Any individual would be able to nominate themselves for the position of President to the Presidential Nominating Council"

Add:

"providing at least 5 referrers."

 

Sir DAVID SMITH- I second the motion.

 

Mr JOHNSTON- Considering Mr Hayden's amendment, I do not see any point in going ahead with the first part of my amendment because I think Mr Hayden's amendment addresses that.

Another concern is with the separation of powers. We are putting High Court judges or Supreme Court judges on this presidential council and I think that does undermine the separation of powers. I have spoken about that before.

My other point is about the size of the body. We have seen how difficult it is to get consensus from 152 people and I do not think you would find it any easier in a body of 100. My final amendment relates to the fact that if the people have signed a petition, if there are sufficient people to have that petition considered and if we want to have popular involvement then the council really should not have the power to veto somebody's consideration of someone whom the people have decided they want considered. That is why I am moving those amendments.

CHAIRMAN- Where the text says `deletion', it means that the portion that Mr Johnston wishes to be deleted has been taken out. That is what the deletion means. Otherwise, Working Group A's report is modified, subject to the first part apparently being satisfied by Mr Hayden's reference.

Amendment lost.

 

Ms MARY KELLY- I move:

 

That any selection/appointment processes for a new Head of State should ensure that women and men are equally involved to the greatest extent possible; and should ensure that women's chances of occupying the position are substantively equal to those of men.

 

I move this amendment for the same reason as I moved the resolution on day one that dealt with equal participation in our own processes, a resolution which I think has been generously embraced and implemented by the delegates here. This amendment covers not just processes but outcomes and asks that, whatever it is that comes out of this series of deliberations, care be taken to accommodate women's needs.

Certainly that means taking into account things like women's underrepresentation in political parties and their inferior financial power. This might mean, for example, ensuring any bodies or councils are balanced, that being a candidate is affordable, that where nominations are short-listed attention is paid to the balance there, that if it is considered necessary the gender of the person occupying the office be alternated, and so on.

The phrase `substantively equal' has a meaning. It is based on the well-known notion in Australia that treating all people the same does not result in treating them equally and that we need to take into account past and current disadvantage if we want equal outcomes. I commend the amendment to delegates.

 

Ms THOMPSON- I second the amendment.

 

Mr HAYDEN- Should it happen that there is direct election, the proposition that there be alternating gender representation of the presidency seems somewhat impractical to me. I think that the resolution ought to be redrafted to reflect that.

 

CHAIRMAN- We take note of the submission that you have made, Mr Hayden.

Amendment carried.

 

Ms RAYNER- I move:

 

After paragraph (b) insert:

"(ba) Any voter may stand for election to the Presidential Nominating Council

(bb) The Presidential Nominating Council will have the sole function of appointing a President from the persons who are nominated by the public, by whatever means is determined by the Council."

After subparagraph (c)(i) insert:

    (ii) The Presidential Nominating Council will consist of 20 persons elected by the people and a Chairperson being the retiring Head of State.
    (iii) Three persons will be elected from each State and one person from the Northern Territory and the ACT

 

Reverend TIM COSTELLO- I second the amendment.

 

Ms RAYNER- The purpose of this amendment is to facilitate the operation of the proposed Presidential Nominating Council. I would ask this meeting to support it being referred to the resolutions group.

Amendment carried.

CHAIRMAN- I think Working Group A's report then goes off anyway, as I understand these new rules. This is the funniest way I have put resolutions. I think as we go, having moved those amendments, I had better take a vote. I put Working Group A's proposition, with its several amendments- 1, 2, 3 and 4- being referred to the Resolutions Group, subject to an intervention.

 

Dr COCCHIARO- I have given the clerk this amendment. I move:

 

Working Group A, subparagraph (c)(ii), immediately after "Aboriginal and Torres Strait Islander Commission", add: "Multicultural and Ethnic Community Council in each state".

 

The reason for that is that there is an umbrella group of ethnic groups that represents hundreds of organisations.

 

CHAIRMAN- Could I suggest that you put that in writing, get a seconder, send it to the Resolutions Group-

 

Dr COCCHIARO- I have already done that.

 

CHAIRMAN- If it goes through we can refer it to the Resolutions Group. We are voting on Working Group A's report with its several amendments for the Resolutions Group. I put the question that Working Group A's resolution, as amended, be referred to the Resolutions Group.

Motion carried.

 

CHAIRMAN- Working Group A's report will be submitted to the Resolutions Group and Dr Cocchiaro's proposal will be sent to the Resolutions Group with it.

 

WORKING GROUP B

Popular election from a small group of nominees chosen by Parliament

Dr GALLOP- I move:

 

That the resolution of Working Group B be referred to the Resolutions Group.

 

Mr WRAN- I second that motion.

 

Dr GALLOP- I would like to make a quick comment on Working Group B's report. Essentially, Working Group B determined that should we have a direct election of our future head of state a particular mechanism should be set up for nominating three candidates for that election. That mechanism would be based upon representatives from the Commonwealth and each of the state and territory parliaments of Australia. So the essential concept is to use our parliamentary system, not only at the national level but also at the state and territory levels, to provide a nominating panel. Since the report was forwarded to the Convention, some delegates have come to me with some suggested-

 

CHAIRMAN- I did not intend to allow you to speak to the motion.

 

Dr GALLOP- I just wanted to comment on the amendments.

 

CHAIRMAN- Hurry, please.

 

Dr GALLOP- I will. I just wanted to say that the amendments are in the spirit of the original motion. Should you believe that the parliaments should be used to form the basis of a nominating panel, it seems to me that it is worthy to have those forwarded as well to the Resolutions Committee.

 

CHAIRMAN- The first amendments are to be moved by Mr Andrew Gunter.

 

Mr GUNTER- I move:

 

That the following words be inserted following the resolution as moved:

"OR II

    * each of-
    (i) the Parliament of the Commonwealth;

    (ii) the parliaments of each of the States that have adopted a republican constitutional form; and

    (iii) the assemblies of each of the Territories represented in the Parliament of the Commonwealth-

    severally, by a two-thirds majority of the whole number of a joint or unicameral sitting, select an Australian citizen as candidate to be put to national election of the head of state by the people;

    * the election of the head of state by the people from amongst the (up to) nine candidates selected above be conducted by optional preferential voting;

    * that the Parliaments and assemblies be given power to make laws in relation to nomination processes for the selection of Australian citizens to be candidates for the office of head of state.

    * removal of the head of state be able to occur only by a vote of an absolute majority of either the Senate of the House of Representatives following a resolution to remove the head of state for stated misbehaviour passed by the other house by an absolute majority.

 

Professor PATRICK O'BRIEN- I second the motion.

 

Mr GUNTER- The purpose of this amendment was to deal with something that was raised in group B, which I was unable to attend. It creates an option that is somewhere between group B's and group F's resolutions and it matches the character of popular election being similar to the House of Representatives, and great weight given to New South Wales and Victoria. The nomination process, on the other hand, under this amendment would allow each of the states and represented Territories to put forward a candidate. That would create a maximum of nine candidates and would allow proper option for those from the smaller states to be involved.

 

CHAIRMAN- As a point of explanation, you have two alternatives. What do we do? Do we put both up separately? What would you propose?

 

Mr GUNTER- It is proposed to put them up in addition. So, effectively, there would be a resolution 1 and resolution 2 from group B.

 

CHAIRMAN- So you want them put as two separate resolutions or put as one resolution and go through as alternatives for the resolution?

Mr GUNTER- That is in part up to Dr Gallop.

 

CHAIRMAN- Right. We will put it forward as one resolution and the Resolutions Group will then consider it. Amendments carried.

 

CHAIRMAN- The next amendment is moved by Ms Kelly. That one has already been adopted, so that will be taken into account by the Resolutions Group. The question is that Working Group B's resolution, as amended, be carried and referred to the Resolutions Group.

Motion carried.

 

WORKING GROUP C

Parliamentary appointment by a special majority

Dr TEAGUE- As the chairman of that working group, I move:

 

That the resolution of Working Group C be referred to the Resolutions Group.

 

Mr VIZARD- I second the motion.

 

Dr TEAGUE- I summarise this as the parliamentary model of support by two-thirds majority for appointment on the motion by the Prime Minister and dismissal by a simple majority in the House of Representatives alone. There are other clauses that are clearly set out on that one page outlining resolution C.

There are seven amendments that are about to be put. Those seven amendments all add to or subtract from resolution C moved by the working group. I will be interested to see whether any have 25 per cent support and can be considered by the Resolutions Group. It is very much my preference that Working Group C's resolution be unamended. I flag only that a number of us are interested in the states proposal of Delegate Beanland. We are interested in the very simple proposal that Delegate Stott-Despoja has flagged. The other amendments we will only have to be considering, I think, if the Resolutions Committee brings them back. We would like to see a clean support by this Convention of resolution C.

 

Mr BEANLAND- I move the following amendment:

 

Clause 1- Delete all words from "on the nomination of the Prime Minister"

 
Insert "by a federal electoral college comprising representatives of the parliaments of the Commonwealth and of the states"

Clause 2- Delete.

Clause 3- Delete.

Clause 6- After "representatives" add "and of the Senate at a joint sitting"

 

I suggest this be handled in two parts. Clauses 1, 2 and 3 are to do the model which I proposed yesterday. Clause 6 deals with a separate matter. It deals with the factor of the dismissal of the president. Very briefly, I outlined this in some detail yesterday. It is a model which I call the federation model. It takes into account the federal system that we have in this nation. I am somewhat surprised to see that from those people who drew up these proposals initially there was no federation model included. Some overseas countries, particularly Germany, have a federation model. I think we need to take into account the vast distances of this country, the history of this land of ours, the fact that there are differences of opinion and differences of feeling, and people from the states need to have some say in who is going forward as president.

Also, this will do away the elitist proposals. I notice that in many of these models that are proposed there are all sorts of committees and types of committees which have to sieve through the candidates that are put up and that have to decide who goes forward. It is the same in the popular election method; it is the same in a number of others. This proposal will allow all the candidates to go forward to this federation model and then the delegates from the states and the Commonwealth parliament could sit down, go through them and then make their decisions accordingly. I think it speaks for itself. I have moved it here simply because there is nowhere else in this program or in these proposals that we have here that I can move this amendment. As I say, I suggest that you handle it in two parts. Clauses 1, 2 and 3 are separate from 6.

CHAIRMAN- Thank you, Mr Beanland. As you will note from Working Group C report, Mr Beanland has moved a deletion of clauses 2 and 3. So where `deletion' in your amended script states that, what it means is that 2 and 3 of the working group report have been deleted. Is there a seconder for Mr Beanland's amendment?

 

Councillor MALONEY- I second the amendment.

 

CHAIRMAN- I will put Mr Beanland's amendment in two parts- appointment and dismissal. I will try to give some idea as to whether the amendments have been won or lost as well as whether they will be referred.

Amendment lost.

 

CHAIRMAN- The amendment is lost and is not referred as there is not 25 per cent support.

 

Mr ELLIOT- I move:

 

That:

    (i) paragraph 1 be amended by deleting ". . . by a joint sitting of the Commonwealth Parliament" and substituting "by the Senate and by the House of Representatives";

    (ii) paragraph 2 be amended by deleting "a special majority, being a two-thirds majority of the members present at the joint sitting" and substituting "a special majority in each case, being a two-thirds majority of the members of that house present".

    (iii) paragraph 3 be amended to insert after "Prime Minister" the words "and his representative in the Senate".

 

Mr GUNTER- I second the amendment.

 

Mr ELLIOT- What we were trying to achieve in the resolution that originally came from Working Group C was to ensure that the person who took the role of head of state was not going to be party partisan political and, by using the special majority, that was what we were hoping to achieve.

My concern is that there will be times when, if we go into a joint sitting, the very large majority of the government in the lower house will mean that they will have a two-thirds majority in their own right. It will be an extremely rare event, but we had that event in South Australia after the state election before last. That is not the case any more, but we did have that event. It will happen. If this Constitution is going to be around for another few hundred years, if we are fair dinkum about ensuring that we do not have a person who is party political, then the special majority of a joint sitting is not enough.

The only argument that has been put forward for the joint sitting was its symbolism. That is the only argument for it. If we have to choose between practical effect and symbolism, then sensibly we have to go for the practical effect. There will be no significant delay in the process. The numbers will be wrapped up before it ever goes into the parliament. It is a matter of one sitting following the other, and it will happen in a morning.

Amendment lost.

 

Mr HABER- I move amendment No. 3:

 

That:

    (i) between paragraph 6 and the heading "Clarifying Comments", the following be inserted:
    "Consequential Requirements

    6A. That a provision requiring the Senate to be elected by the single transferable vote (quota-preferential) form of proportional representation be inserted in the Constitution."

    (ii) following paragraph 7, the following be inserted:

    "7A. Proportional Representation should be entrenched for Senate elections on the grounds that other electoral systems would periodically produce lopsided (greater than two-thirds) Senate majorities for one party or group, as occurred on several occasions between 1901 and 1949, thus allowing a partisan appointment to be made more easily."

 

Mr GUNTER- I second the amendment.

 

Mr HABER- In speaking to this amendment, I wish to point out, as I highlighted in my speech yesterday, that we have now counted six occasions where the two-thirds test on bipartisan support would not have worked unless you entrench the current system of proportional representation applying to the upper house in the Constitution. For this working group resolution to have any validity, I suggest we move for incorporation of proportional representation into the Senate count to ensure a bipartisan two-thirds majority.

CHAIRMAN- Thank you, Mr Haber.

 

Mr TURNBULL- Is it possible to speak against an amendment?

 

CHAIRMAN- I do not want people to say too much; we are not going to get through them all in the time available. We only have 10 minutes to do the rest of them. I do not think we are going to get them done. We will vote on Mr Haber's amendment.

Amendment lost.

 

CHAIRMAN- Mr Johnston, may we move to your amendment, please.

 

Mr JOHNSTON- I move:

 

Delete 1, 8 and 9 in Resolutions of Working Group C.

 

Sir DAVID SMITH- I second the amendment.

 

Mr JOHNSTON- Considering the amendment lost by Mr Beanland earlier it would be best and quicker to withdraw the deletion of point 2. Other than that I am still very unconvinced about having the president elected by parliament. My other deletions relate to, first, the fact that if we want popular involvement I do not know why the committee would vote against the possibility of the Prime Minister receiving petitions from the people. It seems very anti-republican and very anti-citizen involvement. The final point is, as I have said before, that I am against political correctness. There are plenty of good men and good women who could stand for president if they wanted to but I do not think it should be enforced in law.

Amendment lost.

 

CHAIRMAN- Ms Mary Kelly's amendment will be referred because it has already been accepted. Ms Moira Rayner, do you wish to move your amendment?

 

Ms RAYNER- I move:

 

Insert after 3:

    3A. The person endorsed by the Joint Sitting shall be the parliament's candidate at an election which will be held to determine who shall be the head of state.

    3B. Any other person nominated by 1 per cent of qualified voters may be a candidate at such election.

    3C. Voting at the election will be on a "first past the post" basis.

    3D. After endorsement by the joint sitting, a national plebiscite will be held at which the voters will be asked to give their endorsement of the Parliament's candidate on a yes/no basis.

 

Ms O'SHANE- I second the amendment.

 

Ms RAYNER- The purpose of this amendment is to ensure that our model, the Castan model, is referred to the Resolutions Group for consideration. This is straight out of Ron Castan's advice- the compromise model.

Amendment lost, but referred to the Resolutions Group.

 

CHAIRMAN- I am told that Senator Stott Despoja's amendment is not to be proceeded with.

 

Senator STOTT DESPOJA- Mr Chair, I am withdrawing the first amendment- the one to paragraph 3- on the grounds that it is a bit self-evident and therefore superfluous. But I do wish to move the amendment standing in my name to paragraph 6. I move:

 

Paragraph 6: add "and of the Senate"

 

Mr ELLIOT- I second the amendment.

 

Senator STOTT DESPOJA- This is a very simple addition to the Working Group's resolution. As I said this morning in my speech to the chamber, I believe, as I said this morning, that the Senate should have a role in the dismissal process. Had we seen the success of Mr Haber's motion, which entrenched proportional representation in the Senate, or indeed if we had proportional representation in the House, I would consider the dismissal process that has been proposed a fairer system. But at this stage I believe that the House of Representatives chamber is not representative. It is an echo chamber for the Prime Minister's will and if the Prime Minister wished to enforce his will in that chamber on the dismissal of a head of state it would not adequately reflect the voting intentions of the Australian people. It should go to the Senate as well.

Amendment lost, but referred to the Resolutions Group.

Most Reverend GEORGE PELL- Mr Chairman, I have an amendment to Working Group C resolution, which is seconded by Graham Edwards. It did go to you and you had thought it applied to the resolutions from the Resolutions Group but, in fact, it applies to this set of resolutions. Could I perhaps read it?

 

CHAIRMAN- Yes. I think I handed it in to the secretariat and we are not too sure where it is at the moment. Yes, please read it.

 

Most Reverend GEORGE PELL- I move:

 

At end of resolution, add:

"10. That the Parliament should make provision for wide consultation with the community concerning possible appointees for the Office of Head of State. This shall include consultation with State and Territory Parliaments who will in turn be encouraged to consult with their own communities. The Australian people should be encouraged to make nominations for the Office of Head of State and all nominations should be made public."

 

Mr Chairman, could I speak to that?

 

CHAIRMAN- Do you have a seconder?

 

Mr EDWARDS- I second the amendment.

 

CHAIRMAN- Yes, please speak to it.

 

Most Reverend GEORGE PELL- I am one of a number of people here aligned to no particular group who want the Convention to agree on a model to be voted on by the Australian people. We do not want the opportunity to be lost.

We recognise the need for compromise to try to get some sort of motion that can go forward realistically. The amendment leaves the recommendations of group C substantially untouched, but it develops them and clarifies them and allows for further clarification and development.

I was impressed by the arguments put forward this morning that this Commonwealth is a federation of states. This amendment would allow for consultation with members of the state and territory parliaments which could be formalised in a greater or lesser fashion. The nomination would remain with the Prime Minister and, de facto, with the Leader of the Opposition, given the need for a two-thirds majority. I commend it to this meeting of delegates.

 

Dr TEAGUE- Very briefly, I indicated earlier that I was opposed to any of the amendments but, in fact, this was not known to me at that point. I do support it. I would welcome a further ability to discuss it and I ask the delegates to support it.

 

Mr EDWARDS- Mr Chairman, I would like to speak briefly.

 

CHAIRMAN- Unfortunately we do not have time for seconders to speak. You can read the motion if you like; that is about all I can allow you to do. We are running out of time; I apologise but there is no alternative.

Amendment carried.

 

CHAIRMAN- We now have Working Group C's report with Mary Kelly's amendment, Moira Rayner's amendment and Archbishop Pell's amendment for consideration for reference to the Resolutions Committee. The question is that Working Group C's resolution, as amended, be carried and referred to the Resolutions Group.

Motion carried.

 

WORKING GROUP D

Appointment by the Prime Minister or a special council on nomination by the Prime Minister

Ms BISHOP- I move:

 

That the resolution of Working Group D be referred to the Resolutions Group.

 

Professor CRAVEN- I second the motion.

 

CHAIRMAN- Ms Bishop, do you want to speak to it?

 

Ms BISHOP- No, I just want to say that it is the McGarvie model.

 

Senator NEWMAN- I have an amendment.

 

CHAIRMAN- I have three amendments to be considered and then I will hear yours. Can I have it in writing. Firstly, Professor Craven, do you have an amendment?

Professor CRAVEN- I move:

 

At end of resolution, add:

"4. That as an alternative, appointment of the head of state be by a two-thirds majority of a joint sitting of Parliament, with dismissal by a Constitutional Council acting with the advice of the Prime Minister as outlined above."

 

Ms BISHOP- I second the amendment.

 

Professor CRAVEN- The amendment is straightforward. It is to allow the convention to consider the so-called hybrid McGarvie model. Delegates will recall that the McGarvie model is appointment and dismissal by a constitutional council. The so-called hybrid is dismissal by the council but appointment by two-thirds of a joint sitting of parliament. It has been mentioned in debate and has received some support in debate. The amendment merely allows it to be considered. It does not substitute it for the McGarvie model; it allows it to be considered alongside as a variant.

 

CHAIRMAN- The amendment is carried.

 

Mr BRUMBY- Can we have a recount on the last vote?

 

CHAIRMAN- It is referred.

 

Mr BRUMBY- But you called it lost. I don't think it was.

 

CHAIRMAN- Mr Brumby has requested that we have a recount of Professor Craven's amendment. I am sorry, but in order to satisfy that request could you vote again.

Amendment carried.

 

Mr JOHNSTON- I move:

 

Delete paragraph 3.

 

Sir DAVID SMITH- I second the motion.

 

Mr JOHNSTON- If points 1 and 2 stand as they are, then point 3 does seem somewhat superfluous, seeing that the council will act on the Prime Minister's advice at any rate. Also, I do not think it is necessarily advisable to state openly that people will then just be removed and rearranged if they do not agree in the first place. I think it would be much simpler, more straightforward and more acceptable to just say that the council will act on the Prime Minister's advice- end of story.

Amendment lost.

 

Senator NEWMAN- I move:

 

At end of clause 1, after the words "in order of retirement", add:

"but that at least one member shall be a woman".

 

Senator HILL- I second the motion.

 

Senator NEWMAN- An essential element in my view of Mr McGarvie's proposal was that at least one woman out of the three members of the Constitutional Council should be an appropriately qualified woman.

 

Mr TIM FISCHER- How can a woman be a man?

 

Senator NEWMAN- I can hear some interjections here, but that will have to be settled in debate. I believe it is perfectly possible. It has been quite clear from the delegates- male and female- at this Convention that it is the wish of a wide range of people that women have a more active role in the constitutional process than has been the case in the past. This is one step in the right direction. I commend the amendment.

Amendment carried.

 

CHAIRMAN- The question is that Working Group D's resolution, as amended, be carried and referred to the Resolutions Group.

Motion carried.

 

WORKING GROUP E

The present arrangements for appointments and dismissal and the defects of suggested alternatives.

Mrs KERRY JONES- I move:

 

That the resolution of Working Group E be referred to the Resolutions Group.

 

Mr RAMSAY- I second the motion.

Mrs KERRY JONES- There are no amendments. There were two typing errors, and we have rectified those.

 

CHAIRMAN- Thank you. There is one amendment- that is Mrs Kelly's- which is taken as running through each of them. The question is that Working Group E's proposal, with Mrs Kelly's amendment taken into account, go to the Resolutions Group.

Motion carried.

 

WORKING GROUP F

Popular election from a small group of nominees selected by a specially constituted council.

Mrs GALLUS- I move:

 

That the resolution of Working Group F be referred to the Resolutions Group.

 

Professor WINTERTON- I second the motion.

 

Mr JOHNSTON- I move:

 

Delete paragraphs 2 and 3.

 

Again, we come to the issue of gender balance, but this time we have definitely made it political by putting it in the middle of the federal parliament to decide. One government's gender balance could be an opposition's imbalance and so on and so forth. I think you would make it so political it would become impossible to function, make a workable committee and come to a decision. That is why I would oppose that part of the resolution.

 

Sir DAVID SMITH- I second the amendment.

Amendment lost.

 

CHAIRMAN- The amendment moved by Mary Kelly applies to Working Group F's report and will carry through. The question is that Working Group F's resolution, taking Mrs Kelly's amendment into account, be referred to the Resolutions Group.

Motion lost, but referred to the Resolutions Group.

 

CHAIRMAN- We have finished today's business, with all those reports referred.

 

Ms HOLMES a COURT- Mr Chairman, I raise a point of order. I was once a schoolteacher before I became a lackey of the republican movement. In these situations I think about how we would behave in the classroom. I suggest that, if we locked the doors now and had a test, we would all fail. We would not even get a 25 per cent pass rate on what has just gone on. Tomorrow, or the next time we have amendments to these working party documents, could we have the amendments before lunch so we have an opportunity to examine them, and can we have someone with a little more experience in presentation examine the format so that it is more intelligible to us?

 

CHAIRMAN- Thank you very much. I think what Janet Holmes a Court says is right. I must say that it makes it extraordinarily difficult when amendments are received even from the floor. It makes it quite impossible to put them up in any way for people to consider them. We take note of the admonition from Janet Holmes a Court.

Ms HEWITT- I register my disappointment again at the process that has just taken place. I did not vote, and I did not vote because I am comparing two pieces of scrappy paper on issues that I consider to be of vital importance. We spent hours this morning windbagging our way through the morning, but when it comes to important issues where we are being asked to vote we are not taking time and giving due consideration to these important issues. I would like to express my disappointment with the process.

 

CHAIRMAN- I would stress again that this is an entirely different process to the final vote. What we are trying to do is to make sure that there is a preliminary reference to the Resolutions Group, and there is an entirely different voting procedure and there will be quite different documentation at the time these votes are finally taken. At the same time, I take on board the admonitions of both Janet Holmes a Court and Ms Hewitt.

 

The Right Reverend John Mr HEPWORTH- In view of the fact that we have run over time on this, and in view of impending other engagements, could I ask that the working groups that were scheduled for 5 o'clock be rescheduled for 9.05 in the morning immediately after prayers.

 

 

CHAIRMAN- Were we to do that, we would be in an even worse position for tomorrow's resolutions than we are in for today's. The working group papers have been circulated to all delegates. If it is possible for them to assemble in the places that have been allocated for meeting on their return from the Government House function, they could then determine when they are going to meet and whether they want to meet tonight or early in the morning. But I believe it essential that we have the reports from the working groups at the latest by 9 o'clock in the morning. It will be quite impossible for us to consider them tomorrow in any rational way unless that is so. You would also know that the Resolutions Group has been charged with other responsibilities for tomorrow, and I hope that the Resolutions Group advice to you will be considered earlier.

 

Ms RODGERS- To help us also clarify things, could the pages be numbered? It would help.

 

CHAIRMAN- We will ask that the pages be numbered.

 

Ms O'SHANE- I just ask for some clarification on how we proceed from now in respect of the working groups.

 

CHAIRMAN- What I have suggested is that you should meet on your return from Government House at your designated working group meeting place, that you then determine when you are going to meet and that you try to have, if you can, a preliminary report by 9 a.m. tomorrow. In other words, tonight you meet and determine when you are going to meet in the morning- at 8 o'clock or whenever- and, if by 9 o'clock tomorrow morning you have not reached a conclusion and you can report that to us, I suspect that for the working groups we may be able to get the reports by about lunchtime tomorrow simply because there are other resolutions group proposals that we will consider in the morning. But at this stage I think it better if you meet on your return from Government House, determine when you are going to meet and then, if you can, advise us by 9 o'clock tomorrow morning how you see your progress and at what time you will be able to give a report. We can then report the position to everybody.

 

Convention adjourned at 5.29 p.m.

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Last updated: 21 October 2000