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 2

CHAIRMAN- The third speaker this morning is Professor Patrick O'Brien, who was unable to speak yesterday for various reasons.

Professor PATRICK O'BRIEN- I want to make four very quick responses to some points raised before delivering my particular defence of the idea of the popular election. There is a scare-mongering campaign being conducted that somehow or another an elected head of state is incompatible with the powers of the Senate. That is just nonsense. Of course, some people want to reduce the powers of the Senate, and that is a long argument in Australian history. But it is just simply nonsense to say that.

Secondly, I am quite horrified by these people who have been arguing here at this Convention and in the press and in articles for several years that we must not subject so-called eminent people to character scrutiny, to checks on their public affairs and public life, because, the poor souls, it would be humiliating for them. The taxi driver who brought me here this morning was expressing similar views to mine. He said that to get a taxi and to drive people in a taxi you have to have character searches done. He was a member of Neighbourhood Watch. His whole life and record were searched by the police. They went around checking with neighbours. He said that he did not mind that because he wanted his children to be protected by people of good character. So I cannot understand this awful argument, the secret people argument, that we must not subject the person seeking the highest office in the land to scrutiny. Of course he must be or she must be.

Another point is this idea that somehow or other an elected president would represent the power of money. Here is the power of money, to my right. You cannot buy all the people. Of course you can buy small groups of people, but the narrower the focus of power the easier it is to buy influence. Indeed, an elected head of state helps to minimise the possibility of the rich, mighty and powerful buying their way and selling favours.

As to the argument that somehow or other an elected head of state would rival the Prime Minister, dear me, poor Prime Minister! Here we have an office that has absolute powers. I wonder how many people in the gallery realise that our Australian Prime Minister has far greater powers than an American President. An American President is almost powerless compared with an Australian Prime Minister. The former's power derives from the simple fact that he is the head of government and head of state of one of the most powerful nations militarily and economically that has ever existed on the face of this earth. But imagine an American President that had the unrestricted power to declare war. Imagine an American President that could sign treaties without reference to the congress. Imagine an American President who could appoint all the judges he wanted. Imagine an American President who could just send troops off to a theatre of war. They are the powers, my fellow citizens, of an Australian Prime Minister.

They need to be checked and balanced, particularly if we take the Crown out of the Constitution, which has been the institution which has acted as the balance. That balance, as Mr Bill Hayden pointed out yesterday, if we become a republic, must come directly through the people through their elected president. Yet remember what Mr Keating said in an interview with Laurie Oakes published in the Bulletin about 1992 or 1993. Mr Keating said that, thankfully, as far as he was concerned, anybody designing in Australia a modern democratic constitution would not give to a Prime Minister the awesome powers that a Prime Minister has under the Westminster-type system. Let us finish those nonsense arguments.

I have only a few minutes left. Concerning the matter of appointment, as we know, all contemporary public opinion polls suggest that, if the Commonwealth parliament gave the Australian people the say, they would support overwhelmingly a direct democratic say in the choosing of their head of state. They would do so by a comfortable majority. Being of our own choice, we, the people of Australia, could justly and genuinely claim that office as our own. We could claim the Constitution as our own and not as a document belonging to those who exercise power over us.

It is ludicrous to argue that having an Australian as head of state would somehow mark Australia's coming of age while at the same time denying the Australian people the most fundamental democratic right of all, which is to choose the means by which one is governed and how those who govern in the people's name are themselves chosen. To be dictated one option is to be given no choice at all. In fact, it is an absolute denial of the right to choose and thereby of democracy itself. Also civility is denied.

It has been argued that republicanism is about the national identity of Australia's head of state and that Australians need one of their own to fill that position- a person who embodies what it means to be an Australian, someone with whom all Australians can identify and who is representative of all the Australian people, and so on the argument goes. However, if an Australian head of state is to appeal to and represent all the Australian people from all walks of life, of all ages, of all cultural backgrounds, of all class backgrounds, the hierarchical means that are being proposed through both the McGarvie model and the ARM's model, and variations of it by ruling politicians, simply will mean that we will get yet another establishmentarian elitist as remote from the people in lifestyle as a far-distant monarch.

One person out of the population of this country of approximately 18 million people, one person under the ARM model will nominate a single candidate. Then approximately only 233 people- that is, roughly the combined membership of both houses of parliament- will get a say in that candidate. But they won't be allowed- `Oh no, we can't subject him to scrutiny; he'd be humiliated.' The upshot is that approximately 150 people out of 18 million Australians- that is, the two-thirds majority- will decide who our representative head of state is.

Please listen to this, you people in the gallery and people who are listening on the electronic media. Is that democratic? Could such a person be representative of all of us? Of course not. So, contrary to ARM's schemes and scheming and Mr McGarvie's model, the only means of getting a head of state who is representative of and accountable to us, the Australian people, is through the constitutional entrenchment- not in a preamble but the constitutional entrenchment- by the people of our right, the right of every Australian citizen qualified to vote, to have not only the further right to cast a direct ballot in an open contest for the office but also the constitutionally entrenched right to nominate candidates for that office and the constitutionally entrenched right to contest direct elections.

If we do not do that, we will finish up with a sham and a shambles. If we do not do that- if we make the move to a republic- the proposals will divide the nation. You will not get anything like sufficient support from the people of Australia to have a constitution that all Australians, despite our cultural diversity and despite all our differences, can identify with. If you do not put that into the Constitution, you are constructing a constitution with which most people will not be able to identify.

CHAIRMAN- I call on Mr Jason Yat-Sen Li, to be followed by the Hon. Tony Abbott.

Mr LI- Mr Chairman, fellow Australians, it warms my heart to be able to address all of you as my fellow Australians. Australia has come a long way since a century ago to becoming a truly diverse polyethnic nation. When launching the issues paper `Multicultural Australia: the way forward', the Hon. Phillip Ruddock, federal Minister for Immigration and Multicultural Affairs, proclaimed that Australia is a multicultural nation. Our cultural diversity has been a strength and an asset in our development as a nation. I would like to thank Mr Cocchiaro for his magnificent speech last night, which I endorse fully.

I too wish to bring the perspective of ethnic Australians and Australians from a non-English speaking background to bear upon this issue. That is my mandate at this Constitutional Convention. I stood for election on the platform of representing ethnic Australians and all those believing in the value of an ethnically and culturally diverse society. My election articulates a clear message. It affirms that ethnic Australians have an undeniable interest in the future of our nation. They have put me here to speak for them. I believe that all Australians should be given equal opportunity to attain the honour of being Australia's head of state- all Australians regardless of their ethnic descent.

Fellow Australians, allow me to put to you a proposition, not just those of you are assembled here with me today but all Australians who may be watching these proceedings. How would you feel, what would be the reading on your internal barometers if tomorrow an Australian head of state were appointed who was of Asian ethnicity? The comments and the reaction of a certain federal member in Queensland upon the announcement of this year's Young Australian of the Year, Vietnamese born Miss Tan Le, spring immediately to mind.

I perhaps credulously would hope that all of you would applaud this appointment as a celebration of Australia's diversity, as an affirmation of the harmony with which a multitude of diverse ethnic groups work in concert for the good of our country. Perhaps more interesting, however, is whether any of you have reservations. Allow me then to ask: what is the basis for these reservations? What lies beneath them? I suggest that the reservations lie in the ingrained sentiment that an Australian head of state of Asian ethnicity does not reflect the proper image of Australia. Here lies precisely, profoundly, the power of symbols. This is a question of our Australian identity.

Without wanting to digress to the broader issue of whether Australia should become a republic, I applaud the Australian Republican Movement for their emphasis on symbols, for the forging of a national identity within which all Australians can feel a sense of belonging, a sense of fitting in and a sense that this land is their home. Symbolism is of the utmost importance.

Let me reiterate that all Australians should have equal opportunity to attain the office of Australian head of state. This necessarily impacts upon the appropriate model for appointment and dismissal. Having opened up an avenue through which those people who elected me can communicate their views directly to me, I have found that those views have been remarkably consistent. An overwhelming majority of ethnic Australians desire a direct input into who their head of state should be. They do not want to leave the decision in the hands of a body- a parliament or otherwise- in which they are staggeringly under-represented.

I therefore say that, in addition to the existing criticisms levelled against the McGarvie model and appointment by a two-thirds majority of parliament of a government nomination, neither of these models will do justice to the legitimate dreams of this generation's ethnic Australians to become Australia's head of state. The problem, as I said before, is the hopeless under-representation of ethnic Australians not only in parliament but also in all positions of high office. The lack of role models, the lack of a motivating tradition of mainstream political involvement and the inherent conservatism among the elite in Australia will mean that this under-representation will doggedly withstand correction for many decades. That is too long to wait.

Popular election from a small group of nominees chosen by parliament suffers from the same deficit. I wish to make it very clear that I am not concerned with giving ethnic Australians an unfair advantage; I am concerned with placing them on an equal footing. As two legal and moral philosophers John Rawls and Ronald Dworkin have argued, justice requires removing or compensating for undeserved or morally arbitrary disadvantages, particularly if these are profound, pervasive and present from birth.

I am not entirely happy with any of the three existing models for appointment and dismissal. These three models have divided the republican camp into three entrenched blocs, each pitted bitterly against the other. This is jeopardising not only the credibility of the republican initiative but also the credibility of the Convention itself. We must not let this happen.

As an independent delegate unaligned to any particular group, I grappled last night with whether today in this speech I should lend my support to any existing model or whether I should propose a compromise of my own. I have chosen the latter course- not because I am so presumptuous to think that I can solve all the problems or I can untie the Gordian knot and overnight be proclaimed the national hero for devising the ingenious Li model. I have done so because I would like to set an example that we all at this stage have to think laterally to find a compromise capable not only of achieving consensus but also of having the greatest chance of success at a referendum. We must be guided by this principle. We must give credence to the wishes of the Australian people, because this is the mechanism for constitutional alteration under section 128. Otherwise, a referendum will fail.

Let me turn now to my compromise proposal. Compelling criticisms may be levelled against each of the existing models. However, each model also has its strengths. I am concerned with preserving the strengths of each model while somehow at the same time discarding its weaknesses. With respect to direct election, the problems are many and have already been eloquently ventilated. The strength of direct election, however, is that it allows popular participation consistent with our democracy.

With respect to election by a two-thirds majority of parliament, the problem is that the Australian people have clearly voiced their distrust of parliamentarians. The strength of this model lies in its ability to deliver a bipartisan, apolitical head of state. With respect to the McGarvie model, it is perceived to be too elitist. The strength of this model lies in its preservation of the existing mechanism of dismissal as an effective sanction against the head of state who fails to comply with convention.

I believe that the strengths of these models may be combined without their weaknesses. My proposal begins with resolution 1 of Working Group F but then diverges from it. A two-thirds majority of parliament elects a selection body that is gender balanced, composed of people who have the respect of the Australian people and who reflect Australians in all their diversity. That selection body receives nominations from the general public and, according to a set of transparent criteria, selects a candidate- in the same way that the Australian of the Year is selected. That candidate must then win the support of an absolute majority of parliament to be appointed head of state.

Fellow Australians, this model is non-elitist. It ensures ease of dismissal by absolute majority of parliament- the same majority as that which appoints. It will produce a bipartisan, apolitical head of state. It allows for popular input without creating a massive mandate, and it removes the actual selection of the head of state from the hands of the parliamentarians, thus allaying distrust. In addition, I believe this model affords an equal opportunity to all Australians to be elected head of state.

I was born in Australia 26 years ago. I am as Australian as anybody here. Look beyond the colour of my skin. Regardless of their origin, all Australians have a unifying commitment to Australia, to democracy and to equality. The value of ethnic diversity in Australian society now is beyond contention. The challenge, however, is for a more tolerant and inclusive democracy. Fellow Australians, I have a vision for Australia in which an ethnic Australian may be elected head of state. It will be as absolutely normal and uncontroversial as if an Australian of any other ethnic descent were appointed. I ask all delegates and all Australians to join me in that vision.

CHAIRMAN- Thank you, Mr Jason Yat-Sen Li. Before I call the Hon. Tony Abbott, I table a proxy from Jennie George, President of the ACTU, who has nominated Jennifer Doran as her proxy at certain times and places. I also note that the next speaker, Ms Clare Thompson, is not in the convention room. I urge her to come in as soon as possible. If not, she will forgo her place to Senator Natasha Stott Despoja.

I did a 10-minute turn and did it all in turn 9.

Mr ABBOTT- Thank you, Mr Chairman, for the opportunity as a mere proxy to address the Convention. May I say that the dismissal issue is the key to this debate, as recognised by the Hon. Richard McGarvie. Dismissal is the only effective sanction on the head of state. Without an effective sanction the conventions will not work and without the conventions, as Mr McGarvie has pointed out, the head of state is at least a potential threat to our democracy. So this is the key issue. We cannot assume that it would not arise in the future. In fact, under any republican system, the desire of the Prime Minister to dismiss a head of state is more likely to arise given the fact that the head of state will be more likely to test the rules in any new system.

A fully elected presidency obviously requires a full set of rules because such an individual would be the modern equivalent of a priest, prophet, king, seer, sage and embodiment of the spirit of the nation. The only successful candidates to be elected presidents would be politicians, billionaires or saints. Politicians, as we know, are able to slide around rules; billionaires, as we know, are able to buy their way around rules; and saints, almost by definition, refuse to be bound by rules. If a saint ever got elected as president and Ted Mack found himself in that office, it is hard to imagine that he would be able to refrain from giving advice to the Prime Minister and the Prime Minister would have absolutely no leverage whatsoever on him. He could not even threaten his superannuation because he would refuse to accept it.

Dismissal is absolutely the key issue. There must be a means of dismissal of a popularly elected president, yet popular recall or parliamentary impeachment would be a recipe for national paralysis and chaos. The difficulty with prime ministerial dismissal is that the turmoil of 1975, when a non-elected Governor-General dismissed an elected Prime Minister, would be as nothing compared with the turmoil if a Prime Minister tried to dismiss an elected president. Short of medical incapacity or criminal conviction, any elected president would be there for the duration. There would be enormous potential for deadlock between Yarralumla and The Lodge.

The Australian Republican Movement has recommended appointment by a two-thirds majority of both houses of parliament. This is supposed to guarantee that any president would be a great Australian with bipartisan support. But it assumes in the first place the entrenchment of the existing Senate voting system. So it is unlikely that any one party would have a two-thirds majority. It also most significantly assumes goodwill on the part of the contending parties in the parliament. This, as anyone who has sat in the parliament knows, cannot be assumed. It is possible that an opposition would simply refuse to cooperate and that Australia would be left without a head of state.

I am sure that Phil Clearly supports popular election because he realises what members of parliament would do to any government nominee who came before the parliament. It needs to be pointed out that no recent Governor-General would have become our head of state under a parliamentary process such as the ARM recommends. Stephen, Cowen and Deane would never have run for such an office. They would never have exposed themselves to this kind of partisan scrutiny in the parliament. Mr Hayden, of course, would never have got a two-thirds majority because we only discovered the greatness of the man after he left politics. Quite simply, if such a person were not a politician at the beginning of this process, they certainly would be at the end.

The Australian Republican Movement has, in the course of this Convention, modified its ideas on dismissal. It now says that the head of state should be dismissible by a mere simple majority in the House of Representatives. I find it enormously strange that, in wanting desperately to entrench bipartisanship in the appointment of a president, they are indeed entrenching partisanship in the dismissal of a president. As Tim Fischer so shrewdly pointed out yesterday, in a comparable situation to 1975 we could have no Prime Minister because he had been dismissed by the president, no president because he had been dismissed by the Labor majority in the parliament, no election because there would be no-one to manage such a process and no head of state, no president, because it would be impossible to find a two-thirds majority in a situation of such chaos to replace the incumbent.

The beauty of our existing system of government, our existing system of selection of the Governor-General, is that it gives us a selection system which is much more like that for a judge than that for a politician. The key advantage of the McGarvie model is that it preserves the political detachment of the existing system. The Prime Minister could be expected to make worthy nominations lest he suffer electoral retaliation. Members of the Constitutional Council could be expected to take their duty seriously lest their reputations be destroyed. The head of state could be expected to act in accordance with the Convention lest he be dismissed for improper conduct. Under the McGarvie model, codification seems least necessary.

But it is impossible to exactly reproduce the detachment and the impartiality of the monarch. It is, it must be pointed out, impossible to lobby the Queen, yet the Constitutional Council proposed by Mr McGarvie would comprise distinguished citizens, to be sure, but citizens who have been involved in the hurly-burly of public life. They would have friends and critics; they would have sponsors and proteges; they would be subject to lobbying, influence peddling and last-minute appeals- not in anything like the same way that a parliament is but much greater than the existing system. There would be the problem of unanimity and the problem of confidentiality. There is also the problem pointed to by Bob Carr the other day of the head of state having a power base, no matter how limited, independent of that of the Prime Minister.

For generations perhaps under the McGarvie model the existing culture would preserve the existing system, but time passes and cultures change. Under the McGarvie proposal, the head of state can dismiss the Prime Minister. The Prime Minister can dismiss the head of state. But no-one, it seems, can dismiss members of the Constitutional Council. What sanctions would hold them to their duty when their memories of the existing system had passed?

These cannot be dismissed as mere quibbles, because a constitution that might last for a hundred or a thousand years has to be gotten right. It is possible, even under the McGarvie option, that a future head of state might see himself as being more involved in day to day power and might see his Constitutional Council as something more resembling a presidential cabinet, which of course brings us back to the morass of the sanctions issue which so bedevils the direct election and the parliamentary election model. McGarvie has proposed by far the best and by far the most workable republican alternative to our existing system, but it has to be said that it is the best of an unsatisfactory bunch.

I acknowledge in this chamber those republicans who have paid tribute to our British heritage and suggest that their generosity should also extend to those who believe that that heritage of freedom under the law, of compromise and of evolutionary change belongs just as much to our future as to our past. This country owes a great debt of gratitude to the men and women of Australians for Constitutional Monarchy, who have consistently reminded us of the strengths of our existing system when others, who perhaps should have known better, have become its critics. Finally, I congratulate Richard McGarvie for his brilliant insights into how our system really works and for his shrewd recognition that any alternative must build on the strengths we have got.

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Last updated: 21 October 2000