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 3

Ms THOMPSON- Last week over 300 women met at the women's convention at new Parliament House to discuss broad-ranging issues to do with constitutional reform. High in the thoughts of all of the people who attended that convention was the need to be more inclusive- particularly in including more women in the process of the appointment of our head of state. Across the political spectrum from republicans to monarchists, women from the Aboriginal and Torres Strait Islander community, women from non-English speaking backgrounds and women like me agreed that women should participate fully in the process and the outcomes of a head of state for Australia.

It is this point that I wish to address this morning and examine and test the models against. Outcome 5 of the Women's Constitutional Convention says that the `selection or appointment process for the head of state must guarantee that women's chances of occupying the position are substantially equal to those of men'. The question is how best to achieve this. Clearly, a system which is based on heredity which favours males over females cannot meet this criterion.

We then turn to the proposals put forward by the various working groups this week. The proposals of Working Groups A, B and F, all of which are proposals for popular election in some form, are initially very attractive. They are attractive because they rely on a system of compulsory voting which sees, in theory at least, as many women as men enfranchised in this country. The theory goes that if you have a popular election women will have as great a say in the appointment of the head of state as men. Women will have, so the theory goes, an equal chance of rising to the position of head of state.

However, I do not believe that women would be more likely or even as likely to become a head of state under a popular election system. I say this because of the role that women play in politics generally. The women who are in parliaments have fought very hard to get there. Generally, women in politics, as many members of my own Liberal Party would know, tend to be the organisers in the background, tend to be the ones who do the work and do not take the glory. In that respect, there is no way that we can guarantee that a popular election would be at least as likely to provide us with a female head of state.

The second criticism I have of this model is that it opens the process up to the sort of nasty public scrutiny that we have seen Ms Kernot, Ms Lawrence and Ms Kirner undergo in recent years of their private lives, their dress and all the rest of it. Anything that avoids this, in my view, is a positive thing. It is not a pretty picture.

I could be convinced perhaps of the attractiveness of this model if only we had more detail. This morning Professor O'Brien, who was vociferous in his views, theatrical in his gestures, was very concerned about the rights of the people but light on detail.

The proposal of group D is attractive because it is closest to our present constitutional system, and that is a system which most of us here today agree is on the whole a very good system. However, by appointing a council to undertake the appointment process of a head of state I see a number of problems. First and foremost, it assumes that lawyers, judges and former governors-generals and governors are the repository of all knowledge and wisdom in this area. As a lawyer, I dispute that. I put on record my belief that the wisdom of the wider community is more valuable than the wisdom of an elite legally trained few.

Secondly, this proposal from Working Group D is bad for women. It is bad because the process does not include women from the beginning and, more importantly, it is bad because of what the outcome will be. We all know that we are far more comfortable with people who look like us, who speak like us and who share our views. One of the great challenges of late 20th century Australia is to be more inclusive and more accommodating of diversity, and I am delighted to be part of a group here this week and next week that recognises that and places that as an important criterion. But the problem is, if we ask a council of elderly former members of the legal elite to choose someone as their head of state, what is the most likely outcome? The most likely outcome, in my view, is that they will choose someone who looks like them, who sounds like them and with whom they are comfortable. That may not be a very good outcome for this country.

The proposal by Working Group C is, to my mind, the best solution. This is the proposal that would see a joint sitting of both houses of parliament appoint a president by a two-thirds majority. It is a proposal that would be bipartisan and it is a proposal which has a great deal of merit. It is a proposal that requires a group of people who have been democratically elected by the all too frequent ballot box in this country to make a decision based on the input of all of us.

Parliament reflects increasingly the great diversity in our society. There are far more women now in parliament than there are likely to be in the ranks of former governors-general, former High Court judges, Federal Court judges and governors for the next 100 years. That is today- let me tell you it gets better at every election. Parliament is very conscious of its responsibilities in the need to reflect the hopes, dreams, desires and aspirations of the great Australian population. My experience with parliamentarians is that they are extremely conscious of the world at large. They are very clear in making sure that their decisions are in the best interests of the public, the best interests of this country and that a whole range of views are taken into consideration when making their deliberations.

This is not to say that the Working Group C proposal could not do with some refining. I would personally like to see a process where ordinary members, every member, of the Australian population had an opportunity to have some input into the nomination process. Whether this is by writing in to a select committee or simply talking to your local member of parliament, I have not really thought too clearly about, but I do think there is merit in that proposal and we as a Convention should explore it.

I support a two-thirds appointment because I believe it will best deliver the aspirations of the women's convention with which I heartily agree. It will be the only system to guarantee that women's chances of occupying the position of head of state are substantially equal to those of men. On this basis, I commend Working Group C's proposal to this Convention.

CHAIRMAN- Thank you, Ms Thompson. I now call Senator Stott Despoja, to be followed by the Hon. Neville Wran, who switched places with Ms Linda Kirk.

Senator STOTT DESPOJA- Thank you, Mr Chairman, fellow delegates. It is an honour to rise in this chamber for the first time. It is a somewhat cosier chamber, it is much nicer. I am honoured to be representing the federal parliamentary wing of the Australian Democrats at this Convention, and I am glad to be joined by my state colleague Mike Elliot, who is the Leader of the Australian Democrats in South Australia.

I am a proud republican and always have been. Like many others here, I place on record the willingness of myself, on behalf of my party, to participate in this Convention, to listen to different models, to assess the worth of different arguments. At the risk of getting a point of order for relevance from Mr Bruce Ruxton-

Mr RUXTON- Never to you.

Senator STOTT DESPOJA- I will restrict my comments today, Bruce, to the issue at hand, and I look forward to elaborating on why I believe we should be a republic when I get the opportunity to speak on Monday.

If we are to become a republic, if we are to achieve one that has popular support, then we must begin to grapple with the public's desire to play a role in that process. My personal preference, my ambit claim if you like, is for a popular election for a president. This view is reflected by some of my Democrat colleagues, but the one thing that we all have in common is that, if there is to be an elected head of state, that must come with unambiguous safeguards in our Constitution. So my support for a popularly elected head of state is conditional. It is conditional upon broader constitutional reform, changes to the powers of the Senate and the codification of the powers of a head of state.

Many of the most successful heads of states around the world are popularly elected. We have heard about the President of Ireland. True, each of the political parties sponsors a candidate, but the Irish electorate has made clear that it will only support and vote for candidates of the highest calibre, and that is what they have had. The most recent President of Ireland, Mary Robinson, left her term of office with an 80 per cent approval rating. It is also worth pointing out that the longest serving head of state in Europe- the enormously popular female President of Iceland since 1981- is also popularly elected, but in both cases the powers of the President are prescribed in the Constitution.

The initial failure of this Convention to seriously consider the idea of codification of a head of state is a grave one. I think it is a failure that could doom any ballot on a future republic. Certainly, without codification of powers, an elected presidency cannot work. I would suggest that any head of state- even one elected by a parliament without codified powers- may not work either.

The reserve powers of the Governor-General are extensive. They have been used in the past and they can be used again. We can draw on overseas examples, of course. I note that the President of Pakistan is appointed by a parliament. That has not stopped the President sacking the last three elected Prime Ministers before the completion of their terms. So whatever the model, the problem will not go away.

I acknowledge the Prime Minister has signalled his support for the McGarvie model- where a president is chosen by a Council of Elders on the advice of the Prime Minister. It is the last rider- on the advice of the PM- that worries my party. I am not too big on the Council of Elders bit, either.

In 1969 John Gorton appointed the man he beat for the PM's job, Bill Hasluck, as did Bob Hawke in 1988, with Bill Hayden- with all due respect to those Governors-General. Indeed, this country has only had three totally non-political appointments to the position of Governor-General, all three being eminent jurists since 1975, and indeed we have had no female Governor-General in this country.

It remains the case- I think the appalling case- that the head of state in this country is still within the gift of the Prime Minister of the day. More worryingly, the head of state can effectively be removed by the Prime Minister of the day because the Queen usually acts on the Prime Minister's advice.

Under the McGarvie model, the council likewise would act on the Prime Minister's advice. Thus, if a head of state becomes too critical of government- insists that, say, some constitutional forms be pursued, refuses to consent to a piece of legislation or declines to follow perhaps an inappropriate or obviously partisan demand by the PM- they could be sacked by the Prime Minister on his given advice. What sort of constitutional safeguard would that be? So the Democrats reject the McGarvie model as too open to political manipulation.

The Democrats do recognise some of the positive features of the two-thirds model: that it would encourage bipartisan cooperation, that it would not necessarily create a rival political position to the Prime Minister and that, theoretically, the parliament is representative of the people. But we know that the House of Representatives, by virtue of its voting system, does not reflect the true voting intentions of the Australian people. You have only to look at the current arrangement, where the government has two-thirds in the House although they received only 47 per cent of the popular vote. Ten per cent of voters- nearly one million Australians- are denied representation in the House of Representatives altogether, whereas the Senate is more representative because it is based on proportional representation. The fact that the House is twice as big as the Senate and that its numbers will dominate the vote brings into question whether or not the two-thirds model will indeed be representative. If, in fact, the House were elected by a PR, as is the case in many European country where the parliament chooses the president, I think the two-thirds model would be much more valid.

There is a strong argument that the two-thirds model and parliamentary election would be more likely to generate a non-political head of state. It would almost certainly mean that a head of state required bipartisan support. But that decision would involve little, if any, consideration of the minor parties and independent candidates that may be in the parliament, elected by all those many millions of voters who are taken for granted by the major parties in the three years between one election and the next.

The Democrats recognise flaws in all models. Nevertheless, it is important that this Convention comes up with a workable model with some sort of preposition. On behalf of the Democrats I indicate that we are prepared to support a resolution in favour of a head of state appointed by a parliament only if some of the essentially undemocratic aspects of this scheme are removed. We believe strongly that the nominations must come from the people, not from backroom deals.

I support a process that excludes members of parliament from the nomination process. I support one that enables Australians to nominate candidates, say, to a short list from which parliament could choose the president. This is a model that has been mooted previously by the Democrats. There is an idea that we could use a petition system, which is in line with some other countries where each nomination is supported by around 25,000 signatures. This would at least ensure that the people had a say in the choice of the head of state. I acknowledge that this model is second best to a popularly elected president with codified powers. But if a majority of republicans and others at this Convention believe that a head of state should be elected by the parliament- and I acknowledge that this has been a workable model in many other countries- then let us do it in a way that maximises the role of the people and minimises the opportunity for political backroom deals.

I wish to refer, as Ms Thompson did, to the Women's Constitutional Convention. I note that one of the resolutions of that conference was that we should ensure that women's chances of occupying the position are substantially equal to those of men. I endorse that and I would like to go one step further. I would like the first president or head of state of an Australian republic to be a woman. I think this would symbolise Australia's move into the next millennium as a nation committed to equality between the sexes and to having women in positions of power. I hope that she will preside over a democratic and representative parliament, one in which the voices of previously underrepresented groups are heard, including women, different ethnic groups, young people, indigenous Australians and those from different socioeconomic backgrounds. I look forward to continued constructive debates about the methods of appointment and dismissal at this Convention. I am happy and willing to listen to all arguments and I will be guided by my party room, by my party and by its members when I vote on this issue.

CHAIRMAN- Thank you, Senator Natasha Stott Despoja. I now call on the Hon. Neville Wran QC, to be followed by Ms Mary Delahunty.

Mr WRAN- Like so many delegates who have addressed this Convention in the past few days, I feel honoured to be here as a delegate and privileged to have the opportunity to address the Convention. I also consider myself extremely fortunate that I was one of a handful of foundation Australian Republican Movement members in 1991 and so able, as its ranks grew in the ensuing years, to pursue the cause of an Australian republic- an Australia with an Australian citizen as our head of state, a head of state with substantially the same powers as the Governor-General and powers limited and defined in much the same way as they are presently.

I can tell you, Mr Chairman, that back in 1991 the exercise seemed so much more simple than it does today. After all, the aim was merely to have an Australian republic up and running by the year 2001. That gave us 10 years to examine the various options, to persuade governments to acknowledge growing republican opinion and, finally, to seek the binding view of the Australian people by way of referendum.

Delegates, in the past few days as the debate has proceeded on various issues, including the arrangements for the appointment and dismissal of a new head of state, as that debate has swung from the constitutional monarchists `do nothing' stance to the general election model focused on by some of our republican candidate colleagues, my emotions have swung from exultation to frustration and back again. There is no doubt that some of the models presented to the Convention by the various working groups are light years apart in concept and methodology. The challenge for the Convention is to resolve the difference.

There are many accomplished and distinguished Australians at this Convention, some practised and some not practised in the art of politics. In the past few days, incidentally, a lot of rather nasty things- indeed at times bordering on the offensive- have been said about politicians. In the result, it is with some humility that I have to confess that for the best part of 15 years I was a politician- a calling which I have learned here is a lowly one better not mentioned in polite company. In the event, whilst occupying this lowly station, I improved considerably my understanding of the values and judgments of the Australian electors and, perhaps more importantly, how to analyse and assess their significance.

In my years in politics perhaps the most critical thing I learned was that influencing change was the art of the possible. That is to say, where an objective was to be achieved or a vision was to be fulfilled, it was not always possible to obtain the perfect result. Do any of us really believe that the founding fathers walked away from the final convention that produced the Australian Constitution satisfied that a perfect result and one without compromise had been achieved? Of course not. And a cursory perusal of the records and writings of the convention make that clear beyond doubt. The Australian Constitution was not hammered out at one sitting or several sittings; it was the result of negotiation and compromise extending over a period of several years in and outside the conventions.

Over the years since 1991 it has become increasingly obvious that Australians- or, more correctly, a majority of Australians- wanted or at least preferred an Australian citizen as their head of state. To reach that point, of course, needs a referendum, and our record of passing referendums is rather abysmal. I might add that it seems to me that no-one has the perfect answer as to the method of appointing an Australian head of state. After all, the range of options extend from appointment on the sole decision of the Prime Minister to popular election with the accompanying complexities as to powers, codifications and so on.

I must confess, I thought a collegiate system involving the vote of two-thirds of both houses of the national parliament, which gave the people at least an indirect involvement in the process, was a sensible compromise capable of being approved by the people. Obviously a number of other republicans have so far not been prepared to share that view. I can understand that. The two-thirds approach is not perfect and it is not the only model; it just happened to have the attractions I referred to.

Delegates, let me say this as earnestly as I can. We are all aware of our responsibilities as delegates in this historic Convention. We are aware that in the months leading up to this Convention there has been a growing expectation amongst Australians that something positive and permanent in the dynamic of our constitutional framework will come out of this Convention. In the proceedings of the Convention so far, as particularly evidenced by the votes taken in plenary session on Tuesday in relation to the powers of the proposed head of state, it is apparent that a strong republican sentiment is emerging. This Convention has several days yet to run, time enough to settle the Gulf War, let alone to bridge any gulf between us on important issues such as appointment or election.

There are, of course, delegates here committed to the perpetuation of the constitutional monarchy for ever. Some are intransigent and others are quite extravagant in their assessment of the consequences of having an eminent Australian, man or woman, as the head of state. One delegate even suggested that it might represent the first step down the road to a Nazi regime. Others again are less intransigent and inclined to the status quo. On the other side of the fence there are republicans who are committed to an Australian head of state with appointment or election by various methods and, finally, but just as importantly, there are non-aligned delegates who, by and large, are open to be persuaded by the force and logic of argument presented in these debates.

In this debate I impute no malice or lack of bona fides to any group. No-one has a monopoly of love of country or integrity of decision making when it comes to matters of this kind. Having said that, people can be intransigent in their attitude or just plain wrong in their conclusion. Delegates, if ever there was a time to be right in our decisions, that time is now. Republicans have striven for years for the chance to put a republican model altering the Constitution to the Australian people for their approval. We are on the very cusp of success. The opportunity must not be squandered.

In the various models relating to appointment and dismissal there is plenty of room for compromise and accommodation. I hope that the Convention will share this view when it votes later in the day to allow the recommendations from each of the Working Groups A to F to go ahead for final consideration next week. I include in that the submission from the constitutional monarchists. In the meantime, the opportunity for compromise and accommodation can be explored with goodwill and good heart, and for a good cause- the future of our country.

Delegates, if we miss the day, then heaven alone knows when we will get the next opportunity. If we miss the day, then this chance to begin and maintain a process of constitutional review and reform may well be lost. The outcome is in our own hands, hands that treasure this country for what it is and for what it can be. Let's seize the day. If we fail, we will only have ourselves to blame.

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Last updated: 21 October 2000