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 6

Mr GREEN- If what we have seen in the newspapers over the last few days can be believed, and if what we have heard being said in the chamber can also be believed, then the spiritual road to Damascus is extremely busy. There is traffic congestion. We have people moving up, people coming back, people moving on to Baghdad and people moving down to the Dead Sea. I think we all need to consider whether or not we are going to take this journey down the road to Damascus. If we do, once we start we should not look back.

During the election campaign in Tasmania, the question often put to me by republicans and others was which model did I favour. The choice put to me was the direct election of the president or a parliamentary election. Not to disregard the views of such people, I stated that I have always believed in the parliamentary process and in the appointment and dismissal of the president. This view is consistent with the position of the ARM. But, importantly, I stated that it would be interesting for the case for direct election to be fully explored at the Convention and that options should not be closed off.

The case for direct election needs to be judged on its merits, as with any other case, including the case for the status quo. The issue of direct election creates problems, and I need not go through them as they have already been dealt with by speakers. However, at present there is insufficient detail coming from the advocates of direct election to persuade me that that is the preferred model at this stage.

The Convention now I think is getting back on track and it is hoped that all the recommendations from the working groups can be proceeded with. As mentioned, of the three models I prefer, the option advanced by Working Group C is preferred. The McGarvie model certainly is attractive. I want to thank the Hon. Richard McGarvie for forwarding to me his proposal, along with accompanying correspondence. I am of the opinion that the opportunity to advance Australia to a republic should not be lost because of some blind and uncompromising commitment to a preferred model.

As I said, the McGarvie model is attractive, but there are problems I see with a triumvirate assuming the role of Her Majesty in the appointment of the head of state. Unfortunately judges do not always get it right, and the hierarchy of courts I think demonstrates that. Indeed, governors-general and governors do not always get it right. The triumvirate is not necessarily a bad idea, but perhaps it could be more broadly based as regards skills and qualifications. The McGarvie model is certainly workable and should not be lost if at the end of the day an impasse is to be created as to which preferred model of republicanism in Australia is to advance.

Preferred models can be adopted with modification if such modifications are constitutionally sound, workable, have public endorsement and do not remove the role of the states or territories. I contend that, whatever republican model is adopted, public involvement is essential to keep faith with the people and to give the public some participatory role. Involvement of the states, I stress, is also essential. Working Group C involves the federal parliament and therefore involves the states and territories through their elected representatives. Over the years, the states have struggled to have a voice in consideration of treaties that the federal government proposes to enter into which affect the states. The states have struggled to be consulted about High Court appointments. Surely there should be a mechanism to involve the states in the important question of who is to be the head of state.

An advance on the Working Group C proposal by some consideration of public involvement and particularly involvement of the state and territory parliaments seems to me desirable. Indeed, such a method or process could also be considered in relation to expanding the model advanced by Richard McGarvie. The position of the states and territories needs to be considered. It is important that the states are carried by this Convention in determining a preferred model if the status quo is not to prevail. Recommendations for the working groups should go forward.

Ms MARY KELLY- As you know, I support and give preference to full codification and popular election as a package. But I want to pick up on a thread that runs through all of our debates. For me, the thread which connects the powers question to the election and appointment question is the Australian people's alienation from the political process. It is also a thread that, if teased out, drives us all in a certain direction on the appointment and dismissal question.

How did the idea of popular election take hold in the community? For a while I found it puzzling. Where did this longing come from? It is not as though people already had a direct say in the Governor-General now or even that they were overwhelmed with love for that position. Many people are barely aware of it. No, it is because we were offered two choices. Who should choose the head of state: two-thirds of parliament or all citizens? That was no contest out there. People did not trust their own elected representatives to choose for them. In fact, they actively opposed it on the grounds that those representatives would just pick someone like themselves, a politician.

People's alienation from their representatives has been noticeable for about a decade and has been increasing over that period. This alienation has increased their sense of aloneness and vulnerability. They feel without a champion or protector, and troubled economic times has fuelled and reinforced that feeling. No wonder they want to reinvent a champion and protector in the position of the head of state.

This is a state of affairs that worries me deeply. I want to make it clear that I do not want to capitalise on people's dislike for politicians; I want to reverse it. I see it as part of a broader social malaise which I call the slow death of active citizenship. I have spent most of my life trying to reverse that- for 10 years as a high school teacher getting students to engage in citizenship activities and civic duties, for 10 years as an elected union official getting teachers around the country to engage in public policy formation both professionally and industrially, and in a different way now in my own job.

I have America in my peripheral vision where the `government as enemy' mantra has led to violence in some cases. Part of why the popular election idea has taken hold in the public mind is also because the head of state is being considered in an artificially separated way from the rest of parliament- the two houses- and this has served to iconise the role and lead people to invest all their hopes and aspirations in it. It may be that if reforms to the two houses were also on the agenda, both this one and the public agenda, people's focus on popular election would be less intense. This Convention, however, chose not to broaden the agenda. In any case it is too late, the horse has bolted and people have it in their heads. If the option is taken away from them, they will experience it as theft and their cynicism and alienation will increase, and the slow death of active citizenship will be given another boost along.

I am not a populist. I am deeply distrustful of populism. For example, it would not matter to me how many polls showed people overwhelmingly supported, say, capital punishment. Nothing would make me vote for it. I think popular election with codification is the way to go, not just because people want it but because it will help to reverse the slow death of active citizenship. People's desire for popular election can be seen not just as a barrier to the perfect model but as a gift to be used for good. Accompanied by full codification, popular election could be used to reconnect people to their governance structures. There would be a ripple effect into the two houses of parliament. I believe that it would assist people to feel again part of Australia's major decision making structures. If we followed it up at the next convention or like discussion with some overdue reforms to the two houses, we would have the whole picture about right.

When the motion for full codification, which for many is part and parcel of popular election, was so briskly and brutally knocked off on day 2, I was angered. It is the sort of factional blocking behaviour which people recognise and dislike about their politicians and would have sent a very negative message out. It caused delegates like me, whose support for popular election has always been conditional, to become loud advocates of it, to get it back in the picture. From a pro-republican point of view, it was also a very high-risk strategy. I agree with Peter Beattie's assessment and that of others that the minimalist republican model is defeatable in a referendum.

In terms of nomination, I support open nomination with some sort of short-listing or filtering process, the values and criteria for which need to be explicit and the decisions non-appealable. For those who point to the reluctance of former Governors-General who have performed well to subject themselves to or nominate for such a process, I point out that the potential for greatness is widespread in our community and not confined to those who are like those who have already displayed it.

I am sure we all struggle in our own way to make the world a better place. I conceive of that struggle in inheritance terms. That is, we take the work of our forebears and build on it and hand it on to our children. Our task then becomes not just to persist in the time we are given in our efforts but to be on the lookout for those moments and turning points that come our way and to use them and not waste them. I have come to the view that people's desire for popular election is one of those gift moments and one of those opportunities for a quantum leap in reform that may not be available again for decades; and I do not want to see it wasted. In the lead-up to the new century people will be more open-minded and adventurous than in the past and that the next few years is an open moment in Australia's history. It is entirely possible, as well as desirable, that popular election with full codification could succeed in a referendum, and certainly in a multiple choice plebiscite.

Out of respect for the dialogue still to be completed, I will be voting for all pro-republican options this afternoon, that is, A, B, C, D and F, but in the knowledge that if we end up in a plebiscite debate all options return anyway.

Finally, I want to say that my pro-republican, pro-popular election and pro-codification views are not driven by worrying about who opens the Olympics. I do not care whether the flag changes and what the head of state is called. I have no objections to former politicians becoming heads of state; I just do not want anyone who becomes a head of state to have political powers to exercise. I do not really care about those symbols and trappings. What engages me is the real life of our citizens and reversing the slow death of active citizenship. The best way to do that is to combine popular election with full codification as represented in resolutions 7A and 7B from day two.

CHAIRMAN- Before I call on Dr David Flint, I remind delegates that we still have quite a long list of people to do. Technically we should have been in the speakers from the floor section at this stage but, because we have had so many who have not spoken before, I thought it better to allow the 10-minute speeches. We are due to consider the report from the resolutions committee at 12 o'clock. I will therefore allow 10-minute speeches until then. After Mr Clem Jones we will cut off speakers on the 10 minutes, and immediately after lunch when we resume we will go back to the speakers from the floor, which means that each speaker will have only five minutes instead of 10 minutes, which will allow more speakers to get on.

So to forewarn you, I give notice that after calling Dr David Flint I will call Mr Clem Jones, and we should then be able to receive the report from the resolutions group and subject to the time taken for that debate, for which we have allowed until 1 o'clock, we will adjourn for lunch. Immediately after lunch we will return and five minutes will be allowed for all subsequent speakers on the same group of issues we have been debating this morning.

Dr FLINT- Delegates, Mr Sutherland graciously gave me his place in the list, but he did ask me to draw your attention to page 141 of yesterday's Hansard in which he is reported as interjecting, `What about Keating?' Mr Sutherland asked me to tell you that he did not interject. But he did not ask me to tell you what he thinks about Mr Keating or how often he thinks about Mr Keating.

I take as my test these words from the annals of Tacitus: re publicae forma laudari facilius quam evenire; that is, it is easier to praise a republican model than to make it work. The founders of this nation made a remarkable achievement, which is recorded in Quick and Garran:

Never before have a group of self governing independent communities, without external pressure or foreign complications, deliberately chosen to come together as one people from a simple and intellectual conviction of the folly of disunion and the advantages of nationhood.

The great benefit of that constitution is that it gives us a head of state which is, above all, benign and we are here, I hope, to protect that benign head of state from becoming malignant.

Randolph Churchill once underwent an operation for a suspected cancer. Mostly they found that it was benign, about which Evelyn Waugh mischievously observed:

Such are the wonders of British medicine that when they opened up dear Randolph, they found the only part of him that is not malignant.

Delegates, let us open the republican models and, perhaps with Tacitus, we may praise them but we should ask, do they work? Apart from the direct election model, we have two models which Mr Paddy McGuinness describes as the `stuffed shirt' models. So we have the two stuffed shirt models.

The method of appointment in the Keating version has been well debated here but it lacks, as we know, the informality and speed of our present constitution, although I must say I doubt the proposition made yesterday that Her Majesty would act on the telephone call; certainly she would not after that Quebecois disc jockey telephoned her live on radio posing as the Canadian Prime Minister.

While the two-thirds vote may provide a stuffed shirt, there is no guarantee that it will provide a virtuous stuffed shirt. The new President of Pakistan, elected in the last few weeks, is not the sort of president that you or I would wish. He will be obviously the Prime Minister's man. The new president did not obtain a two-thirds majority; he obtained a majority in the parliamentary college of 78 per cent, and he is no virtuous stuffed shirt.

The method of appointment proposed in the Keating model would send shivers down the backs of the American founding fathers. As Hamilton argued, there must be no connection between the President and the Congress. If the President is to be fearless in his treatment of Congress, he must not owe his election to them.

But the fundamental weakness of the Keating model is the same as the ARM pointed out in relation to direct election- it desperately needs codification. A two-thirds election is a two-thirds vote and a two-thirds majority is the mother of all mandates. As Bill Hayden says, the president is capable of turning out not only as a first-rate nuisance but worse. What the Keating model will result in is something akin to the French 5th republic, where there is a permanent tension between the Elysee Palace and the Hotel Matignon.

Why should we follow France in 200 years? She has had 16 constitutions, five republics, three monarchies, two empires and a number of revolutionary and dictatorial regimes. The sanction in Westminster is in the dismissal. As Hardin says about parliamentary Westminster systems, they can `quickly, expeditiously and legitimately replace leaders who have been found inadequate for the occasion'. That is the virtue of Westminster. History tells us that any attempt to graft a republic onto Westminster invariably results in an inferior model.

Does the model proposed by the eloquent Mr McGarvie provide the solution? Let us look at dismissal. Will the judges on the Constitutional Council require that natural justice be given to the president and that the president must have notice that the grounds, the breaches of the Convention which have occurred, are set out in the notice of dismissal? Will the judges on the Constitutional Council ask for proof of the conventions? Have the conventions carried over into the republic? One problem which Mr Evan Whitton points out is that sometimes judges have a strange view of the world. He says that there is something in the common law water perhaps. Others say that perhaps former judges and governors may suffer from limelight deprivation and they may need to prolong the proceedings.

What is the problem? Is there a problem if these models produce delay and instability in the time that a dismissal is proposed and a dismissal is realised? In 1975 the situation was very different. In 1975 Australia was a closed economy. Things are different now. We are a global economy. The judges of what happens in Australia are Messrs Standard and Poor and Moody's, and they are tougher than Texan judges. The decision and the execution will follow very quickly if we are having an unstable period of government. It will be the economy and employment and the dollar which will suffer.

Juan Linz, in his review of East European attempts to establish legitimate democracies, says that crises in Westminster systems are crises of government. Crises in presidential systems are more likely than not to be crises of regimes. Does this mean that we will have a first republic and a second republic? Will we be like our neighbour, Fiji, which had a bicultural monarchy, moved to a racist republic and is in the process of moving back to a bicultural monarchy?

The worst problem, I fear, with Mr McGarvie's model is the danger of political capture. You have all heard of regulatory capture; this is political capture. The example is Sweden. In Sweden in 1974, it was decided to hand the king's reserve powers to the Speaker. The Speaker before that was a position seen to be above the political battle.

Immediately after 1974, the Convention about the election of the Speaker was torn up. It became a political prize. That is the danger- that, once it is seen that positions lead to positions of power, they will become political prizes, as we have seen in Pakistan. In Pakistan, not only has the President been a political prize but now also the Chief Justice is. The last Chief Justice was ousted a few weeks ago by the other judges because he was seen to be in opposition to the Prime Minister.

The final model is the American model, the direct election model. If the Australian people, after an informed debate, come to the conclusion that they wish to directly elect their president, they should look seriously at the American model.

What is the solution? The solution, I suspect, is in another country- another country which on every economic indicator outperforms us, which sits at the top table in the economic and political councils of the world; a country which has a Bill of Rights; a country whose people and diplomats have no difficulty in explaining to other people whom their head of state is and how the head of state is chosen. That country, of course, is Canada. As Professor Edward McWhinney, the leading Canadian international legal expert, says, anybody who pushed a republic in Canada would be dismissed as an incompetent obsessed with trivia.

CHAIRMAN- I am afraid your time has expired, Dr Flint. As we have no time for an extension, I am afraid we have run out of time. We have 10 minutes to get on to what we determined yesterday would happen at 12 noon. I am sorry.

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Last updated: 21 October 2000