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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 7

Mr CLEM JONES- First of all, I thank you, Mr Chairman, for your indulgence in allowing me to speak at this time. I intended to speak yesterday afternoon and to say something which I probably would not say today. But, unfortunately, I issued my speech to the press before I came in to make it, and you, Mr Chairman, have kindly allowed me to make that speech now.

First of all, I would like to refer to a paper submitted by the Hon. Mike Rann. He said:

 

Most if not all of us hold strong views about the issues we are charged to discuss during the next two weeks. We would be foolish however to cling to either rigid dogma or to a fixed non-negotiable formula. To do so would be to fail the Australian people and, just as importantly, to fail the test of history. As delegates we must have open minds rather than pretend pompously to know all the answers.

 

On Tuesday we witnessed a situation which I found totally deplorable. We saw the very antithesis of the republican philosophy which surely guides us in our other deliberations- the philosophy espoused by Mr Rann when he said it would be foolish to cling to rigid dogmas or a affixed non-negotiable formula.

Perhaps we did not cling on Tuesday to a fixed non-negotiable dogma, but we certainly excluded one of the most vital considerations, one of the major concepts which needed to be discussed at this Convention, the most important aspect perhaps of our deliberations: fundamental to the concept of a republic is the right of people to participate in it. Where should that start? Surely at the very beginning in the determination of the nature of a republic which suits the needs and culture of our society.

On Tuesday the ARM was responsible for a situation whereby no constructive proposal for the election of a head of state by the people could be presented to either this Convention or the people of Australia. Hopefully that will be remedied, but it must be an intentional effort to remedy it and not just a postponement of the same thing.

Malcolm Turnbull may have the numbers to achieve this sort of thing in this chamber; he does not have them in the suburbs of our city in the broadacres of our nation. The people of this country will eventually tell him that. But the sad result is likely to be, as has been so well expressed by others already, that we will not have a republic, or at least a true republic, in this country perhaps for a generation to come.

Even worse, if perchance their model- or indeed any other possible model or now possible model- were accepted, there will never be a change to provide for the say of the people in the choice of their head of state. Once the power has become enshrined in the parliament, politicians will never let it go. The man who has personally been responsible for this, the man who seeks to espouse the cause, the man who seeks to be the father of it, Malcolm Turnbull, has become its potential destroyer. Sadly, had that man done as he promised to do- to take note of the wishes of the people and to meet them- he could have retained the title of `Father of the Republic'. Unfortunately, if the path along which he wishes us to tread is successful, I believe that he will become known as the mother of disaster.

 

Mr TURNBULL- Are you proposing a sex change, Clem?

 

Mr CLEM JONES- I do not know, I would not have any knowledge of what happens to mothers of disaster. May I make one of two appeals. The first is to the monarchists, whose integrity of purpose one must admire. We tried to arrange to have the votes on the vital question earlier to enable them to participate in the discussions on the nature of the various other models for a republic. I again appeal to them to support this idea so that we can have input from those people who have vast experience in the government of this country, vast experience in the way this country has developed to play their part in developing these models that we have been talking about over the last few days.

I would like to make a second appeal. I am not quite sure how it can be achieved. Perhaps it should be initiated from the chair or perhaps from the Prime Minister. The plea I make is that we give some thought to the necessity perhaps of having a plebiscite following this Convention to decide which of the three models generally canvassed should go before the people so that we may let the people decide.

Let me now touch on the most hysterical red herring that Malcolm Turnbull has set swimming in the murky waters of his various presentations in opposition to having the people of Australia make a contribution to this exercise. This is his suggestion: that popular election of the president would mean greater powers for the Senate in relation to the granting of supply. May I submit that this is a total and absolute furphy. I think Professor O'Brien described it as nonsense, but he is more polite than I am.

I am not a lawyer, but I do not believe that it is beyond the capacity of those eminent in that area who are here today and perhaps elsewhere in this nation to provide in our Constitution that the head of state, among other things, should not dissolve the House of Representatives consequent upon the Senate refusing supply unless requested to do so by the House of Representatives or perhaps the Prime Minister. I do not believe that it is not possible to simply provide that in the codification that you have as necessary in the development of a republic.

I do not propose at this time to go through the proposals of the working groups except to refer quickly to the claims made that it is not possible to provide safeguards against conflict between the head of state and the Prime Minister- if the people elect the former that it is not possible to avoid political overtones of various kinds in such an election and so on. You will have noted that there has been a careful avoidance to present in this context of the Clem Jones Queensland Constitutional Republic Team codification of the proposed powers and functions of the president of the Commonwealth of Australia, widely circulated to delegates. We have made it clear that we are not dogmatic in this presentation.

After talking to people from all walks of life, we have come up with a proposal and I will read it. David Muir has already mentioned some of the proposals to you. I will quickly state the conditions which we provide for the election of a president- you will see that it covers the point that has been made so often in this chamber so far: that the candidates for president must not at the time of the issuing of writs for such an election be a member of a house of parliament of the Commonwealth of Australia nor a member of any house of parliament of any of the states or territories; that candidates for president must not at the time of issuing of writs for such an election be a member of a political party; and that the president during his or her term of office shall not be a member of a party.

This is the important one from this point of view: it will not be unlawful and cause the nomination of a candidate for the office of president to be declared invalid if during an election for such office he or she actively seeks support for or from a party or candidates contesting a concurrent election, and we provide for the election to be held at the same time as the House of Representatives election for the parliament of the Commonwealth of Australia.

It will be unlawful and cause a nomination of candidate for the Senate and House of Representatives to be declared unlawful if during an election for such office he or she actively seeks support for or from a candidate contesting the concurrent election for the office of president in the Commonwealth of Australia. I think that would conclusively deal with it if it were introduced- and it can be- into the electoral act or, where necessary, into the Constitution. We advise that there is no impediment to making that requirement of candidates for election.

I believe we are moving towards a plebiscite at this time. I think the events of the last three days have shown that we are going to have great difficulty in coming to any consensus. If the various factions should, if that is the case, move towards putting their best form of what they believe in not the emasculated form which will come out of the working groups as they are now structured, I suggest the advancement of the idea of a plebiscite should be considered by this Convention. If we are not going- as I believe is the case- to achieve an acceptable consensus, then this would give the people of Australia the best opportunity of choosing the option which would then be presented to them in the best possible form.

I leave you with the thought that there are urgent issues of intent and integrity in the achievement of our goals still before this chamber. They urgently need to be addressed by this Convention. This means a change in direction and I urge you that we take it.

 

Brigadier GARLAND- Mr Chairman, I raise a point of order. During the discussions this morning there have been a number of extensions allowed to various speakers. Indeed, Delegate Mary Delahunty was not only given an extension but also got an extra minute after the extension expired in order to complete her speech. I believe that was discrimination when the vote was not even put to the floor for Dr Flint. I believe that should be remedied. I believe the remarks that he was unable to make in an extension period should be incorporated not just into the proceedings of the day but also into the Hansard.

 

CHAIRMAN- Thank you very much, Brigadier Garland. You should note that Dr Flint is here as a proxy, that he was allowed time as a person who had not spoken, although Mr Smith, whose place he is taking, has already spoken on a number of occasions. For that reason, he was allowed on the agenda with 10 minutes whereas those speakers this afternoon are to be allowed only five. In the circumstances, and as we decided yesterday that at 12 o'clock we are going to consider the resolution from the resolutions committee, I believe it appropriate that we should do that.

Brigadier Garland has moved that the balance of Dr Flint's speech be incorporated in Hansard. I point out to you that that is not possible because I do not know whether Dr Flint was speaking from a written note. In any event, the basis of incorporation of material into Hansard is laid down in our rules of debate. I suspend the debate on the matter before the chair: that is, the working group reports.

In accordance with yesterday's decision, I now propose to receive the resolutions group proposal concerning Convention procedures and role of the resolutions group. This will be considered on the basis of the Attorney-General, Mr Daryl Williams, who will be presenting the report. He will be followed, if need be, by Mr Gareth Evans, within a total allocated time slot of 15 minutes. Subsequently, up to 1 o'clock, if need be, intervention from the floor will be allowed for three minutes per person. The debate will then be adjourned and the vote will be taken at 4 p.m. so that all delegates, having had this opportunity for a debate, will have an opportunity to consider the report between the time of the presentation now and the putting of the vote at 4 o'clock. If there are amendments or if there are other proposals, they will be capable of being put during the period up to 1 o'clock, but no questions themselves nor votes will be taken until 4 o'clock this afternoon. I call on Mr Daryl Williams to present the report on behalf of the resolutions group.

 

Mr WILLIAMS- The report I am presenting, an oral one, is effectively a unanimous report of the resolutions group. The resolutions group has wide ranging representation on it. I therefore anticipate and hope that the time allowed for debate on this will prove unnecessary and that the recommendations will meet with the unanimous agreement of the Convention. Let me start with highlighting that there are three separate resolutions, A, B and C, recommended. You should have had a copy circulated to you on green paper. First, I draw attention to B(2). The role of the resolutions group is seen by that group in the terms of paragraph B(2):

 

The primary responsibility of the Resolutions Group is to formulate for consideration by the Convention in its Final Plenary Sessions-

 

that is, on days nine and 10-

 

a series of draft resolutions-

 

to be called `final plenary resolutions'-

 

which as systematically and comprehensively as practicable expose for debate and decision all those proposals which, in the judgement of the Resolutions Group, have attracted significant support amongst Convention delegates.

 

The resolutions in A and B address how that result might be achieved. Resolution B(3) states:

 

In formulating Final Plenary Resolutions the Resolutions Group shall take into account:

 

That gives a fairly wide term of reference in that respect to the resolutions group. It will be able to have access to a wide range of material in preparing the final plenary resolutions for consideration by the Convention. But that will not be the end of it as far as the Convention is concerned because, as noted in (4), the final plenary resolutions will remain subject to additional amendments, which may even be moved from the floor during the final plenary session.

There has been some debate, and in foreshadowing this motion yesterday Gareth Evans referred expressly to the motions that have been dealt with in the first voting session being excluded if they did not achieve 50 per cent support. Resolution A(1) is designed to achieve a greater degree of flexibility there. In future plenary sessions it is recommended that on key issues all resolutions that achieve a level of support of at least 25 per cent of delegates present and voting, either on a counted vote or, in the absence of a count, in the judgment of the chairman, should be forwarded to the resolutions group with a view to their subject matter being further considered by the Convention.

They represent the distilled wisdom of the members of the resolutions group in relation to the process by which final plenary resolutions are to be developed for consideration in the final plenary session. The group has also considered what might happen at the final plenary sessions and in C, resolution 5, it is proposed to request the Chairman and Deputy Chairman, in consultation with the resolutions group, to bring forward a proposal for a two-stage process for the final plenary sessions, whereby in the event of no clear preference as between options emerging from the deliberations in stage 1, a further opportunity would be given in stage 2 for that preference to be expressed.

The situation that is contemplated there is that there could be a number of results in the final voting. It is contemplated that there will be models prepared of those models which achieve a modicum of support- the popular election model, the parliamentary election model, the McGarvie model and the status quo- and each of those will be considered separately. There will then be consideration, at least among the republican models, as to which is the preferred republican model.

The situation may be reached where there is no majority support for one model. It may also be the case that two models or three models achieve similar levels of support. The object of the Convention being to put a model to the government as a preferred model for a possible referendum, it would be appropriate, in the event that the first stage of voting does not achieve an identification of a preferred model, that there be a further stage of consideration with a view to seeing whether that result can be achieved. On that basis, there would need to be some appropriate procedure developed, which the resolutions group requests the Chairman and Deputy Chairman to consider in consultation with it.

There are two other matters. In the course of Gareth's preliminary report yesterday, mention was made of the possibility of voting on resolutions coming from working groups being sequential. The resolutions group proposes to request the Chairman and Deputy Chairman, in consultation with the group, to bring forward a proposal to the Convention to amend the order of proceedings to require consideration of working group resolutions in plenary sessions on days 4, 6, 7 and 8 to proceed on a sequential basis with voting on each resolution following immediately after consideration for not more than 20 minutes of that resolution. This would require amendment of the agenda and the time for debate. In the case of day 4- namely, today- it would require the plenary debate and voting to be brought forward by one hour.

It is not suggested that that is a matter for debate by the Convention now; that is a matter for the Chairman and Deputy Chairman to consider and, if appropriate, bring a suggestion to the Convention. If there is to be action to bring forward by one hour the plenary debate and voting today, then it would be appropriate, the rapporteurs suggest, to bring forward the voting on the resolutions that are now being proposed- namely, A, B and C- by one hour.

I have dealt with A, B and C together in one report. It may be appropriate that they be separately debated if it is the wish of the Convention to debate them at any length.

 

CHAIRMAN- Thank you, Mr Williams. There has now been a proposal, firstly from Mr Williams's review, sequentially, of A, B and C. Do you have a question on the general part or on A, Mr Ruxton?

 

Mr RUXTON- I would like to ask you a question. What the Attorney-General has just put forward means that those resolutions on day 2 are now null and void; is that correct?

 

CHAIRMAN- No, what it means is that, as I indicated, in order to accommodate Mr Gifford's remark the other day it would be possible for the Resolutions Committee to come forward on the final day with those resolutions that have been passed. This Convention, when it considers the Resolutions Committee report, will begin with the resolutions that have been passed. Having considered the Resolutions Committee, we will look at the Resolutions Committee report as the basis for further consideration by this Convention of all those resolutions which have been put and passed. So the answer to your question is no. Until such stage as those resolutions are varied by the will of this Convention they remain resolutions, but only provisional resolutions. It has always been the basis that final resolutions will be put before the Convention on day nine.

 

Mr RUXTON- All I can say is that you have an Attorney-General and a former Attorney-General of different political persuasions coming up with a proposition- I have never heard of a 25 per cent majority going forward anywhere. This is real snake oil. It is snake oil by the snake charmers over there. A 25 per cent majority- and that is if it is carried. I am sorry, Sir, I find that as something of risk.

 

CHAIRMAN- Thank you. We will take that as an intervention to which either the Attorney-General or Mr Evans will respond in due course. Are there any further interventions, either as general comment on the whole or in particular on A, B and C?

 

Professor PATRICK O'BRIEN- If I heard correctly, did Daryl Williams say that the vote will be put forward to 3 o'clock this afternoon?

 

CHAIRMAN- I was going to come to that in a moment. We cannot put a vote until we have taken a vote. The time allocated for voting is 4 o'clock. I am afraid it is not possible for us to advance that vote because we have already decided, under our order of proceedings, that there will be no vote taken until 4 p.m. So the request with regard to day four is not capable of being considered because of the earlier decision.

 

Professor PATRICK O'BRIEN- I believe that we should stick to whatever timetable was announced in today's sheet simply because it is possible that delegates may have made arrangements on that basis. I do not think we should jump around with the times, because it just creates total uncertainty. We should stick to what was circulated this morning.

 

Mr GARETH EVANS- Whatever may be the merits of dealing with it earlier rather than later, just on the process: is it not possible for the Convention at any stage to move that so much of standing orders be suspended as would enable the Convention to do something different from that which is in its standing orders? It is really quite absurd to be locked in if there is a mood to do something that we all want to do.

 

CHAIRMAN- Regrettably, we agreed to an order of proceedings and I would uphold the point that Professor O'Brien made that we agreed that there would be no votes before 4 p.m. Therefore, while you can move it, there can be no vote taken on that suspension of standing orders relating to 4 p.m.

Mr WRAN- Mr Chairman, I rise on a point of explanation. Clause B(3)(c) seems to me to give rise to the possibility of ambiguity. It refers to further amendments forwarded to the resolutions group. It is important that we delegates understand, if amendments are moved to the resolutions that go forward, how those resolutions will be dealt with by the committee and in what form they will come to the final plenary session.

For instance- this is very hypothetical- if there were a resolution with the resolutions group that a college of 400 persons be formed and after today there were an amendment that that should be 500 persons, would that amendment come back to the final plenary session or would it be dealt with by the committee and perhaps be incorporated in the original resolution? I think we need to know exactly what happens to amendments that are moved or submitted between now and the final plenary session.

 

Mr GARETH EVANS- You cannot legislate for commonsense. The intention is that the resolutions group nonetheless apply commonsense. The intention of the whole exercise, as explained in (2), is to bring forward at the end of the day resolutions which will assist the Convention move forward to an effective determination of the issues.

Obviously what the resolutions group will take into account is any further material coming to it by way of draft amendments or draft resolutions which do seem to reflect significant currents of view that are running in the Convention that have been the product of further discussion, consultation, negotiation, or whatever, in order to expose clearly the issues for Convention delegates at the end of the day. That is the intention of the exercise.

If, for example, on the one that you put- you have got a model emerging from the votes this afternoon proposing a college of 400- there is discussion over the weekend by the proponents of that particular thing and they have obviously got together and said, `It is a better proposal to make it 500, and we are advised in those terms,' it would go forward as 500. If you have got an individual delegate thinking in his own wisdom, but without consultation with anybody else, that it would be better if it were 500, probably, in that example, the resolutions group would say, `No, leave it in the form in which it was moved originally'- bearing in mind, and this is the final point, that it is always possible for any delegate to move from the floor or indeed, hopefully before we get to the final session, for any further amendment to enable a particular point of view to be exposed.

I add one more thing that I do not think Daryl mentioned in his further report. On the assumption that we will get to the final plenary session on Thursday, day 9, it is the intention of the resolutions group to have these final draft resolutions circulated to delegates the day before, on the Wednesday. Delegates will also be asked, if they have any amendments to the proposals coming forward to them from the resolutions group, to give them to the resolutions group on the Wednesday with a view to those further amendments being actually on the Notice Paper in their relevant places to enable again a clearer, less messy debate on the Thursday. That is the way we do it at ALP national conferences. It seems to work quite well, actually. We hope that that will assist. The whole point of the exercise is to have as commonsensical a fashion exposure of the issues.

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