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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
Friday, 6 February 1998
Page 2

CHAIRMAN- Thank you, Professor Blainey. It had been my intention to propose, subject to whether we get any time on general addresses today, that we conserve sitting next Tuesday evening to allow some further general addresses. I hope also that we get some time for general addresses on Monday. Tuesday will be allocated entirely to general addresses. I think we will take your proposal, Professor Blainey, as a notice which we will take up at an appropriate time. I call on Ms Axarlis.

 

Ms AXARLIS- Mr Chairman, first of all I must applaud the way you and Barry Jones have conducted these meetings. I am in awe of your ability. I realise the stress under which your office is working. However, in the best interests of true democracy, could I please ask that the speakers who have already spoken three and four times speak to the issue and not on irrelevant matters and that the people who have not had a chance to speak and are reluctant to push themselves- and there are many in this room, particularly women- have a chance to have their say, not in five minutes but in due fairness in 10 minutes. I agree with the revered Professor Blainey.

I think it is very important to declare yourself because the office is in a very difficult situation. Also in the interests of true debate, we should not have the situation we had yesterday where, with all due respects, the status quo was being repeatedly stated while none of the other positions were able to be discussed. I do not think that really reaches a fair debate.

 

Mr RUXTON- Oh, come on!

 

Ms AXARLIS- Excuse me.

 

CHAIRMAN- Order!

 

Ms AXARLIS- I have been very respectful to that side of the House for the entire week.

 

CHAIRMAN- Order! Ms Axarlis has the floor, thank you.

 

Ms AXARLIS- Thank you, Mr Chairman. Simply declare constitutional monarchy, undeclared, republican or monarchists. Let us have one after another in a manner which really allows us to have true debate and brings our thoughts in place, particularly for those who are not sure of the way they want to go.

 

CHAIRMAN- Thank you, Ms Axarlis. It is difficult to determine a speaker's view until they have spoken. One of my difficulties in allocating order has been to know just what that person's view might be. I accept what you say. It would be good to have a debate, sometimes it is hard to allocate as you prefer.

 

Sir DAVID SMITH- Mr Chairman, I have a procedural matter. As you know, you allowed Professor David Flint to be my proxy yesterday to enable me to attend a friend's funeral. At the end of his speech he ran out of time. It was close to 12 and you ruled that there was to be no extension of time and that was far enough. There had been, however, some extensions of time granted earlier in the day. I wondered if you would enable me now to table Professor Flint's complete speech simply for the record.

 

CHAIRMAN- Yes.

 

Senator FAULKNER- Could I make a further procedural point, Mr Chairman. Yesterday you would recall that I raised the issue of the Notice Paper actually reflecting the order of business that the Convention was dealing with. I do appreciate the flexibility that you have to amend the Order of Proceedings if you consider that necessary for the effective conduct of business. I do agree with you that it would be useful to bring voting on a little earlier today because of the time constraints we have for the conclusion of today's session.

The point I would make to you, Mr Chairman, is this: nowhere on the Notice Paper is there any clear indication to delegates to this Convention that voting in the plenary session will commence at 3.45 p.m. You have properly made that announcement to the Convention today. I believe that, if a delegate to the Convention is not either in the Convention when you made such an announcement or listening on the monitor, it is very difficult for them to be aware of what is occurring.

I think this is in the interests of all delegates, regardless of what position they might hold on the issues before the chair. What I submit to you, respectfully, Mr Chairman, is that the secretariat undertake whatever is necessary, and that maximum effort is put in, to ensuring that delegates to this Convention are aware that those changes to the Order of Proceedings have taken place. It is a substantive point. Delegates are entitled, having adopted rules of debate and an Order of Proceedings that says that voting starts at 4 o'clock, to be made aware if there is a change to those procedures. I think this is important for all of us and the integrity of decisions that this Convention makes.

 

CHAIRMAN- An amended Notice Paper is being distributed to all delegates to meet the requirement. Obviously people do need to have the official paper. It will be boxed subject to people collecting material from their boxes, but I take the point. Any other procedural matters?

 

Ms DELAHUNTY- I have a point of clarification on the question of proxies. We have noticed as the long days and evenings continue that the question of stamina comes into play. However, the formal point I would like you to adjudicate on is: should a proxy be allowed only to vote and not to speak? Unless we were elected or appointed to this Convention, I have assumed that you would not speak as a proxy but simply vote.

 

CHAIRMAN- The ruling that I have made is that a person who is given a proxy cannot speak on an issue if the person for whom that proxy is issued has already spoken on that issue. For example, if a person has given a general address and has appointed a proxy then there is no longer a vehicle available for that person who is a proxy to give a general address until such stage as everybody else has finished and if everybody else gets an opportunity. At this stage that is unlikely.

Similarly, if a proxy is appointed for a person who has spoken on an issue, then that proxy is not allowed to speak on the issue. I have allowed them to speak subject only to whether the person whom they are representing has not already spoken on that particular debate. That is the normal way in which proxies work. They are allowed to vote on behalf of that person because, again, that person for whom they are the representative cannot have voted at the time because they would not have been there. So they have a right to speak, subject to the person whom they are representing not having spoken and a right to vote on the proxy's behalf.

 

Mr GARETH EVANS- There is just one more matter arising out of the report of the Resolutions Group which I would like to draw to the attention of delegates- that is, a document headed `Transitional and other provisions'. If it has not been circulated already, it shortly will be circulated. That is a list, not itself again purporting to be an exhaustive list, of those transitional and consequential matters which delegates might like to refer to when making contributions under resolution 3.

There is one specific aspect of this issue that has not been addressed in that particular document- it has been left out- and that is the matter raised by Professor Winterton in relation to immunity. I undertook to Professor Winterton to mention to the Convention that the Resolutions Group did briefly consider the question of civil and criminal immunity in relation to the head of state. The view we took, for what it is worth, is that the existing presumptions should continue, namely, that the head of state is not immune from criminal prosecution but should be immune from civil prosecution in relation to matters associated with the conduct of his office.

That is probably not a matter that needs renewed attention. Nonetheless, if the parliament wishes to take it up in the course of drafting the appropriate provisions to the amendment, it should do so, but it does not appear to be a matter that should sensibly attract debate at this Convention. We accordingly made no recommendation for there to be specific reference for that. I hope that is sufficient to get it onto the record for further consideration as need be.

CHAIRMAN- Before we start on the debate, are there any other interventions on procedural matters? I do not want to deny anybody the right to speak on them. If there are no further interventions, we will commence our debate.

 

Professor BLAINEY- I would like to foreshadow a motion that, on the final day, when the vote has to be taken on the propositions, if there are more than two propositions, we consider a preferential or optional preferential voting system. With thought, it can be devised both by show of hands and then by the formal submission of a preferential ballot. We should be thinking at this stage of how we conduct the final important stage.

 

CHAIRMAN- Thank you very much. We have given some thought to this. It is my intention to raise it for the consideration of the Convention early next week.

 

Dr COCCHIARO- Can the working groups now move into their rooms?

 

CHAIRMAN- Yes, the working groups can go to their rooms. I hope that at 11 o'clock you can give us an indication of how you are progressing. If you cannot make a report then, we will defer the reports of the working groups until after lunch. The trouble is that I do not know how long you need in order to reach report stage. If you can let the Convention secretariat know by 11 o'clock, I can report on your progress to the Convention, and we will then determine when the reports from the working groups can be made.

I am not trying to accelerate your work. As I indicated, if need be, the working groups can have the reports in today and the debate can take place on Monday if we run out of time today. I am trying to accelerate the process if I can. At 11 o'clock, if you can give the Convention secretariat an idea of your progress I can report back to the Convention and advise when we will be dealing with those reports in plenary session.

 

Professor WINTERTON- Just a point of clarification: what subject are we about to debate now?

 

CHAIRMAN- We are now dealing with the Resolutions Group report, which is circulated to all members on the green paper headed `Constitutional Convention: Resolution of the Resolutions Group Concerning Transitional and Other Matters'. It is a matter that was moved by Gareth Evans and we are going to deal with each of these points one by one. I suggested that, having dealt with (1), which is the name `Commonwealth of Australia' and membership of the Commonwealth of Nations, we would then, by the time we had got down to (c), be free to foreshadow other matters that might be dealt with, such as the immunity question raised by Professor Winterton if delegates wish to canvass it.

I call for contributions on the floor for the Resolutions Group recommendation (1). We will be having formal resolutions on all these matters later in the day, when we shall be putting the questions. I will treat the debate as we did yesterday. There will be a three-minute speech from the mover. The motion will then be seconded. We will put the resolutions one by one. Are there any contributions from the floor on that first question?

 

Resolution (1)

 

Resolution (2)

 

Dr FITZGERALD- I think this is a foregone conclusion. I think it is put there by way of explanation. There is a large group of people out in the community who are quite ignorant of what the Commonwealth means. I have heard a member of parliament say, `I am not sure whether we should become a republic because that would mean we would not be in the Commonwealth any longer.' The facts are that there are 53 countries at present in the Commonwealth of Nations. Of those, for the record, 16 monarchies recognise Queen Elizabeth as the head of state; five monarchies have their own monarch; and 32 countries are republics.

 

Mr RUXTON- They're all crook.

Dr FITZGERALD- I note your interjection, but I am afraid defamation law does not allow me to respond to you on that issue. It is important to know that the Commonwealth is a symbol, it is a name; it does not change very much. I just thought I would put those facts to you because out in the general public there is a wide group of people who are not aware of the facts. There are two Commonwealth organisations. We just had the Heads of Government Meeting; another organisation that I belong to is the Commonwealth Parliamentary Association, which mirrors this other organisation and which deals with the parliaments.

There are 140 parliaments in the Commonwealth at this stage, if you want to know how large an organisation it is. It is a massive organisation in the world. There are countries trying to get into the Commonwealth at present that might surprise you: Yemen, Palestine, Mozambique. These countries are not necessarily of British stock. It is a highly respected organisation throughout the world and, whatever our status, I totally support Australia staying in the Commonwealth.

 

CHAIRMAN- Thank you, Mr Fitzgerald.

 

Ms HOLMES a COURT- I would like to support that. I do not think that many Australians want us to make as large a change as some people are wishing. For us to leave the Commonwealth would certainly be an enormous change. I have to say old habits die hard and I cannot help being a teacher. Somebody mentioned the other day, with sadness in her voice, that we are going to end up with the lowest common denominator. As a teacher, I know that when people say that they really mean the highest common factor. I think that we are, in fact, searching here for the highest common factor amongst us all and, after the end of four days, we really should be proud of ourselves that we have made great progress.

We have had four cabinet ministers- my old friend Daryl Williams, my old boss Peter Costello, my associates with whom I work, Richard Alston, and my new friend, I hope, Senator Hill, not people I would normally be expecting to share my views- come across to my views. We have had premiers and leaders of opposition. We have had a very broad group. I have found it most enjoyable to be here communicating and eating with people who normally would not invite me to share anything with them. I was sharing an oyster with Professor Blainey the other night and a meal with Bruce Ruxton. It is great. I am not putting Michael Hodgman in that category.

When discussing the preamble, we want some goodwill. In fact, we want buckets of goodwill at this Convention. The Australian Republican Movement has come here in goodwill and we have made concessions. My own views have been modified, they have been varied, they have been accentuated in some ways and they have been adapted as the week has progressed. I sincerely hope that for the rest of this Convention we can reject the politics of personality. It is much too important for that. Personality attacks are indicative of a bankruptcy of ideas.

This Convention is a learning experience for us all. It is a learning experience for Australia. It is the first experiment we have had with this type of proportional representation and it has been successful in bringing together the most remarkable group of Australians. You cannot help, at my age, feeling confident in the future of this country with the young people who are here who will inherit this nation.

Sir James this morning objected to press coverage. I think that amongst those people who are learning about this are, in fact, the fourth estate. The journalists who come to this room normally come to see people win, to beat each other over the head, to operate in an adversarial way. In business, people are learning that adversarial tactics no longer work. We have partnerships, we have alliances, we have associations, and I can tell you it works extremely well. We are not here for the traditional method of debate. We are here to find the highest common factor.

In the debate on the preamble, as in all debates, there will be a huge divergence of ideas. Please, this does not mean there is a split; this means we are simply people here putting our views, expressing our views and sussing out what others think so that we can find that highest common factor. Maybe this will be very exciting in that it will set an example to parliamentarians, for whom my personal respect has always been high and is growing daily. Since spending these few days in Canberra, my admiration for parliamentarians has grown immensely when I think of the deprivation involved in their being away from family and friends and lack of communication through being here- hours spent in aeroplanes away from their family.

CHAIRMAN- Thank you, Ms Holmes a Court. While Ms Axarlis is coming to the microphone, there is a further explanatory paper entitled `Transitional and other provisions' being distributed. That is being distributed on official paper because it is a list of other transitional matters to which delegates might wish to give attention.

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Last updated: 21 October 2000