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
Monday, 9 February 1998
Page 14

Mr BARRY JONES- The Attorney-General and the rapporteur of the Resolutions Group asked me to remind you that the alternative models that are to be circulated, which require 10 signatures from the delegates if they are to go ahead for further consideration, must be in by 2 o'clock tomorrow. Those people who want to prepare those alternative models, the exact wording of it has to be ready to be handed in by 2 o'clock tomorrow.

CHAIRMAN- If there are no further interventions, points of order or anything else, I call on Mr John Anderson to go on the general address. I remind delegates that there is quite a long list. As a result, we decided that 10 minutes would be allotted instead of the 15 originally allocated on the general address.

Mr ANDERSON- Delegates, thank you for the opportunity to say a few things, and in 10 minutes there is not much you can say. But I will touch on something that I think is a very deep malaise in the Australian community and that we need to face. It goes beyond the brief of this Convention to address, but I think, nonetheless, it is very germane to our considerations.

I want to illustrate it by saying that over the nine years I have been a member of parliament I have always enjoyed meeting the school groups, many of which come to Canberra from vast rural electorates. I always enjoy meeting with them. I enjoy working through with them how the place works and sharing with them some perspectives about our jobs and our roles. When I finish that, I always ask them this question: how many of you were told by your mums and dads before you got on the bus to come to Canberra that the politicians are all hopeless and that the government is making a mess of it?

Invariably, every hand goes up. I honestly cannot recall a hand not going up. I actually want to say to you that I find that truly alarming. Plainly, if our children are not being told the good news of our democratic heritage and the freedom it delivers- social, economic, personal- they will increasingly lose faith and hope in the way of government, which has delivered all these and more in a tumultuous century.

I go on to ask them where they would rather live and usually mention a few of those more troubled spots such as Rwanda, Ethiopia and the CIS. There are never any positive responses at all. I put it to them then that perhaps they would rather live in a regime from another era- Stalin's Russia or Hitler's Germany. Again, there is never a positive response. So I ask them why they would prefer to live in Australia. The responses are always interesting. They come thick and fast. They say, `We have lots of food. We don't go hungry. We're a rich country. We are free.' Yes, I say, but why are we all of those things and others are not? What is the difference?

What do you do, for example, if you live in an oppressive regime under a government that takes away your freedom, that lauds it over you, that sees you as accountable to it? The response is usually something along the lines of, `Well, you have to start a revolution. You have to go and get your guns and fight.' That always comes from the boys, interestingly enough, as a statement of fact, not a political comment. The question I ask then is: what do you do in Australia if do you not like your government? They see it very quickly- `You vote it out if you don't like it.' That is the chorus. Which is the best way? `Our way,' they respond with newfound gusto.

So I say to them, `As you grow up, as you approach the age where you will be required to vote, what are you going to do? Are you going to be a part of the problem- knock everyone, knock the system, undermine it- or are you going to work to make it better?' They usually respond in the positive.

I am sorry to say this but it seems to me to be palpably obvious that these simple but vital truths are not heard of by our young people in our community today. What are we doing to them? What are we doing to ourselves? Why do we seemingly have a death wish? Why do we fail to so recognise our own good fortune and why are we prepared to play so lightly with its underpinnings which are, of course, those of a stable democratic system of the sort that we enjoy in this country?

I think that these are very important issues at the heart of our future as our nation. That is not to say that the debate here about our future is not important; it is. Symbolism does matter and many Australians want to address that issue. But running alarmingly deeply through the current mood of the Australian people is a concern that the system is failing and that it is not just symbolism that needs to be changed. There is a deep longing being expressed by the idea of a popularly elected president for a leader who will be above politics, who will be strong, just and admirable and, if I can put it this way, just not a politician.

Others have pointed out the pitfall of that approach. I do not want to go over that ground. But it does seem to me that we need to knock on the head this idea that the system is failing. I passionately believe that it has not and that our way of doing things is totally able, even inspired in its capacity to produce the sort of gifted and capable people who can and do mirror our aspirations, our beliefs and our hopes and take them forward.

Given our high view of the individual, it is only right that we can vote for those who most reflect our views and ambitions and therefore participate in the way our country is taken forward. Any individual in our country can seek political office and pursue a greater influence, at least to the point where popular support is withdrawn. That is because we recognise our own nature. As that great Catholic thinker, Lord Acton, put it 100 years ago, absolute power corrupts absolutely. Our forefathers ensure that no one individual or grouping of individuals could gain or retain too much power. The checks and balances are in the end brilliant in their effectiveness in protecting us from tyranny. We must not forget that the reserve powers that are currently there, exercisable by the Governor-General, are part and parcel of those checks and balances.

Why is it then that so many people appear disillusioned, especially if our elected members are, as I believe to be the case, quite effective mirrors of the diverse range of views and aspirations in our society? Those in public life must accept, perhaps more completely than they have to this point in time, their responsibilities to set high standards of integrity, to explain their objectives and to ensure that people understand their motivation.

But the individual Australians who collectively make up our nation must also accept that a democracy depends upon the active and constructive participation of its citizens. If we continue to tell our children- and, I assume, ourselves as well- that all politicians are rogues, only rogues will stand for public office. If we tell them that politics is dirty and ought not to be touched, we should not be surprised if there is even less participation in and understanding of our democratic way of life than there is now. If we continue to tell ourselves that the system is flawed, people will increasingly clamour for a different system that will perhaps throw up perfect leaders- and I make the observation that the next perfect leader we discover will, of course, be the first.

As one who sees it as his role to defend our constitutional arrangements, I believe that this Convention must settle on an alternative model for our head of state, one that can be put before the Australian people. The onus is on those who advocate change at this Convention to find a model that does not undermine those all-important checks and balances and then to participate in a wide, deep, honest and educative public debate that is so obviously needed in this country that we all love so much.

The Constitution belongs not just to the politicians or even to the people of this Convention- that, I imagine, is obvious- but to the people of this and future generations. Ultimately, if they want change it is their absolute right- one we would all fight for- to pursue it. However, the National Party does not believe that a strong enough case for change has been made. Those who advocate change have an enormous responsibility to answer the hard questions that have been raised and to keep in mind that they cannot and should not attempt to gloss over those difficulties.

I say that, too, in the context of their needing to recognise that the commentators in this country, unlike the politicians who do represent the diversity of opinions on this matter in the Australian community, are almost universally on your side. They are almost universally of the view that we ought to become a republic. They have a great responsibility and so do you. The Australia people must be taken into your confidence in this matter in a wide-ranging and educative debate.

Finally, our commitment- and I speak as the Deputy Leader of the National Party- to the existing Constitution remains solid and intact; let no-one short change the Australian people with something so important as constitutional change.

Mr MYERS- Mr Chairman, I stand before you today as a young Australian, an Australian who has never faced the terror of war, who was not alive to enjoy the swinging 60s or knows what he was doing on 11 November 1975. Similarly, I have never met the Queen. I do not subscribe to royal gossip and I do not know enough Britishers or have sufficient overseas ancestral links to have heartfelt emotions on the influence these factors have on the republic debate. I am, however, a proud Australian, a privileged Australian, who has enjoyed the full benefits of our democracy, but I must state this privilege has nothing to do with money; I am not a financially wealthy person. This privilege has everything to do with the fact that Australia is a free and prosperous nation that encourages debate and fosters innovation and thought.

I represent the young people of Australia who are not bound up in the emotive arguments which seem so inherent within this debate. I am not here to advocate or defend any particular position; I am here to ensure that we determine a system of government that will take my generation and future generations of Australians into a bright and prosperous future. I do not claim to have a mandate to advocate any of the proposed republican models or to defend our existing constitutional arrangements. I do, however, have a responsibility, idealistic as it might seem, to work with you all in an attempt to develop an outcome that will be of clear benefit to our country.

After one week in this place, if there is just one thing we all agree upon it is that achieving this goal will be no easy task. From a personal perspective, I am proud to declare my comfort with our existing constitutional arrangements. I do not think they or any part of our Constitution are daggy. On the same note, however, I do not consider them to be trendy.

To view any part of our Constitution in such a manner at a forum like this would serve only to suggest that the real point of this debate has been missed. We are not, after all, here to turn our Constitution into a colourful and glossy pictorial that will be a nationwide best-seller. That being said, however, I am still open to the arguments for change. As a young Australian, I do not have any sentimental attachment to our Constitution, nor do I have any personal love for Her Majesty the Queen or her heirs. If there is a model for a republic that will improve and uphold democracy and that will not make any Australian worse off, I see no reason why it should not be embraced wholeheartedly.

In making this claim, it is important to acknowledge the fact that, more than anything, Australians value the stability of their democracy. Whilst we may not like all of the rights, responsibilities and people that democracy imposes upon us, there is absolutely no overwhelming sense that there should be change for the mere sake of change.

The challenge for us, therefore, is to examine closely the merits of the proposals presented and any benefits they offer over and above our existing arrangements. We must ensure that at the end of the day any recommendation for change is going to provide a very clear opportunity to improve in some way, regardless of how seemingly insignificant, our system of government. If we do not consider change, on this basis alone, this Convention will unfortunately be remembered as an exercise in futility.

From my perspective, there are three main issues relating to the various proposed methods of appointment for a head of state which need further clarification and consideration before I can support a particular model and be convinced that Australia should become a republic. These issues relate primarily to codification, the method of dismissal and the way in which politics is to be kept out of the appointment process. If not dealt with judiciously these issues will have the ability to upset the most important and valued aspects of our existing system. Of all the models we have discussed, I fear that the concept of direct election will most disrupt our system of government. Whereas I recognise the public support expressed for this method of appointment, I query whether there is the same level of support for the radical changes it will require.

Direct election would not make the office of head of state more accessible to ordinary Australians, nor would it make Australians any more respectful of the position in itself. Direct election would, however, make our head of state a politician, a populist who would ultimately decide to act in whatever way opinion polls declare that we have decided he or she should act. History has proven that politicians in all of their various guises, who exist at the mercy of public opinion, do not always act in the long-term public benefit.

Direct election will, however, provide a mechanism to facilitate the election of an exclusive group of Australians who are wealthy enough and/or politically connected enough to mount a national campaign or gain political preselection. There are a great many Australians worthy and capable of serving as head of state who fit into neither of these categories. There are a great many Australians who would defer from having to submit themselves, their professionalism and their personal lives to the political process. An American political satirist, P. J. O'Rourke, refers to the American presidential ballot in his book Parliament of whores and observes that:

In our brief national history we have shot four of our presidents, worried five of them to death and impeached and hounded another out of office. When all else fails, we hold an election to assassinate their character.

The questions we must confront are whether we want this to happen in Australia and whether direct election will provide a real benefit to the Australian public. If the answer is yes, then we must accept that a head of state will be more than just a ceremonial and political figurehead. We must accept that a head of state will have a greater mandate than our Prime Minister. As such, there will need to be many significant changes to our political system at every level.

We will need also to codify to the nth degree the powers and duties of our head of state, even though codification, in any form- binding or non-binding, legislated or constitutionally entrenched- can only serve to limit the flexibility that exists within our present system.

It is interesting to note that throughout history mankind has sought to record and detail the most precise rules and practices for human behaviour. Curiously, this practice has led to the increasingly rapid development of the legal profession and the overwhelming scrutiny of even the most inconsequential incidents. I sometimes wonder whether the Almighty God would have spoken 10 commandments in such a straightforward fashion had he known that in the late 20th century there would have been so many lawyers to litigiously reinterpret his intended meanings of sin.

The procedure to dismiss the head of state who, for whatever reason, is not worthy or capable of office is also something that must be given sufficient consideration before a particular republican model can be embraced. Thus far, no model that has been put up at this Convention has adequately addressed this issue. Whilst I remain to be convinced that the removal of a directly elected president could be dealt with fairly and effectively, I might also add that the Australian Republican Movement has yet to convince me that they have adequately determined a fair and workable procedure for dismissal.

Consideration of this issue is as important as consideration of the process for appointment essentially because of the fact that constitutional crises do not, by mere definition, lend themselves to lengthy, inflexible decision-making processes. We need a system that works, more desperately than one which is popular. I would not be the first person to suggest that a boring system may well work more effectively and fairly than one which has superficial public appeal. Whereas I am totally opposed to a method of dismissal which is too inflexible and unobtainable- such is the requirement to obtain a two-thirds majority of a joint sitting of the federal parliament- I am also opposed to a method of dismissal which is trite. I fear that dismissal by a simple majority of parliament may well fall into this category.

To date, the McGarvie model would appear to be the only republican model proposed which has a considered and logical process for dismissal. Such a model, although not without its defects, would appear to provide the best hope that any change could continue to enshrine independence and uphold the faith of all Australians in the fairness and integrity of our political system.

As I said, the real measure of the worth of any proposal is the benefit it provides to each and every Australian. This measure cannot be adjudged by how much or how quickly we can deliver change to the electorate. Let us not forget the fact that we are not here to serve our own interests, that we are not here to win support for a particular model nor are we here to make the year 2000 or 2001 any more significant. Whether we like it or not, we are here to represent every single monarch and every single republican as well as the apathetic, the disinterested and those who lie somewhere in between.

As delegates, we have a responsibility to provide the people of Australia with guidance on our constitutional future. In a speech last week it was argued that anything unnecessary is pernicious and change for the sake of change is destructive. Let us never forget the fact that we are merely custodians for the future.

Mr GIFFORD- Mr Chairman, during the last speaker's speech the number of people here varied between 22 and 27. That is a shocking affair when you are looking at the seriousness of what is being discussed. I would ask that the meeting be adjourned until tomorrow morning.

CHAIRMAN- I do not accept that suggestion because we agreed this morning that there was no dissent. We are therefore proceeding in accordance with the proceedings. As those who are watching would know, at the moment there are four or five working groups plus a Resolutions Group meeting to consider tomorrow's debate. Unless we proceed on this basis, you are going to deny a large number of people any opportunity of speaking at all. In those circumstances, it was determined by the full Convention that an opportunity would be provided for speakers to speak this afternoon as we did on a number of afternoons last week.

Ms MARY KELLY- I am particularly grateful for that ruling, Mr Chairman.

I begin by acknowledging the Ngunnawal people, the traditional owners of this land. I pay my respects to them.

The Australian Women's Party, of which I am a foundation member, is unashamedly pro-republic for many of the reasons that have been outlined by other delegates. I am conscious that this is the space we have been allowed in which to put things on the public and historic record that particularly do not find a place anywhere else- and I will talk a little about the party's position in the lead-up to this Convention and how it is connected so far.

We are a nationally registered political party, established in 1995 in Brisbane. We established the party in particular to pursue equal representation of men and women in our parliaments not just as a target but as a guarantee in the Constitution. We also developed a progressive political platform on many issues, and we have run in several elections.

When the Constitutional Convention opportunity came along, we were thrilled to run candidates in two states under the banner of `Women for a just republic'. I was elected tenth out of 13 candidates in my state of Queensland, a result which was unexpected by many but one which I think shows that Queenslanders are not afraid of progressive ideas. I understand that I have no greater mandate than anyone else here, but when it is won against the odds it does feel special.

Our platform for election to the Convention was: to seek a change to the Constitution so that both our houses of parliaments have equal numbers of men and women; to question and put forward the idea that Australia did not need a separate head of state at all; to support encoding people's rights in the Constitution, including the right to equality; and to support recognition of indigenous Australians by way of a changed preamble, designated seats or in any Bill of Rights. These four issues are connected together by a view of the world which is pro social justice, which wants to reform and improve our representative government but also wants to see the principle of responsible government retain its primacy. I want to talk a little about those ideas and link them to the Convention happenings to date.

Australians could be forgiven for thinking that our government consisted only of the head of state, such has been the focus on that position to the exclusion of discussion on the two houses of parliament. This iconising of the head of state is causing us all to invest huge energy and heightened expectations in a single position.

The Women's Party took a broader view and recognised that Australians' alienation from their elected representatives, which is the driving force behind their desire to choose the head of state themselves, had to be confronted. We have proposed, and will continue to propose at every opportunity, that people's connectedness with the political process could be improved by improving the representativeness of the two houses, particularly on the parameter of sex or gender. I want to spend some time on this issue and to explain it and justify it.

Our proposal was for both houses to have equal numbers of men and women to reflect the community representation. Nearly 100 years of the right to vote, for non-indigenous women at least, has not delivered equal representation. The barriers to equal representation include the preselection procedures of the major parties, the family unfriendliness of political life, and so on. Barriers do not include a lack of meritorious or interested women.

The imbalance in representation has produced inappropriate decision making. Over the years issues to do with equal rights and social services, for example, would have been handled very differently, I think, if there had been more women in parliament. The Constitution could and should be amended to mandate the 50-50 outcome for the members from each state. Operational details can be encoded in the Electoral Act.

In the House of Representatives, rather than double the number of politicians- which, I hasten to add, we do not support- the existing electorates can be paired to generate double sized electorates within which each voter casts two ballots, one for a male representative and one for a female representative. The two successful members share the servicing of the electorate, either in cooperation or competition. In the Senate, there would be separate ballot papers to elect the female and male halves of the Senate cohort. In both cases provisions can be made for odd numbers of seats and for vacancies.

Arguments against this idea of guaranteeing equal representation for women usually involve protestations about merit and precedent. Leaving aside the question of whether preselection for a seat is a merit based process, it is insulting to suggest that involving more women will somehow lower standards. In fact, if you believe as I do that brains and talent are spread evenly between the sexes then, by definition, our two houses of parliament, by the omission of the right share of the best women, must include large numbers of less than the best men.

Guaranteeing seats by gender does not imply that all sorts of other physical or social characteristics- such as tallness or income, as has been suggested to me- should also be considered. Maleness or femaleness correlates strongly with key life experiences such as what sort of a job a person will have, what they will be paid, what crimes they might commit or be a victim of, how much unpaid work they will perform, their likely degree of family responsibility, how likely they are to experience discrimination, and so on. The only other characteristic which more profoundly affects a person's life chances is whether they are indigenous or not- and that is why we support tagged seats for indigenous Australians.

Other countries have taken similar measures. In India, the world's largest democracy, all local government structures must have 35 per cent women, and their federal structure is under pressure to do the same. Scottish women are organising to push for gender balance in their new devolved parliament, scheduled for 1999.

Closer to my own experience, I have been a member of four organisations which have changed their rules to ensure gender balance in decision-making structures, including a national professional association, a union and an international body. I am happy to report that the sky did not fall in, as predicted; that there were no problems finding women of merit; and that better quality decisions were made. Gender balance soon felt normal and became a non-controversial issue. What was most noticeable was the change in the behaviour of the preselectors and the gatekeepers in each of those organisations. Their previous inability- chronic inability- to find or sponsor women of merit changed overnight. Potential loss of power is very motivating, I think.

Because we would not tolerate a parliament that was disproportionately dominated by people from cities, say, or by people from one state, the Constitution has rules to ensure a fair spread by location. We argue that disproportionate representation by men is equally intolerable, and our Constitution needs to guarantee a fair spread by gender.

On the head of state question, we began with the position that no individual should have superior powers to the houses of parliament, that in an operational sense, at least, a separate head of state was not necessary and that satisfactory checks and balances could be created by building on the existing ones with a Bill of Rights, and so on. We took the view that if a head of state was to exist, then we would not baulk at popular election, provided the powers were limited and clearly defined. That is how I ended up being a supporter of codification and popular election. This is based not just on the fact that people want it but on the reasons why people want it- that is, their desire to re-engage with the government structures that they feel alienated from. So I have taken a view, which I outlined in some detail on day 4, that popular election is now a necessary prerequisite to success in any republic referendum, and that it is possible to do it safely.

As someone who worked in detail on the revised direct election model, I strongly commend it to your attention; I understand that it will be in the pigeon holes imminently. It makes popular election possible and safe by eliminating the possibility of a rival power base, by minimising the chances of party hacks getting up, by giving a significant but not final role to parliament in the election process, but giving the parliament also a final role in the dismissal process, and so on.

This revision of the direct election model is elegant and workable. I will be very interested to hear what arguments are put up against it, now that every single concern expressed has been accommodated.

On the question of explicit rights in the Constitution, we support a Bill of Rights which includes the right to equality, but this must include the concept of taking special measures to overcome disadvantage. Treating people the same does not result in treating people equally. The context and history of their disadvantage and circumstances must be taken into account.

I accept this meeting's decision not to expand the agenda to discuss other issues, although it does disappoint me. When we get to talk about future processes, I will be pressing that we do something very concrete about another convention-like discussion and public discussion. In other organisations I have worked in, if something inconvenient came along, you referred it- and we used to call it `death by referral'. I hope that in our future processes, whatever we come to, the broader issues do find a place and it is not just death by referral.

Finally, I would say that at the conventions of 100 years ago many people have noted no women attended; in fact, most women at the time did not have the vote. It is worth noting that 12 years later all white women in Australia did have the vote, which I think illustrates the possibilities of radical and quick change in those open moments in our history. Nevertheless, one woman stood but was not elected; and women expressed their views from outside the main process and by concerted lobbying, and with some success.

At this Convention we have overcome, to some extent, the barrier of attendance and the barrier of participation- and I want to put on record my appreciation for the generous way in which people have embraced gender balance in participation. For those for whom it has been a bit of a constant irritation, can I say that it has been a thrill to many women outside of this process that the Convention has done that. I hope that in any future processes serious consideration is given to overdue reform, such as equal representation, to give women a permanent say at last in the running of Australia.

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Last updated: 21 October 2000