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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
Tuesday, 10 February 1998
Page 14

CHAIRMAN- Having in mind that we only need 25 per cent to refer it, I can take one other speaker for it.

 

Mr RUXTON- I just want to take up the matter that Neville Wran spoke about of the Flags Act being amended, passed through the House of Representatives and now stalled in the Senate, and that a referendum of the people of Australia must take place before the flag is changed. Surely to goodness it is no good having an act of parliament. Some government could get in with a vast majority in both houses and repeal that act. That is not safe for the Australian flag. It might be a start, but surely an act can be repealed very easily by the parliament.

What we are saying is that it need not be the current Australian flag, but having the Australian flag in the Constitution will safeguard whatever the flag is in the future. I cannot understand why there is such opposition to this one. There is some ulterior motive. I believe that that act before the parliament is not the utmost of safeguards for the flag because the act can be repealed.

Councillor TULLY- On a point of order, I have listened intently to this debate. I know that a working group was established to consider this issue, but it raises a fundamental question in terms of the competence of this Convention as to whether or not a peripheral issue, which I cannot hear in any of the debate, is within the competence of this Convention. I do not believe that it is. We are here to discuss a republic or the status quo, and I would ask for a formal ruling because I submit that this is totally outside our terms of reference.

CHAIRMAN- I ruled, as I did the other day, that the amendment, which has now been withdrawn by Major General James, was out of order. I have also indicated that when we reach that point I intended to rule that that amendment to be proposed by Malcolm Turnbull was also to be ruled out of order. This amendment, however, as I indicated the other day, as it is to the preamble to the Constitution, is not for me to rule out of order. However, we need to have in mind that it is to be referred to the Resolutions Group. It is not one which we are either passing or defeating at this stage.

Ms HOLMES a COURT- I would just echo Mr Tully's point. I think that the information that we have, such as the gallup polls and the number of hits to the web site of Ausflag, indicate there is a big interest in this issue amongst the Australian people. For us to do this at this moment would be extremely inflammatory, particularly as we were told we were not coming here to do it.

Major General W. B. JAMES- I move:

That the motion be now put.

Motion carried.

CHAIRMAN- The question is that the report of Working Group K be referred to the Resolutions Group.

Motion carried.

Mr WRAN- Mr Chairman, does the amendment go with it?

CHAIRMAN- No, the amendment does not go with it.

Mr WRAN- You did not put it.

CHAIRMAN- I ruled the two amendments out of order. The only amendment we had was the Turnbull amendment, and that is out of order because it is not an amendment to the preamble. As the result of an amendment to the preamble, it calls for business which is unrelated.

Mr WRAN- I totally agree. I think the whole thing is out of order.

CHAIRMAN- Thank you. Working Group K is referred to the Resolutions Group.

Sir DAVID SMITH- Mr Chairman, just a point of clarification on the way this working group system is going to work. Yesterday when we had Mr Johnston's original motion seconded by me and Major General James's motion seconded by Mr Bradley, Professor Winterton- and I think there was some other support on that side- stood up and pointed out that the proposals would not work. It was on that basis, and I believe it was at your suggestion, that this matter was referred to a working group. I simply point out that not one single constitutional lawyer attended that working group meeting. It is not going to be very helpful to this Convention if the lawyers amongst us stand up at the back of the chamber and tell the amateurs that what we are doing will not work, but then refuse to come and help us make it work.

CHAIRMAN- Sir David, you are in exactly the same position as every other convenor or chair of a working group. Your working group reports, amended or unamended, are referred to the Resolutions Group. The Resolutions Group will consider those reports and will be required to report back on each of them in due course. Your working group, along with each of the other groups, will be considered by the Resolutions Group.

WORKING GROUP L

Dual citizenship

Mr ANDREWS- I move:

Should Australia become a republic, the Working Group recommends that the following qualifications and disqualifications apply to the appointment of a Head of State:

(L1)The Head of State must:

(a)be an Australian citizen;

(L2)To be eligible for nomination, Members of State and Federal Parliaments must have resigned not less than 12 months prior to nomination as Head of State.

For the purposes of this resolution, nomination means:

(L3)The Head of State should be subject to the same disqualifications as set out in s44 of the Constitution for Members of the Commonwealth Parliament.

(L4)Any future amendments to s44 should also apply to the Head of State.

With the concurrence of the seconder, I move:

That in L(2), line 2, delete "resigned", insert "cease to hold office".

Other than that, the matters before the delegates are those numbered 1 to 4. That section entitled OTHER ISSUES RAISED BY THE WORKING GROUP are simply comments and are not formally put before the delegates.

CHAIRMAN- Is that motion seconded?

Dr TEAGUE- I second all that has been put to us by Kevin Andrews. I just flag that there are several amendments. I note that amendments 1 and 2 are just a direct deletion of one of the qualifications we put that there be a 12-month period between a member of the parliament leaving the parliament and then being able to be nominated to be the head of state. There was a divided opinion in the working group anyway. I leave it to delegates to indicate by voting for amendments 1 or 2 as they see fit.

Amendment 3, however, I would urge delegates to oppose- that is, that there be an additional qualification of anyone having been a citizen for 15 years and resident for at least 15 years. I believe it is right to allow the people of Australia, through their elected representatives in the parliament, to take that into account if someone who did not meet that qualification was otherwise to be commended. I am opposed to amendment 4- that is, that there be a minimum age of 40. In fact, the whole body of this resolution, as put to us by the working group, is opposed to the Professor Blainey amendment 3 and opposed to the Bruce Ruxton amendment 4. With regard to Senator Natasha Stott Despoja's amendment that the minimum age be 18, of course we agree with that because if nothing was amended that would be the outcome. I urge, with minimum amendment, the resolution to be eventually adopted by delegates.

CHAIRMAN- I call on the first amendment, which is that proposed by Mr Doug Sutherland.

Mr SUTHERLAND- I move:

That the first sentence of L(2) be deleted.

Mr O'FARRELL- I second the amendment.

Mr SUTHERLAND- I have consulted my seconder and we are quite comfortable about excluding the other lines to L(2). In other words, completely excluding L(2), which is what the second amendment seeks to do. That would truncate both those amendments and permit it to go forward. To save time, I do not propose to speak. I think it should be enough to refer it and it will come back finally anyway.

CHAIRMAN- I understand you are proposing to accept the amendment proposed by Professor George Winterton and seconded by Ms Julie Bishop. Is that correct?

Mr SUTHERLAND- Yes.

Ms THOMPSON- As a member of Working Group L, and as the person who argued most vigorously for the proposal which is before you as proposal L(2), I want to just talk you through the reasons that particular proposal was put before the working group. I preface my remarks by saying that I have nothing but the greatest of esteem for my friends in the parliament. As they say, some of my best friends are parliamentarians. However, that is not to say that I do not appreciate the great concerns that a large number of members of the public have expressed about the potential for politicisation of the office of president. We are all concerned about that. We are all concerned that our head of state be someone who is above politics and who is seen to be above politics. Much in the same way that we like our judges to be above politics and seen to be above politics, so should we hope that our head of state is too.

In seeking to have this occur, L(2) merely quarantines members of parliament for a period of 12 months. It does not bar them from ever becoming president, it simply quarantines them for a period of 12 months from the date of the nomination. It then goes on to qualify what nomination means, depending upon which model is agreed upon. All it says is that we will never again have the possibility of public argument and public consternation about a member of parliament in this country being directly appointed or elected as head of state. That is all we are saying. We are not saying that John Howard should not be president one day or that Reg Withers should not be president one day. Or Tony Abbott. Or Kevin Andrews.

Mr RUXTON- Or me?

Ms THOMPSON- Bruce, you do not come within this because, to my knowledge, you are not a member of parliament. But we are not saying that. All we are saying is: let members of parliament have a 12 month cooling-off period, if you like, between being a member of parliament and being available to be head of state. So could people please consider that when they are voting on whether or not to support L(2).

CHAIRMAN- Councillor Tully, are you for or against the amendment?

Councillor TULLY- I am in favour of the amendment. If we are going to live in a democratic society where individuals have equal rights- other remarks will apply to other amendments coming up- we should not put barriers or qualifications on any adult who otherwise qualifies to nominate for any other position. It is inappropriate that we are putting these barriers. I understand the reasons why we are trying to keep people from moving out of the political process into the presidential process. However, if we are going to put these barriers on, we are really taking away the rights of individuals. I cannot support a proposal that would do that.

Mr ANDREW- I am also against the amendment.

CHAIRMAN- Is there anybody for the amendment?

Mr ANDREW- I want to declare first that I do not have a vested interest in this amendment, lest anyone should wonder why I am rising to speak. But I am concerned that having any sort of political identity should be seen as a handicap. I think it was Spike Milligan who said, `One day we will find ourselves in a situation in which the "don't knows" win the ballot. Then we really will be in trouble.' I hope we recognise that having some sort of political commitment should not be seen as a handicap to being an effective Australian but quite the contrary. I say that, recognising that many people's political commitment will be exactly the opposite of mine. I commend those who believe in something.

CHAIRMAN- Having had two speakers against the amendment, I put the amendment. The amendment is the one moved by Mr Doug Sutherland and Mr Edward O'Farrell. It is the amendment that was on our Notice Paper in the names of Professor George Winterton and Ms Julie Bishop that both paragraphs be deleted. Those in favour of the amendment please raise your hand; those against? I declare the amendment referred. It is a matter of referring it, not passing it, as you will recall.

Professor BLAINEY- I move:

That, if Australia becomes a republic, the head of state must be both:

Many republicans have long been critical of the facts that they do not like about the Queen, but they are very slow in specifying what they would like in the president if a president is to replace her. The republicans object to the Queen though she exercises no political power in this country. They object to one who has been to Australia many times in the last four decades and has seen more of this land than 95 per cent of the republican delegates who oppose her.

Brigadier GARLAND- And she's a woman.

Professor BLAINEY- And she's a woman. I assume that the Queen knows much about the Australian Constitution. It is a fact that she has met and talked to every Australian leader since the distinguished Labor leader Ben Chifley. So the Queen must go. Who will replace her? The timid, unpatriotic proposal before us is that the president has only to be an Australian citizen on the electoral roll. This means that the Queen could be replaced by someone who has lived only two years in Australia, who knows little about our system of government and who may publicly retain some allegiance to the nation so recently left behind.

In my view, we are being sold an irresponsible proposition. The new president, if we become a republic, will carry not only the symbolic power of the Queen but the powers of the present Governor-General. We are told that this new president need not necessarily possess knowledge, experience or familiarity with this land, its peoples and its Constitution. I find this incredible. If we are to have a president, that president needs to be more than just a name on the electoral roll. Mr George Mye, the distinguished delegate from the Torres Strait Islands, seconds this amendment.

CHAIRMAN- Do you second that amendment, Mr Mye?

Mr MYE- Yes.

CHAIRMAN- Do you wish to speak to it?

Mr MYE- No.

CHAIRMAN- Is there a speaker against the amendment?

Professor THOMAS- I would like to speak against this motion because it is mean spirited. It is unnecessary. We have already talked about Australian citizens and I think we all should be equal. There should not be one citizen above another. There is no need to build up barriers because, if a person is not worthy of the job- there is only one job anyway- the person will not be elected, nominated or selected. At this stage, I think we should be inclusive rather than building up barriers. If we say 15 years, then why not 30 years? Why not 40 years? A person who is a citizen is a citizen, no more, no less.

Sir DAVID SMITH- I support Professor Blainey and Mr Mye in this, Mr Chairman. When my parents came to this country from a non-English speaking background nearly 70 years ago, they were required to renounce former allegiances before taking Australian citizenship, and they did that gladly. Nowadays, new Australian citizens are not required to renounce their citizenship. We could have a head of state of this country who owed allegiance to a foreign country. If the head of state came from certain countries and made a state visit, he could find himself clapped into gaol for not having done national service.

While we are on the subject of all citizens being equal, I remind the last speaker that when a foreign resident comes to this country and takes out Australian citizenship they are entitled to retain their former citizenship. When an Australian takes foreign citizenship, this country strips him or her of their Australian citizenship.

CHAIRMAN- Is there a speaker against the motion?

Councillor TULLY- Briefly, I fail to follow the logic of that argument. What we are saying is that, after 15 years, if they became president and went to a foreign country, they could be thrown in gaol. That is just totally and absolutely illogical. I do not see that it relates to the argument at all.

Mr SUTHERLAND- I think he is talking on the next amendment, John.

Councillor TULLY- It is Paul, and if he is talking on the next amendment, then why wasn't he talking on the first one? We are talking about an amendment which requires that a person be an Australian citizen for 15 years before they can hold the office of head of state. As far as I am concerned, I reiterate what I said before. It is totally and absolutely inappropriate to have two classes of Australian citizens. That is what this amendment intends to achieve.

Mr HOURN- I rise to support this motion, although I must say that I have been against the other motions about age barriers and political affiliation barriers. I think they are undemocratic. But, in this particular case, somebody who is to hold the highest office in the land needs some sort of form. You cannot get a security clearance without that sort of background. You need some sort of residential status. I suppose 15 years might be a bit excessive in that sense, but, in terms of the highest office in the land, I think 15 years is reasonable. You cannot become the President of the United States of America unless you have been born in that country. I think this is a minimal concession. I strongly support the motion.

Ms HOLMES a COURT- I would like to support Professor Thomas. I think that to say that roughly 30 per cent of the population would be ineligible for quite a length of time is an outrageous suggestion at a time when we are trying to bring Australia together. I would like to remind Professor Blainey that at this Convention there are 152 people. I would not suggest that all of us were ignorant of our Constitution up until about six months ago, but a great number of us have learnt a huge amount about it in less than two years. I think we can satisfy ourselves that whoever is able to be selected for this position would have the intelligence and the brain power to take a pretty fast-

Ms CHRISTINE FERGUSON- Big assumption.

Ms HOLMES a COURT- It may be an assumption, but I think that every model we are putting up has that assumption in it and that someone would be able to get a grip on our Constitution.

Dame LEONIE KRAMER- I think the notion that this has something to do with discrimination is quite beside the point. It is totally irrelevant to what Professor Blainey was saying. The fact of the matter is, first of all, that the person does have to know something about Australia to take the highest post in the land, and more than just a little. What Professor Blainey said, I think, made that perfectly clear and was absolutely right. Furthermore, we have to think about someone who is a special kind of person. It is not true to say that anybody in Australia could be head of state. I think the republicans have been very misleading in their rather general aspiration that everyone born in Australia could be head of state. It simply is not true and we all know it is not true. It is hypocritical to pretend that it is.

CHAIRMAN- Mr Vizard, are you against?

Mr VIZARD- Mr Chairman, I oppose this. I oppose it because 15 years is an arbitrary figure. How many years do you have to live in Australia to qualify to be an Australian? There is an implicit suggestion that, almost by the attrition of time, almost like doing penance, at the expiration of that period one has stayed long enough to qualify to be an Australian. Some people in 15 years do not pick up any language. Some people in 15 years do not pick up any values. Some people in 15 years- in 50 years- do not aspire to anything. But other people, in the space of minutes, stand for something- something with integrity, something of value, something that means something- and apply themselves to this country.

What other tests do you seek to impose? Is 15 years supposed to qualify to teach you English, to give you hobbies that are Australian, to give you a football team? Is it supposed to give you a love of your city? Why 15 years? Why not 40 years? Why not 80 years? I suggest that people who come here, choose to live here and treat this country as their home, by those very facts alone, qualify to stand for the position of president.

Mr MUIR- I move:

That the motion be put.

Motion carried.

CHAIRMAN- The question is that the amendment proposed by Professor Blainey be agreed to.

Amendment lost but referred to the Resolutions Group.

CHAIRMAN- I turn now to amendment 4 from Mr Bruce Ruxton.

Mr RUXTON- I move the amendment circulated in my name.

Dr SHEIL- I second the amendment.

Mr RUXTON- My amendment is in two parts. Firstly, the head of state is not to hold dual citizenship. I object to the head of state of this country owing half his allegiance to another country. I do not believe it is on.

Mr CLEARY- What about the Queen?

Mr RUXTON- You are on it again. `The Queen of Australia', I would suggest, makes her an Australian.

Mr VIZARD- An own goal, Bruce! You have done it again.

Councillor TULLY- She is a Pom.

Mr RUXTON- Let us take this scenario: Bill Hayden down here has dual nationality- he is Greek. He goes to Greece on an official visit on behalf of Australia and, when he gets there, they grab him and put him into the army. That is what it is all about.

I think the motion is logical, even though others may not. I am quite sure that outside this chamber, out there in the big world, dual nationality would not suit Australians for their leading citizen. I believe that the minimum age should be 40. I picked out an arbitrary figure. I think in America it might be 35. For example, if Steve Vizard were 34, he would have to wait only one more year. However, I do think that being 18 and being an Australian for maybe two years is not good enough. I think there should be some qualification, otherwise we are not treating this top job seriously. I think we have to take a serious note to the new president of Australia, if there is going to be one. If you do not do that, I think people are going to reject it out there anyway.

CHAIRMAN- I declare the first part out of order because the first part in respect of dual citizenship is already covered by L3, which says:

The Head of State should be subject to the same disqualifications as set out in s44 of the Constitution . . . 

That already ensures that no member of the federal parliament can hold dual citizenship, and it has been so held by the High Court. Therefore, that first part of your amendment is already covered. The second part- that is, that the minimum age of a head of state be 40 years- is valid.

Mr RUXTON- There is another part there I have forgotten. We have not discussed whether the new president will be commander-in-chief of the armed forces.

CHAIRMAN- Do you wish to speak on that?

Mr RUXTON- I believe that the president should have the same power as the Governor-General, that he should be the commander-in-chief of the armed forces. I would certainly not like to see that particular position of commander-in-chief go to the Prime Minister of Australia.

CHAIRMAN- Thank you, Mr Ruxton. As I have declared, that part that is labelled L8 is redundant because it is already covered by L3 in the working group report. Section 44 already precludes members of the parliament from being dual citizens.

Senator STOTT DESPOJA- I too believe that our head of state should not have an allegiance to another country. That is why I am a republican, but I realise that has been ruled out of order. We wish to address the second part of Mr Ruxton's amendment, which relates to a minimum age for the head of state. Bruce, don't blow me kisses. It is bad enough that you are discriminating on the basis of age, Mr Ruxton, let alone any other `isms'.

I have moved an amendment along with Senator Kate Lundy. The intent and the impact of that amendment is clear. I should have stated not `18 years' but `voting age' in case the voting age should change. I think there are enough barriers to young people's entry and promotion in decision-making bodies in this country. Let us not seek to entrench those barriers. I think it is difficult enough. I wonder if this amendment would be moved if we were discussing the monarch, because I do not believe that the monarch has to be 40 years of age before they have to qualify.

With the greatest of respect, I really do not believe that wisdom or integrity or intelligence is the preserve of those over 40 in this community or indeed in this chamber. You only have to look at the delegates- specifically under the age of 25, I would suggest- at this gathering who have shown that certainly those values and qualities are not the preserve of those over 40. Indeed, I think many of them here would make great presidents, so I seek to move to amend the amendment, if indeed the amendment of Mr Ruxton's is successful.

CHAIRMAN- I intend to declare your amendment out of order because it is already covered. If you have a look at L1, it requires under (b) that you, `be eligible to vote in an election for the House of Representatives or Senate at the time of nomination,' which means you must be 18 years of age. I intend, therefore, to rule your amendment to Mr Ruxton's amendment out of order because it is already covered. You can speak quite properly against it being 40 years, as you did.

Father JOHN FLEMING- Mr Chairman, I do not see that it is demeaning. You choose an age; it could be 18 years of age. You could argue that it is an arbitrary age which we now have for adulthood, which brings with it certain kinds of privileges, such as voting and so on. I suppose that it is an arbitrary age. When I got to the age of voting, it happened to be 21. So the question of age qualification is not one that is remote to a sensible society. We are not talking about restricting people being part of the decision making process. I believe that Senator Natasha Stott Despoja really cast the net too broadly. It is really looking at one particular office. Although it was a nice debating point to be able to say, `Of course the monarch could be strictly a squirming baby in the crib if all the things fell right and the terrorists bombed out the Queen' or whatever, the fact is that the real power is exercised in this Constitution by the Governor-General, not the Queen.

We ought to compare like with like. I do not think it is unreasonable to expect that a head of state, such as the president of the republic unambiguously would be, would be a person who would be well looked up to in the community and had a certain seniority of age. I do not see any difficulty with the idea that we could accept the notion of elders, at least at some point in our system. I would clearly reject it for the election of members of parliament, such as senators.

When we are talking about the president and we are talking about it for a limited time, it is reasonable to expect that the full dignity of the office is something we should have regard to. Whether it should be 40 or 35 I am not going to quibble about. I think it is not unreasonable in principle to accept the idea that there is a hurdle below which we should not go.

CHAIRMAN- I call on Archbishop Hollingworth to see whether he is for or against the amendment.

The Most Reverend PETER HOLLINGWORTH- I am against the amendment.

CHAIRMAN- I therefore call Archbishop Hollingworth.

The Most Reverend PETER HOLLINGWORTH- As in relation to Professor Blainey's previous motion, I accepted the argument but I would have rejected the amendment. The same would apply in this instance. There is no question that the matters of qualification, experience, wisdom, insight and so forth are very important qualities. But it seems to me to be a bad principle at law to try to entrench or prescribe in that way. For the same reason, I would oppose a maximum age, as that, too, is ageist. Generally speaking, we are yet to determine what the actual process of appointment and election to the Australian presidency might be, should that come about. One way or another, I think you could be reasonably certain that whoever made the final decision was likely to make a wise one. In those instances, I think it is proper not to prescribe but to rely upon the good sense of those who bear authority.

CHAIRMAN- Have I a speaker in favour of the amendment?

Mr BARTLETT- I am in favour. I want to raise a point of order. In light of Archbishop Hollingworth's comments, it is a very good idea. In light of Mr Bruce Ruxton's birthday, perhaps we could make the maximum age 72. I am a bit confused and I want a point of clarification. You have knocked out the first point of Bruce's amendment, point 8, regarding the head of state.

CHAIRMAN- That is correct. It is already covered.

Mr BARTLETT- I have a question in relation to (L3). As I understand it, you said that section 44 covers that point. Is that right?

CHAIRMAN- That is correct.

Mr BARTLETT- Does (L6) become redundant?

CHAIRMAN- The motion involves only (L1) to (L4), as Mr Andrew indicated. The other parts are for the information of delegates only. When Mr Andrew moved the motion, he moved (L1), (L2), (L3) and (L4). The other parts are for the information of the delegates.

Mr BARTLETT- So (L6) does not become part of the referral?

CHAIRMAN- No.

Mr BARTLETT- Thank you.

CHAIRMAN- Is there a speaker in favour of the amendment? Ms Bunnell, are you in favour of the amendment?

Ms BUNNELL- Yes, in a way. By way of clarification, in the Clem Jones model we had the minimum age as 35 years. We took that out after much consultation with the people of Queensland. They were very resistant to a minimum age, which I think really supports the senator's earlier point. So it is just a point of information. Many of the community were against a minimum age.

Ms HANDSHIN- I speak against the amendment. I simply ask: why 40 years?- as so many people have been asking. Why has 40 years suddenly become the magical age at which one acquires all the necessary skills and knowledge to be eligible to be the head of state?

Ms HANDSHIN- With all due respect, Mr Ruxton, I think there is a bit of snake oil here.

Mr RUXTON- I have got the snake oil.

Ms HANDSHIN- You have voted against and spoken against gender equity issues on the basis of merit, yet you contradict your merit principle by proposing this amendment limiting eligibility on the basis of age. That seems to be rather skewed logic to me. Competence does not have an age limit. After all, some of the greatest leaders in the world have been under the age of 40.

CHAIRMAN- Are you for or against, Mr Johnston?

Mr JOHNSTON- I am for Mr Ruxton's motion. I remind the Convention of a long quoted saying that life actually begins at 40. More than that, I think it would be ludicrous- and certainly I would never put myself up for president or whatever else we might end up calling it- at 18 or a lesser age. What experience have you had in the world of work or in all sorts of fields of other endeavour? How, then, if you have not had this experience generally in life or, perhaps, in education, can you ever hope to try to embody the feelings, the needs, of the people you would be trying to represent? I think you need some time- probably the first 40 years of your life- to become fully acquainted with what it means to be an Australian, with the difficulties of what it is to be an Australian. Certainly, I think 40 years is a very reasonable age.

Senator PAYNE- I move:

That the motion be put.

Motion carried.

CHAIRMAN- We will deal with this motion par by par, because there are two points under Mr Ruxton's motion. There is the amendment to resolution 3(a), and paragraph (ix), about which most of the discussion has taken place- that is, that the minimum age of a head of state be 40 years. The question is that that part be referred to the Resolutions Group. Those in favour please raise their hand; those against?I declare that it will not be referred.

The second part of the resolution starts `under Resolution 3(c), the matter of Commander-in-Chief' et cetera. Those in favour of referring that part to the Resolutions Group please raise their hand; those against? I declare that part of the amendment referred.

Having already covered amendment No. 5, we are down to amendment No. 6 and Mr David Muir.

Mr MUIR- I move:

Paragraph (L7) Delete the words, substitute:

Ms BUNNELL- I second the motion.

Mr MUIR- Mr Chairman, in respect of the indication by Kevin Andrews earlier in this debate, the effect of this amendment is to add an (L5) to the Working Group L report, because you will note that Mr Andrews has clarified this by saying that he has (L1), (L2), (L3) and (L4), and that the balance does not form part of the resolution from the group. It is obviously clear, though, that the group considered these other issues.

Bearing in mind the comment that I referred to the chamber before by Bob Ellicott and David Smith about the concern with respect to party politics in this country and bearing in mind the great deal of public comment that we had in Queensland in relation to the running of the Clem Jones team, it is very clear that Australians do not want a party politician as their head of state. They want a neutral umpire and they need somebody in that role who will forswear any party allegiance.

To those who say that we are making or taking away rights of those involved in party politics, I would respond by saying two things. One is that in relation to candidates for head of state you have a choice- hopefully, we will have the chance one of these days to elect a head of state. Should you want to nominate for that position, you will have a choice as to whether you do so and, if you choose to do so, then to relinquish your party allegiances. The second point I would like to make in relation to that is that there is presently a convention which is abided by our present Governor-General. The convention is that political ties are disavowed on the Governor-General's taking that position. So there are two very persuasive reasons why this should be supported.

CHAIRMAN- Technically, in its present form, it cannot be accepted because (L7) was not moved, but because it does add an additional requirement for a head of state, I think with some modification of the words it could be accepted. What it would mean is that, instead of your introduction, you would be suggesting that a new (L5) be added which would read in the form of the words that Mr Muir has proposed.

Professor WINTERTON- I support this motion. Many republican constitutions in the world contain this principle but, with respect, it needs dramatic rewording because it implies that, in order to take office, the president would have to join a party in order to resign from it. What I suggest it ought to say- although it is only a question of whether it is referred- is that the president not belong to any political party. I also suggest we add to it provision to the effect that it should include organisations affiliated with political parties but perhaps provide that that not be justiciable, so that you do not start getting litigation in the High Court on the subject. It should be wider and include organisations affiliated to political parties.

CHAIRMAN- I think we all take it that we are not trying to draft the question legally; we are putting the principle rather than the legal framework.

Mr BRADLEY- I wish to speak against. Some arguments placed up before this Convention this week or last week have been paper thin. I think this is really tissue paper thin. The idea that somehow an elected, appointed, selected or balloted president will be a neutral umpire because that person is required to resign his or her membership from a political party is the sort of tissue thin argument that the people of Australia will see through.

I find it quite satisfactory to rely upon the part of Working Group J's resolution, which we have already referred to the Resolutions Group, which is the oath that any new head of state would have to take, which would be `to do right to all manner of people after the laws and usages of the Commonwealth of Australia without fear or favour, affection or ill will'. For my part, that is sufficient. It does not matter to me in the least whether the head of state is a member of any particular organisation. Having sworn that oath or affirmed that matter, it is sufficient for me that a new head of state would conduct himself or herself appropriately. It seems ridiculous to have to have inquiries into the memberships of organisations that persons have in order for them to qualify for this office that we are proposing.

The final point I wish to raise is that there are many eminent people in the community upon whom are conferred life memberships or honorary memberships of organisations. It seems quite odd that we should require people to renounce those dignities which have been put upon them by organisations they have served in order that they ought to be able to serve their country as a whole.

Ms RODGERS- I would suggest that the most important thing is not whether someone should resign but that they should be required to notify people of their membership in political organisations so that the people understand where they are coming from. I find it just amazing that this is suggested because we have constantly been assured by the republicans that the appointed person will be apolitical. I think this just proves to all of us that the appointment will not be.

CHAIRMAN- Having in mind that the requirement is only 25 per cent for a reference, I put the amendment moved by Mr Muir.

Amendment carried.

CHAIRMAN- The question now is that the report of Working Group L be referred to the Resolutions Group.

Motion carried.

CHAIRMAN- That then, as far as I can determine, concludes our voting. We therefore have some time to move back on to the general speakers, which I now propose to do. There are two other matters that I have to advise you: the first is that the working groups for tomorrow's session should now disperse to meet and, second, can I suggest that we will not start with the working group reports tomorrow morning because I suspect they may be a little late. Therefore, we will start in the morning with the general addresses on whether Australia should become a republic. Hopefully, we will get all the working group reports and be able to move to them at about 10 o'clock. So that will allow the working groups a little more time if they have difficulty in concluding their consideration tonight.

I know the difficulties for delegates but I trust that, having in mind the admonition of several delegates earlier today, all those delegates who are involved neither in a working group nor in the Resolutions Group will remain because I would like to call on several speakers still on the general question. We have a lot of speakers to get through, so we will continue our deliberations until 7.30 as had originally been intended. I call on Ms Helen Lynch to give her general address.

Ms LYNCH- Mr Chairman, delegates: it is a great privilege and special honour to be an appointed delegate to the Constitutional Convention. While I retain the deepest respect for our monarch, I am emotionally committed to the republican cause and have been for a number of years. I came to the Convention inclined to the McGarvie model but with an open mind prepared to listen to all divergent views and to support a model which would actually work in practice.

My business experience has taught me that thinking up radical new ideas is often the easy part. The hard part is the execution. Seasoned practitioners of any profession will confirm that this has been their experience in implementing change.

Our Constitution has served us well in the past, but it was devised by a few dozen politicians and all were men. Australia was then a very rich, monocultural society consisting of large isolated settlements with poor communications. There were no interstate highways and there was no female suffrage. Aboriginals had no rights and Asia was a colonial backwater.

Contrast that to how we see ourselves now- young, vigorous, energetic, creative, proud of our role as the home to the oldest living culture in the world, optimistic and committed to an open, tolerant, multicultural Australia. In this modern globalised economy the role of the head of state is primarily to represent us both to ourselves and on the world stage, to be an advocate for us and to promote trade for Australian resources, manufacturers and services. To do this we need one of us to be our head of state. Queen Elizabeth and the British royals fulfil this promotional role for Britain, often in direct competition with Australian products and services. Commonsense dictates that it is in the best interests of Australia for us to become a republic.

The consequent question is: what sort of president should we have, and who decides? Last year, I read a very thoughtful and analytical piece of research which distressed me greatly. The report commissioned by Clemengers entitled The Silent Majority III outlined that the Australian people mistrust those of us in positions of power and influence, business leaders, politicians and the churches. Our Australian people feel that we have let them down.

This loss of respect by Australians is well documented and it is timely to reflect on how this happened and to consider what we might do to regain that trust and respect. We need to address the big topic issues of greatest concern, embracing moral, ethical and economic issues within our community. Then the Australian people might start to trust politicians again.

While I readily acknowledge the support for direct election, I suspect that the majority of the Australian population, like me about six months ago, have little informed knowledge of our Constitution or the impediments to good governance that could arise if a competitive situation developed between the president and the Prime Minister as a result of direct election.

We should not lose sight of the fact that the Prime Minister is actively accountable. He has to renew his contract of work with the electorate every three years. The principles for a republic that I support are for a model that enables good governance where roles and responsibilities are clearly defined and accountability is transparent and where the integrity of the process is evident and appropriate checks and balances are in place. I think we should make provision for ongoing constitutional review. What we want really is a system that works in practice.

In summary, I would prefer a president to be appointed on the nomination of the Prime Minister and seconded by the Leader of the Opposition- bipartisan support confirmed by two-thirds majority in a joint sitting of both houses of parliament. I believe dismissal should be moved by the Prime Minister and endorsed by a majority of the House of Representatives and the Senate or by a constitutional council acting with advice from the Prime Minister.

While I have not entirely discounted the possibility of an electoral council or provision for wider consultation with the community, I definitely prefer the ultimate accountability of the bipartisan approach. After all, we the people get the politicians we the people elect. I support a broadly based process to progress the education of the community before the referendum. Our job is to get the intent and the settings right for the preamble and the Constitution and then let the constitutional lawyers loose on the changes we agree to.

To me, a republic is a visible symbol of a mature, confident, independent Australia, accustomed to and enjoying our place in the Asia-Pacific region; an Australia proud of our tolerant multi-racial society, and understanding the many cultures in the countries with whom we share the region. We all know that no worthwhile change is ever achieved without passionate ideas and hot debate. We have certainly seen that from all camps at this Constitutional Convention. If passionate ideas and hot debate are the criteria, then I anticipate that we will have a very positive outcome.

My wish is that we leave this Constitutional Convention united in our support for a republican model for the Commonwealth of Australia which reflects the aspirations of the majority of Australians. If the president of Australia were to be a woman, that would really be the icing on the cake.

Mr VIZARD- Thank you, delegates, for flocking in! Each of us stands here charged with answering a fundamental question about the future of our great nation. In answering that question, each of us asks: how can I best serve my nation? Nationhood is not a prize which, having been won, sits silently on the shelf and gathers dust. Nationhood is not a destination reached by our forefathers some hundred years ago from which no subsequent journeys are to be made.

Nationhood is not a yellowing scroll of parchment comprising signatures of long dead lawyers and politicians, the sepia photographs of our grandfathers and great-grandfathers that line the walls of this building, or a rare and exotic beetle captured in amber. Nor is nationhood some bare ideal or principle that stands abstract and apart from our day-to-day lives, that sits remote in time and place from the dinner tables, the playschools and the factories and the beaches of our country.

Nationhood is the journey we make each day. It is the tangible freedoms and rights which shape our lives each day. It is the time we spend with our families, the daily pick-up from school, the money we spend, the sports teams we follow, the beaches and the mountains we enjoy. It is the values and the frameworks shaped by our supreme Constitution within which we fashion our daily lives.

Equally, nationhood is about how we abuse our environment, sack the land, or rob our indigenous people. For better or worse, every waking moment of our existence, who we are and what we do, are the real concrete manifestations of nationhood. Nationhood is not a prize, nor is it a gift. It has a price. Nationhood carries a heavy burden and a deep responsibility: the responsibility to understand our charter, its rights and obligations; the responsibility to value and abide by our Constitution; and, critically, the responsibility to interrogate, to improve and to reinvigorate our governing Constitution and our nation to constantly make it better, more relevant and more meaningful.

Nothing is beyond improvement save for God and the combing of Bruce Ruxton's hair! It is here that we part company from our friends the constitutional monarchists. It is said, `Why tamper with our Constitution?' It is said, `Why touch a document that served us well?' It is said, `Hands off the Constitution.' We say that our Constitution, the supreme charter of our nation, was intended by our founding fathers to have our hands on it. We say that it is in the very essence of our nationhood that the charter of our nation is intended to be touched and felt and challenged.

Great nations rise and fall because in their complacency they refuse to look at themselves and their governing instruments and institutions. They bask in the sun of the work of their forefathers. They refuse to rise up from their beds, built by the sweat of their forebears, to help build for future generations.

Are we incapable of the work of our founding fathers? Are we incapable of the energy, the commitment and the compromise of our founding fathers? Nationhood brings with it obligations and imposes these obligations on all its citizens, from the meanest to the mightiest. Daily, our nation challenges us. Is this nation the best it can be, today and for our children, and for every Australian? We should ask that question, just as our founding fathers asked that question a century ago.

Our founding fathers were not so complacent as to make any presumptions of the sacred inviolability of that which they crafted when the undertook their work. They knew well that what they fashioned was not perfect, that it represented a compromise: a compromise by the imperial parliament, a compromise by individual state parliaments and a compromise by the great men of the time- a unique compromise of excellence; nevertheless, a compromise tempered by the spirit of optimism and political expediency. We would be foolish to attribute to that timely work of compromise, a perfection and inviolability never intended by the men who were closest to it.

Moreover, our founding fathers sought to make their charter relevant to their time, in a way that challenges us to do the same. When confronted with the task of binding together five separate states- each with disparate navies, armies, police forces, postal systems, transport systems, bureaucracies, parliaments and governments- our founding fathers looked to a unifying symbol born of the moment, born of their moment: the symbol of the British Crown. At a time when nearly three-quarters of all residents of each separate state were born in the United Kingdom or of Anglo-Saxon heritage, it was the Crown and symbolism of the United Kingdom that uniquely bound them together. It was the Crown which then, unlike today, forged a powerful, relevant, meaningful symbol born of a common heritage and the common experience of all Australians at that time.

We honour the commitment of our founding fathers by seeking to find a head of state born of our time and no less relevant to today's Australians- to our new immigrants, to those of European or Asian heritage, to the indigenous Australians, citizens all. To the Australians of today, no less relevant than the Crown was to our Anglo-Celtic forefathers of the 19th century.

The humanity and fallibility of those who drafted the Constitution was not a glib sentiment. They expressly recognised that they could not, would not, speak unshakeably for future generations and so enshrined in the Constitution is both an expression of their own fallibility and humanity and a challenge to future generations, an invitation to continue what they had started. Section 128 of the Constitution expressly provides a means of amending our governing social contract by popular vote of the people of Australia at referendum. By this, the architects of our Constitution expressly acknowledged that their work of compromise should be improved to accommodate that which they had not foreseen, to abolish that which needed change and to achieve that which they could not. In section 128 we find the express challenge of our founding fathers, handed down to us and to every generation. The challenge: is this is the best our nation can be?

This is not the speech I was going to give this morning, although the numbers would have been better. On reflection, it is clear that the debate at this Convention has moved on. We have heard each other and have come to know each other, if not to agree with each other. The debate has moved on and I do not believe it helpful or constructive to make the speech that I planned to make four weeks ago, to run the arguments we ran at election and to further entrench views already entrenched. To do so is to acknowledge that no dialogue has taken place, that we have not listened and that we have not been moved.

I planned to talk about the advantage of individual republican models. I planned to say that it is clear that the Queen is the head of state and cite a number of texts and laws. I planned to say that while the expression `head of state' is not a constitutional term, it is equally true that the Queen enjoys the primacy powers and authority of a person occupying that position; that the failure of the Constitution to use the specific words `head of state' does not change the Queen's actual role any more than its failure to mention Buckingham Palace does not change her place of residence.

Together we have had our hands on the Constitution this last week. We do not propose to change the name of this country. We do not propose to change our membership of the Commonwealth of Nations. We do not propose to change the powers of the head of state. We do not propose to obliterate the relationship which exists between the Prime Minister and the head of state on the exercise of reserve powers. We do not propose to shred the delicate tapestry of democratic institutions.

So the constitutional monarchists ask us: why bother? They ask: why bother to do anything? Our founding fathers ask us to do better than ask why bother.Why bother to have a Constitution that makes sense to the man in the street? Why bother to have a head of state who is unambiguously relevant to the state he or she is supposed to represent? Why bother to have a governing contract that means what it says? Why bother to empower a symbol? It is not good enough to argue that the Queen does not do us any harm and that she is distant, latent, limp, unobtrusive and does not get in the road. Symbols are supposed to get in the road. Symbols are supposed to be as powerful as the Queen was to our founding fathers 100 years ago. Symbols need to be drawn from the wellspring of common experience of Australians living in Australia today.

Talk about the need to reinvigorate symbols and to look for common meaning is more than rhetoric. Ask any businessman about the need to provide a clear mission for a corporation, a set of values and a charter of defined roles and authorities. The creation of an unequivocal communication of these fundamental values goes to the heart of corporate identity and in turn to the capacity of employees and corporate stakeholders to better fulfil their roles, to work to deliver bottom line results and to create greater value for all stakeholders.

Nations deserve powerful, relevant symbols no less. This is not the speech I intended to make this morning. I urge all delegates to seek to answer the question that our founding fathers asked and continue to ask: is this the best my nation can be? They should answer that challenge with the commitment, energy and spirit of adventure and willingness to compromise that our founding fathers brought to the birth of our nation. Mr Chairman, it is not just in the answer but in how we answer that we continue to define our nationhood.

Sir ARVI PARBO- Mr Chairman and delegates, I am one of these people who came to this Convention with an open mind and without a commitment to any particular outcome. My expectation was that the arguments put forward by those who, unlike myself, have been involved in the debate for some time would point to a desirable course of action which was clearly superior to the alternatives.

We have certainly had many points of view put over the last seven days. Many of the presentations have been thoughtful and constructive. Some have been one-eyed. Some have been calls to the barricades, and some deserve to be nominated for television awards. So let me tell you what I have gleaned from all this collective wisdom in terms of the outcome.

The starting point is that the Constitutional monarchy has served Australia well. It has been far superior to many other systems of government in other parts of the world, including many which go under the label of republic. One of the best things that happened to me early in my life was that I was able to avoid living in the Soviet socialist republic and become a citizen of the Constitutional monarchy of Australia. Incidentally, over the years, I have found that some republics are good and some are bad. When someone speaks of a democratic republic with the stress on the `democratic', it is well to become cautious. When the term becomes `people's democratic republic', it is time to turn and run.

There seems to be practically no argument about the past merits of the present system. I will quote from Malcolm Turnbull's opening comments on behalf of the Australian Republican Movement:

There was nothing wrong with our nation. Australia had become a proud and independent country years ago, but there was something wrong with our Constitution. It still provides that our great Commonwealth is presided over by the Crown of the United Kingdom, of Great Britain and Ireland. Our goal is a simple one. Australia's head of state should be an Australian citizen representing Australian values living in Australia chosen by and answerable to Australians. That is the goal for which we have fought.

Nothing could be clearer than this statement. There is nothing wrong with Australia, and we are already an independent country. The only requirement is that the head of state be an Australian. To achieve this, the Australian Republican Movement does not propose to establish an Australian monarchy. They wish to convert Australia into a republic.

Those in favour of continuing the constitutional monarchy argue that the head of state of Australia is already an Australian, the Governor-General. The only role of the Queen is to appoint and, if need be, dismiss the Governor-General on the advice of the Australian Prime Minister. To quote from Mr Lloyd Waddy's opening statement on behalf of Australians for a Constitutional Monarchy:

. . . it was rediscovered that even when she was present our Australian Constitution denied the Queen the exercise of any of the Crown powers vested by it in the Governor-General. The Governor-General continued to administer the government in all its fullness in her presence. He was not her agent. He was not subject to any direction by her. His powers, the powers of the Governor-General, derived from the terms of the Australian Constitution, the Constitution that Australians themselves had voted to adopt.

It seems therefore that, as the Prime Minister has put it, the argument is about symbolism. There is no case for challenging the existing system on grounds that it is not working satisfactorily or that a republic would produce a better result for the Australian people. Our existing system is serving us well. We are already completely independent and governed by Australians. The difference in views is that the constitutional monarchists see symbolic value in the Queen remaining the titular head of state. The republicans see symbolic value in the titular as well as the de facto head of state being an Australian. The decision will have to be made on emotional not on practical or pragmatic grounds.

If Australia were to become a republic, the powers of a republican president and the method of his or her appointment must be decided. It seems to me that, as the supporters of both the constitutional monarchy and of an alternative republic agree that there is nothing wrong with the present system and that the issue is who should be the titular head of state, it must follow that the powers of a republican head of state should be exactly the same as the powers of the Governor-General, the present de facto head of state. Certainly no convincing case for changing these powers has been made at this Convention so far.

For the same reason, it seems to me logical that the method of appointing and, if need be, removing the president should be as close to the present method as possible. The proposals for electing the president either by a two-thirds majority of both houses of parliament or by direct election would be very different from the present method. It has been said by some at this Convention that the Australian people are overwhelmingly in favour of a direct election of the president. It is not clear what evidence these statements are based on, but presumably the sources are opinion polls.

With great respect to opinion polls, it is well known that the results depend greatly on how the questions are asked. In this instance, when those polls were asked whether they favoured direct election of a president, were they informed that the consequences are that such an election would inevitably become politicised; that the person elected could therefore not be seen as an impartial umpire; that in such an election the smaller states would be swamped by Victoria and New South Wales; and that, in the case of more than two candidates, the winner could receive well under 51 per cent of the votes? I suspect that they were not so advised and the results are therefore of questionable value.

Against this background, a poll by the Melbourne Age last weekend- presumably again without the explanation of the implications- showed just 51 per cent favouring direct election. The newspoll published by the Australian indicated 56 per cent. I also note that only 41 per cent of the voters participated in electing delegates to this Convention- arguably, a more significant event than the routine election of a president. All this does not add up to the indication of an overwhelming desire for a direct election. Incidentally, if we at this Convention need our egos deflated, the Age poll also concluded that only 13 per cent followed the debates at this Convention closely and that 64 per cent did not think the cost of the Convention was justified. That is just as a matter of interest.

Where do I come out after all this? The task of this Convention is to select a model of an Australian republic that could be put to the Australian people as an alternative to the present system. In my view, the McGarvie model would retain all the strengths of the present system, while satisfying those who wish to have an Australian as the titular as well as the de facto head of state. The only difference I had with Mr McGarvie was that I thought the republican head of state should be called president and not governor-general. As it happens, the Convention has already so decided.

 

While the head of state of Australia should, in my view, be called the president, the states could well continue to have governors if they so choose. With that small modification, I therefore support the McGarvie model as an alternative to our present system. I would be happy for the constitutional monarchy to continue, but if the Australian people so decide, I would also be very happy to live in a McGarvie Commonwealth of Australia.

Finally, on the referendum, we all know that most issues put to the Australian electorate in past referenda have been rejected. There are no doubt many reasons for this, but one of these must be that the people, quite reasonably, will not vote in favour of anything which cannot be put and explained simply. In my view, simplicity also has to be the essence of any republican model put to the electorate if it is to have fair consideration.

Those who attempted to piggyback their pet beliefs by trying to graft them to the model would do well to remember that this may well result in the failure of the referendum. This must be particularly so in this case because, while formally the referendum needs the support of the majority of the voters in the majority of the states, it has been pointed out that, because of the need for all states to pass complementary legislation, in practice the referendum really has to be carried in all states for the changes to be implemented successfully. Agreement on this scale is a very tall order, very unusual indeed, and it underlines the need to be scrupulously honest with the voters.

CHAIRMAN- I declare the Convention adjourned until 9 a.m. tomorrow, when we will resume the general addresses.

Convention adjourned at 7.39 p.m.


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Last updated: 21 October 2000