The Foundation for National Renewal   The Constitutional Convention of February 1998

Federal Election October 2004: Which Candidates Trust the People?

TRANSCRIPT OF PROCEEDINGS
Tuesday, 10 February 1998
Page 4

Dr TEAGUE- Mr Chairman, I will be as brief as possible. I fully support all that has been set out in the resolution for Working Group L. Technically, it is only the first few paragraphs down to `other issues raised'. The resolution to be adopted does not include the second half of the text under that heading `other issues raised'. They are, therefore, reporting.

I concur entirely with Kevin Andrews's summary of this matter. It is this: there are two qualifications being recommended for any head of state of Australia- one is to be an Australian citizen and the other is to be eligible to vote in House of Representatives and Senate elections. There are two disqualifications- one is related only to members of parliament, that there is a 12-month cooling-off period and the other is that disqualification set out in the Constitution of Australia right now in section 44, which relates to all elected members of the House of Representatives and the Senate. We believe that no less a test should be placed upon the Australian head of state.

The final element is that we are conscious that there has been an inquiry in the parliament about section 44 and that the two contentious matters- that is, subsection (i) and (iv)- are subject to careful report. This has been a bipartisan finding in the parliament and it is one which the government has flagged it will support in due time.

I would like to clarify that we believe that the disqualifications set out in section 44 should hold for any head of state of Australia and that they should continue to hold with any amendment to section 44, should that be put in a separate referendum. There is no intention to have the section 44 matter subject to a referendum as part of a republican referendum. I fully commend this resolution for delegates to support.

Dr COCCHIARO- I support the report of the working group on dual citizenship, but I do note that there is a House of Representatives report with bipartisan support for a referendum to amend section 44 so that dual citizenship will not be a bar to standing for parliamentary office in the future. I look forward to that happening, and I expect that to happen.

The critical point should not be `previous or other citizenship'. Australians should not be penalised if they or their parents were born elsewhere. Once they have taken the step to become Australian citizens- and really there is no other reason to do so other than out of a feeling of civic responsibility and pride at the current moment in Australia- they should be valued just the same as any other Australian.

I would also like to advance the premise that only Australian citizens should be able to vote on issues to do with national identity. Australian citizenship is not to be taken lightly. The majority of Australians by virtue of birth have probably not thought deeply about what it means to be a citizen. Being a citizen implies responsibilities, duties and benefits. One of the very important responsibilities is taking an active part in civic life. It is my strong belief that Australians who have gone through the process of naturalisation have thought about the issues and then have made a conscious decision to take on the duties and responsibilities of citizenship. I must say that I was quite distressed for all those Australians who have made this important decision to hear Mr Bonython, who leads the Constitutional Monarchy ticket in my own state of South Australia, say:

. . . it distresses me when such people-

he was talking about migrants to our country-

have been welcomed into our community with open arms, then start to advocate changing our form of government-

That is what he said. Delegates, I put it to you that taking an interest in the affairs of our country should be the duty of every Australian. Those Australians who chose this country and chose to become citizens should be commended and valued, not put down.

I was also in the chamber last week, and I must say I was moved to the point of tears, to hear that great Australian Mr Neville Bonner lamenting his people. He was clearly saying that he could not see his way to change because he had been caged for so long by the ideas rammed down his throat by his mates, the monarchists. Have hope, Mr Bonner. If not for yourself, have hope for other Australians who may have been in your position. You are, Sir-

Mr BONNER- Mr Chairman, I rise on a point of order. I object to the things said about me. Nobody, just nobody, rammed anything down my throat. I am an Australian citizen. I am proud to be an Australian citizen. No-one, as I said earlier, rams anything down my throat.

Dr COCCHIARO- I apologise, Mr Bonner. I was just outlining my understanding of what you were saying in the speech. My understanding also is that you-

Mr BONNER- Let me ram down your throat what you are saying.

CHAIRMAN- I might suggest we try not to engage in personal condemnation.

Dr COCCHIARO- I did not mean it as any sign of disrespect. I saw what you were saying as being like a magnificent tiger that has been caged in a zoo or institutionalised for so long that you could not cope with release or the more progressive points of view. In conclusion, therefore, if we agree that the president should be an unambiguous Australian- and I fully agree with that- then, in much the same way, voting on matters of national significance such as our identity or the head of state should be available only-

CHAIRMAN- I am afraid your time has expired, Dr Cocchiaro. We have one more speaker and then we are going to go on to the general address. I call Mr Sutherland.

Mr SUTHERLAND- Thank you for the courtesy and the opportunity to speak. I will be very brief. Firstly, on Working Group L, the one concerning dual citizenship, may I say that I am quite disquieted by the proposition that there would be no age limit. I draw your attention to the United States Constitution, which has an age limit of no younger than 25 to be in Congress, no younger than 30 to be in the Senate and no younger than 35 to be President. I think we may hold ourselves up to ridicule if we say that, at age 18, you are eligible to be president of the nation. I believe that ought to be looked at for members of parliament, too.

I can well remember sitting up there as a citizen many years ago and watching someone who was referred variously as a political accident in the chamber- I will not say `sitting in the chamber', because he seemed to spend most of his time walking around in the chamber- elected on a great swing against the Labor Party. He was there for one term and has never been heard of since. He sank like a stone. So they are considerations, I think, that need to be taken into account.

I also think it is rather demeaning that members of state parliament are disqualified if they have not stood down 12 months in advance. Why, in the name of Heaven, would you want to say that? A member of state parliament has no influence on the decisions and business of the federal parliament. I think that ought to be removed. If Mr Butler from overseas is eligible to stand, why shouldn't someone in the state parliament be eligible? In fact, I would say that anyone in the federal parliament should be eligible too, so long as they disqualify themselves from the business of choosing who should be the Governor-General. I think we are demeaning our members of parliament and doing the great institution of parliament in this nation a great disservice in the process.

Briefly, on the flag, I have three things to say. The citizen cringe here today has to be answered. Don't we have any national self-respect? What about the flag of Hawaii? The flag of Hawaii has the Union Jack in its corner and that does not seem to worry President Clinton or the 300 million United States citizens. Certainly it does not worry the citizens of Hawaii. They are proud to fly it because it is part of their constitutional monarchy history. On the question of identity- this is one of the most spurious arguments of all; it was raised here this morning and it is raised ad nauseam- let me say this: what does it matter if our flag and New Zealand's flag are not identified? That is because people are ignorant. Our flag is blue and theirs is red. If people are colour blind or ignorant, that is their problem. Besides, remember this: in the constitution debates in 1901, there was provision for New Zealand to be incorporated and become part of our constitution and part of our nation if they so chose.

Also, Professor Blainey has referred to the Netherlands and another country having a very similar flag. He could add to that the flag of the Russian Federation. Let me remind you of this: when the terrible criminal totalitarian state of the Soviet Union was finally dismantled on 31 December 1991, what was the flag that was raised? It was the imperial flag of Peter the Great, which is a copy of the flag of the Netherlands which they have had for 200 years. They reverted to that and they also reverted to the imperial coat of arms.

If you look at the flags of the countries at the top of South America- Colombia, Venezuela and Ecuador- they are virtually identical. They have a small different symbol in the middle of the flag. I ask anyone here to go out and ask any members of the public to identify the flags of Finland or Italy- which have been mentioned here today- or France, for that matter. I defy anyone in the public generally to quote accurately more than five flags from around the world. It is only important for one class of people to identify the Australian flag- and that is fair dinkum Aussies.

In conclusion, the flag does three things: it reflects our history, our early development from colonisation on; it reflects our quiet and orderly conversion, without revolution, to the constitution that we now enjoy; and it reflects where we are, as was said earlier. I am a member of the Australian Flag Association. We have had the same flag since 1901- since the first Prime Minister, Sir Edmund Barton, raised it here in the national capital. Hopefully we will have it forever. If the people wish to change it they may, but let it be done by constitutional change. Let the changing of the symbol of the nation be done in a way that is agreed by the majority of the people. Certainly do not slip it through by some plebiscite. The Labor Party in New South Wales already has a policy to change the Australian flag. I commend the flag. The last thing about it which is important is that it makes an institutional statement that we are a federation with its six points for the six Australian states and one point for the territories. The Canadian flag, with due respect to it, does virtually none of that.

CHAIRMAN- I apologise to the 20 delegates wishing to be called on the working group reports whose names are still down. There really is a major problem that, if we do not start now with the list of speakers on general addresses, those who have not spoken at all at this Convention- and there is still a considerable number- may well be denied the opportunity to do so. I do not think it equitable, therefore, that we proceed with this debate. There will be a limited opportunity after 3 o'clock, when these matters are back before the Convention, for speakers to speak for a limited period of time from the floor. I now propose, therefore, to proceed to general addresses.

One other thing before we do: if any delegate has amendments they wish to propose to any of those working group reports, again, I urge you to lodge those amendments before lunchtime. The earlier they are lodged the easier it will be for us to distribute them and to avoid the difficulties we had yesterday afternoon. The working group report resolutions will be submitted to the Convention at 3 o'clock this afternoon. If you wish to propose an amendment, I urge you to lodge that amendment with the secretariat no later than 1 o'clock. We now move to speakers on the general address.

Ms KING- I feel very privileged to be here. This is a serious issue and I believe that we can and will reach a practical solution. I believe this because of the evidence of my own experience. Contrary to the personal attacks that unfortunately receive so much attention, what I am experiencing in the Australian Republican Movement is a group of people who have come together in a shared belief that Australia should become a republic- a group of people who like everyone here have formed an opinion on how we should do this, a group of people who are committed to achieving a practical outcome and know that this can only be done with give and take. This Convention is democracy in practice. Let us treat it and each other with respect. Part of that respect is listening to everyone's opinion, and this is mine.

If I had to explain to someone who had lost their memory that Australia's head of state was not actually Australian, I would feel utterly ridiculous. Take away the historical connection and the concept is absurd. No-one is asking this nation to lose its collective memory nor to deny the importance of Britain in our history. What we are asking is to examine our future, to explore our values and reassess whether our current Constitution reflects those.

This is a question that I grapple with. It seems that a main argument against Australia becoming a republic is a fear of change, a desire to maintain the status quo rather than take the risk to develop something better. This desire concerns me greatly. Think of all the developments that have improved our lives, both tangibly and intangibly, that would have been lost had this attitude prevailed. Apathy is the enemy of progress and progress requires change.

I believe that Australia is one of the greatest democracies in the world. I share the commitment to maintaining this. I believe that it is us as Australians that can take the credit for our harmonious society, not the Constitution itself. Becoming a republic is one enormous national pat on the back. Generations of Australians past and present have created a fantastic country, but it is not from the wording of our Constitution, however good those words may be, but from the way we as citizens put these words into practice.

The Constitution plays a role in protecting that. However, it could be argued that strict interpretation would have you believe the Governor-General, as the Queen's representative, makes the most important decisions, whereas the government which must have the confidence of the lower house, the people's house, in order to govern could be seen mainly as a debating forum. We know this is not actually the case. In practice, it is our government that makes the decisions with the Governor-General acting on ministers advice. The fact that the main power comes from the government, which is elected by the people, is more a result of convention rather than the actual wording of the Constitution.

We as voters protect our democracy. This is one of the main reasons that I support a two-thirds majority of a joint sitting of parliament to appoint our head of state, not because I want to eliminate the people's involvement in the process. I believe it is fundamental that we have our say in this, but we already do. It is we who elect our parliament and we who they have to answer to. We place our belief in them to govern our nation. Can we not also trust them to make an appropriate appointment?

It seems to me that there is an overwhelming feeling that all politicians care about is power. Well that, my fellow citizens, is our protection. In order to stay in power our politicians must stay in our favour, particularly in a Westminster system. I also believe that the electorate has the ability to judge who they want as our head of state, just as they have the ability to judge who they don't want. This being the case, it is political suicide to lose favour with the voters by making a clearly inappropriate choice.

It is for this reason that the system works at present. Prior to this debate about Australia becoming a republic, no-one seemed to mind that they did not have a direct say in who the Governor-General was- that ostensibly it is a decision made by the Prime Minister with the monarch acting as a rubber stamp. The discussion to change this has understandably produced much concern, because we place faith in the idea that a separate body- in this case, the Queen- prevents the choice from being unsuitable. But, if you think about it, she is not really much protection from partisanship as she only acts on the Prime Minister's advice.

This is where I believe that the two-thirds proposal is actually an improvement. I believe it leaves us less vulnerable to a political choice than the present system. Instead of the Prime Minister alone making the recommendation he or- hopefully one day- she will have to seek the support of the Leader of the Opposition- a requirement that is not currently in place. Within the current system, the Governor-General plays an important role- that of a constitutional umpire. We place our trust in this person to behave as impartially as possible. That is why it is so important that the new head of state represents the nation as a whole and not just a political party.

The events of 1975 proved that there is much ambiguity in our current system- that the umpire role of the Governor-General can be called into question. In this event, the presence of a constitutional monarch did not protect us from the politics of the situation. The Queen did not interfere and Kerr went ahead with his course of action. Whether you believe it was right or wrong is a matter of personal opinion.

The desire to maintain the Queen in her current role is a desire to maintain stability. It is a desire I understand but, given the reality of our operational independence from Britain, it is a desire that cannot be filled by the Queen. It is imperative that if our current system, complete with its ambiguities, is to remain the same, we must maintain the balance of power between the Prime Minister and the Governor-General. We could remove the powers the Governor-General has and make the head of state purely ceremonial or we could add powers and make them much more than an impartial umpire. Both of these are radical changes to our current system of government.

I do not want to throw the baby out with the bathwater. Although I share the sentiment that becoming a republic is a chance to get people more involved via a direct election, I am concerned as to how this would operate in reality. I would like to express my support for the amendment made to the two-thirds model by George Pell for the parliament to make a provision for wide consultation with the community concerning possible appointees for the head of state. The public would be invited to put forward nominations. The list would then be published. You as a citizen could be as proactive as you wish by lobbying your local member of parliament and the media for the person that you have nominated. It allows for both the community and their elected representatives to work together. It allows for all of us to have a voice in the political process, including those who usually do not have access, such as indigenous people, women, minority groups and the young.

Many people have expressed passionately their fear of giving more power to politicians. I understand this, but I worry that a direct election may do just that. The only people able to campaign successfully for this position, if not politicians to start with, certainly would be able by the time they were appointed.

Many people who support direct election have noted the difficulty in campaigning for this Constitutional Convention, but only the so-called `glitterati' were able to get attention. This problem would be magnified in a direct election of our head of state. It would not be an ordinary Australian- it would be either someone who knows how to manipulate the media or can buy their attention. It would not be the quiet achievers who have traditionally been our Governors-General that would be successful. A new head of state with a mandate from the people is a much greater mandate than that of our Prime Minister and opens up the potential for a great deal of conflict.

Most of us believe that effectively we are a republic. Many say the change to a republic is purely symbolic. If this is the case, let me pose this question with all due respect: why keep this particular symbol? You may say because of a special bond that we have with Britain, a bond that I am sure is a lot more meaningful to many of my elders than is possible for me to understand. Nothing can break that bond, not even becoming a republic, but it does mean that we can stand on the world's stage alongside Britain proud of our past ties but excited by our own future.

It is almost the new millennium, the year 2000. I hope it will be a millennium characterised by the wisdoms of hard lessons learnt in the past- the lessons of greed and destruction and, most importantly, the lessons of discrimination. Everyone is excited by the developments and technology, but what I am excited about is the developments in human nature. This Constitutional Convention is an example of how far Australia has come. Unlike the last discussion of this kind almost 100 years ago, we now have all Australians represented here. We have people from different backgrounds, cultures and religions, all of us united by the experience of living in Australia, an experience we all want to protect. Some argue that they want to protect it by maintaining our Constitution. I am here to listen to their views and I respect their passion, but I would like to ask them this: how do we explain to future generations that we place our faith in a citizen of a country other than our own? How do we explain to them that no matter how hard they work they can never be part of a monarchy? How do I explain to the children that I may have one day that they have been lucky enough to be born into a country where anything- anything- is possible except to become our head of state?

Mr GREEN- In dealing with this general question of Australia becoming a republic, I would like to make a few comments about the position of the states under any future Australian republic and to address in particular the question of the states wishing to retain links with the Crown through the appointment of the governor by Her Majesty. I will also touch on the powers of the future federal president in relation to the states in respect of this matter.

A state maintaining links with the Crown poses a dilemma for the Crown and not for the republic. For Her Majesty to appoint a state governor on the recommendation of the state Premier would involve Her Majesty in a domestic political and constitutional issue which may divide or is symptomatic of a division in a state and in Australia. The palace has always adopted the correct position of not intervening in domestic political and constitutional issues.

If such a request was made to Her Majesty by a state Premier when there existed a republic at the federal level, such a request puts Her Majesty in a very difficult position. Such a request would be legal but in my opinion not proper under the Australia Act to fill the constitutional requirements. For example, the Tasmanian Constitution states that the parliament consists of the governor, the Legislative Council and the House of Assembly. The office of governor is an essential element in the legislative as well as the executive side of the Constitution of that state. The position is similar in other jurisdictions. The request therefore to appoint a state governor by Her Majesty where there exists a federal republic would, in my view, be properly declined by Her Majesty thereby putting the issue clearly back in the court of that state concerned and the federal government to resolve.

In my view, a request to appoint a governor, whilst legally correct, would be constitutionally improper. Her Majesty would not act in such circumstances to effect an appointment. In order to prevent the situation arising, a referendum on an Australian republic must deal with this aspect, put it beyond doubt and put it clearly to the people. If the republic is carried out at a referendum, there is no scope for a state to retain links with the Crown. If necessary, supremacy should be given to the federal government to legislate to put this issue beyond doubt. Such an approach would resolve a potential constitutional hiatus involving the office of governor in the state.

Under any legislative mechanism to achieve a republic at the federal and state levels, a vigilant approach needs to be adopted to ensure that the federal government and the federal parliament not use the opportunity of the change to a republic to give the federal president power to appoint state governors or state presidents. I say this as a warning because, during negotiations and discussions on the Australia Bill in 1984 and 1985 in which I was involved, the Department of the Prime Minister and Cabinet pushed for the appointment of state governors by the Governor-General. When that push failed, it was then proposed that nominations for the appointment of state governors be made through the office of Governor-General and then passed to the palace. That, too, was not agreed.

The appointment of state governors, state presidents or whatever they may be called under the states jurisdiction must, under an Australian republic, remain the province of the state. Some states may wish to dispense with the office of governor as a separate entity and, in rewriting their own Constitution, combine the functions of the governor with some other existing office. That is an issue for the states to determine alone.

Therefore, any step in bringing Australia to a republic must remove the false hope, under an Australian republic, that a state be able to retain links with the Crown through the appointment of the governor on the advice of the state premier. But, importantly, the federal president should be kept out of appointments at the state level. Federal involvement in such appointments would be unacceptable.

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Last updated: 21 October 2000