The Foundation for National Renewal   The Constitutional Convention of February 1998

Federal Election October 2004: Which Candidates Trust the People?

TRANSCRIPT OF PROCEEDINGS
Wednesday, 11 February 1998
Page 13

Ms SOWADA- As an archaeologist it is my role to dig up history. Along with the rest of you at this Constitutional Convention, I am helping create it. What an honour it is to be part of this gathering, and I thank the voters of New South Wales and the Australian Republican Movement for the opportunity to be here. I want to also thank the many ordinary Australians who wrote to me in the lead-up to this Convention and during this Convention with ideas for constitutional change. There is indeed great interest out there in the community, and I want to assure those who took the time to write to me that I read as many of those contributions as I was able.

I was born in Australia of migrant parents- people who left their countries of England and Switzerland to start a new life in this nation. Europe was ravaged and war-torn, and my parents sought fresh hope in a young and vibrant country which was hungry for immigrants from around the world. They, along with millions of others, have helped build Australia into what it is today: a strong, independent nation able to hold its own on the international, economic, sporting and cultural stage; a country whose way of life is the envy of many other nations; a country who has overcome the tyranny of distance to become a respected middle ranking power; a country who, despite these qualities, must still look to Buckingham Palace for its head of state.

The monarchy has served us well over the 210-odd years of white settlement. Since Federation, its presence at the head of our constitutional arrangements has provided an enviable degree of stability. Over the years, Australia has made the office of Governor-General its own in terms of powers exercised and the holders of that office. But the reality remains that this office is held at the Queen's pleasure. We may try to gloss over this fact by calling ourselves a Crowned republic or some other nonsensical term, but the Queen's position at the head of our constitutional arrangements is a fact recognised not only in our system of government but also in the very symbols surrounding our highest office.

Of the many events during this Convention, one is served a reminder of the Crown's overarching presence, and it helped reinforce my desire for change. Last Thursday we enjoyed the hospitality of the Governor-General and Lady Deane. Like many here, this was my first time at Yarralumla. It is a cream-coloured mansion set in a gracious park. Somehow the nature of the building- a low-slung, unpretentious and wholly inviting edifice set in acres of bushland- is totally in keeping with the Australian character, with its distaste for pomp and pomposity in all its forms.

As we were served drinks, the glint of gold on the breast of a waiter caught my eye- the unmistakable insignia of Queen Elizabeth II, Queen of the United Kingdom of Great Britain and Ireland. Friends, this debate is about symbolism, the symbol of who we are as a nation- a strong, independent and mature nation. For this reason, I support an Australian republic and will continue to work towards a successful referendum outcome.

I have spoken already of my support for the two-thirds parliamentary appointment model of president. It has been modified to address the many concerns of republican delegates present at this Convention. I believe that ultimately it will enjoy the support of most republicans here. Everyone has made compromises but, as I have said before, it is better that we all settle for 60 per cent of something rather than 100 per cent of nothing at the end of the day.

As one of the last speakers in the general debate, it is perhaps an appropriate time to make some observations about the proceedings. I hope the Chairman will indulge me in this. Firstly, I think it is fair to say that, while the historic nature of this gathering was self-evident, for many of us this truism did not hit home until we arrived for the opening function on 1 February. I arrived here and found an eclectic and distinguished group of Australians, all desiring to serve our nation to the best of their ability.

Secondly, I think we have seen some reputations made and broken over the last eight days. I will let you decide which of those might be which. We have seen preselection campaigns enhanced and ruined, election campaigns launched and ex-politicians relive the ghosts of the past. As an ex-politician myself, I have been surprised at how easy it has been to slide onto the green leather and resume a former way of life. I know that others have felt the same way. And how enjoyable it has been to breathe new life into this lovely building, where the public, press and participants can rub shoulders and see the whites of each other's eyes. That is a quality sadly lacking in the magnificent edifice that sits behind us on Capital Hill.

Thirdly, I want to highlight the important contribution women have made to these proceedings. In the lead-up to this event, Old Parliament House played host to the Women's Constitutional Convention. Three hundred women from around Australia, including some of the delegates here, discussed women's participation and how these issues might be advanced at this event. I believe that history will record that the Women's Constitutional Convention was an important part of the republican debate. It helped redress issues of gender equity and it put these questions very firmly on the agenda.

As a result of this event and the work of the Women's Electoral Lobby and their supporters, we have continued to recognise the need to address gender equity concerns in all our decisions. At every step of the way our procedures have been modified to embrace a more inclusive process. For pushing the envelope on reform, I want to pay tribute to Mary Kelly, Clare Thompson and those other delegates who have supported them. However, it still remains that only one-third of the delegates here are women. That is a very disappointing tally. Both the government, who appointed a large number of the delegates, and the opposition, who did the same in state and federal parliaments, must bear some of the blame for this. Let us hope that women are represented here in greater numbers next time we meet.

Fourthly, I want to applaud the government for their choice of appointed delegates. There was much criticism of the government when this list was announced. In hindsight, this group represents a wide collection of views spanning a range of experiences, ethnic backgrounds and ages. The contributions by the academics and the legal experts in their midst has given our proceedings intellectual rigour. The Aboriginal and Torres Strait Islander delegates have reminded us of the need to embrace a more inclusive Australia and of the need to rectify the mistakes of the past. The youth delegates have been a real inspiration- articulate, informed and eager to contribute to the future of Australia. If these young people, both appointed and elected, represent the breadth of talent and commitment to Australia, and I believe they do, then the future of this country is in very good hands indeed.

As an archaeologist and a student of history, I have been moved to think about how Australians of the future will regard our deliberations. What will archaeologists in 500 or 1,000 years time find? At the very least, the bare bones, the foundations, of this building will resonate with not only our ghosts but also those of Menzies, Whitlam, Chifley and countless others.

Perhaps they will find a garbage bin full of papers as dry as papyrus- Notice Papers outlining the daily ritual of plenary sessions and working groups. And perhaps someone will stumble on a cachet of computer disks- the library so treasured by archaeologists. Their strange shape and lack of visible inscription may cause them to be regarded as cult or fertility objects by a culture which has moved beyond the simple technology of today.

Putting aside these whimsical observations, let us ask ourselves how seriously history will regard this Constitutional Convention. We have all worked to the point of exhaustion. We have debated each other ferociously and bargained hard. It has been a tough eight days and it is about to get tougher. But, whatever the outcome, let history record that we all discharged our duty with diligence, intellectual rigour and with the best interests of Australia at heart.

Mr MOLLER- In rising to address this Convention in this chamber I acknowledge the Ngunnawal people on whose land the national capital stands. I was not born in this country- a fact that assumes some importance in my view as to whether Australia should become a republic. Having decided to make this country my home and once eligible to become an Australian citizen I found that I was required to swear an oath of allegiance to Her Majesty the Queen. Like the Roman tribune examining the apostle Paul, I considered that this, the cost of citizenship, was a large sum. Oaths are important and I do not consider that they should be taken lightly. The price was one that I was unwilling to pay. Solely because of the oath I would have had to take I chose not to become a citizen.

Before I incur the wrath of Ruxton, the story has a happy ending. In time the oath was changed and I became a citizen, taking an oath to Australia. Nevertheless, the experience was a sobering one. It made me think, distil, the reasons for my unwillingness to take that oath. Eventually I concluded that the reasons stemmed from my firm belief that the governance of Australia should be vested solely in organic, that is, domestic, Australian institutions. In most branches of government this is already the reality. Our parliaments, state and Commonwealth, are subject to the Constitution sovereign. The ominous spectre of the Colonial Laws Validity Act looms no longer over them. Our courts supply Australian law, as shaped by Australian judges and enacted by Australian parliaments. True, in shaping and developing that law they looked to English precedent. But they also looked to precedent from other jurisdictions. More importantly, they developed the law to suit Australia's unique society. They are beholden to no courts except Australian courts. Not even the most ardent of the monarchists would argue that appeals to the privy council be reinstituted.

Yet when it comes to our head of state, monarchists maintain the importance of our links to an institution which has little or no relevance to contemporary Australia. This is the only area of our governmental arrangements which remains linked to another polity, the only of our institutions which is not entirely organic. I recognise that pursuant to the Royal Style and Titles Act the Queen is, nominally at least, the Queen of Australia. But I also recognise the reality that this is Commonwealth legislation repealable by the Commonwealth parliament. Should it be repealed, is there any argument that the Queen would not continue to occupy the position that she does now?

I considered the arguments posed by the proponents of the current system. They say, `The Queen is not our head of state; the Governor-General is.' I considered that an intriguing proposition but its falsity was demonstrated when I observed the emblem which graces the gates of Kirribilli House, the official Sydney residence of the Prime Minister of Australia. That emblem comprises two simple letters: ER- Elizabeth Regina. It struck me that if the Governor-General was truly the head of state that emblem would say not ER but WDGG- William Dean, Governor-General. The blatant untruth that underlies the monarchist argument was thus revealed.

It could be argued that I was swayed by mere symbolism. I do not consider symbolism is a mere thing at all. How many Australians are not moved by the symbol of the red poppy, the strains of the Last Post echoing on a frosty morning late in April, those three simple poignant words `Lest we forget'.

Mr RUXTON- Don't start bringing those extraneous issues into it.

Mr MOLLER- These are symbols, perhaps our nation's most precious.

Mr RUXTON- Where do you come from?

CHAIRMAN- Mr Ruxton, would you please be quiet!

Mr MOLLER- The veneration accorded to them demonstrates that symbols, like oaths, are important. They have meaning. They should not be regarded lightly. So let us hear no more about mere symbolism.

I turn to the other furphies advanced by proponents of the status quo. In challenging these monarchist arguments I reflect on the observation of that most esteemed of Australian social commentators H.G. Nelson of Triple J's This Sporting Life:

There's nothing more enjoyable than seeing a couple of old boofheads championing the cause of the royal family. I love seeing old monarchists lurching about the country and young bucks prepared to come out and have a whack at the current state of affairs. I love all of that.

Monarchists rant about the central position occupied by the Crown. I doubt many of them would be able to explain the concept of the Crown and they fail to recognise the development of the Australian Crown which has occurred. They rail about the importance of the royal prerogatives. Most of them would not recognise a royal prerogative if it jumped up and kicked them in the head. As to the prerogative writs, which I doubt many monarchists could name let alone explain, they are already secured in section 75(v) of the Constitution. Michael Hodgman knows what the prerogative writs are because he has told me he does.

They rave about how this country has been independent since Federation, yet they ignore the inconvenient fact that were this truly the case there would have been no need for the passage of the Statute of Westminster or the Australia acts- provisions which they are so fond of quoting to the rest of us. They remonstrate that ours is the greatest Constitution in the world and that to tamper with it will bring about the end of civilisation as we know it. Nonsense!

Fundamentally, the Australian Constitution does two things: it specifies in section 51 the subjects in respect of which the Commonwealth may legislate and in Chapter IV lays the ground for free trade between the states. Its greatest success lies in merging American federalism with British responsible government. Even then it does not specifically enshrine responsible government. That doctrine has to be implied from section 64.

The Constitution is not an immutable document, carved in stone and incapable of change. Nor is it, as monarchists claim, perfect and complete in all it contains and needs to contain. Many of its provisions are spent, the scope of others constrained by High Court interpretation. Notable instances are section 94 concerning the distribution of surplus Commonwealth revenue to the states and section 101 concerning the Inter-State Commission. I doubt many monarchists, even those who claim omniscient knowledge of the Constitution and the ramifications which will accompany its change, can explain the continued need for such provisions or how changing them will make us worse off. Rather, they are a flock of Chicken Littles running around the country crying, `The sky is falling. The sky is falling.'

Mr RUXTON- I bet the new South African Constitution wouldn't suit you!

Mr MOLLER- South Africa is the nation of my birth, Mr Ruxton. I would probably know a damn sight more about it than you do.

CHAIRMAN- I suggest you might ignore interventions and continue your speech, Mr Moller.

Mr MOLLER- Recall that there was similar nay say before Federation- those who opposed the creation of the Commonwealth. If their view had prevailed there would be no Australia at all, at least not in the form we now know it. The Australian Constitution is a tired document. It no longer reflects the needs of country, let alone its aspirations. It is in this area that I think the true value of the republican debate and this Convention lies. Hopefully, the process will spark a renewed interest in the Constitution and Australia's system of government. An informed populace is an empowered populace.

I also observe the fact that the proponents of the status quo, those who claim the mantel of the defenders of all that is right and good and true, are often the same individuals who engage in vitriolic criticism of the judiciary. They rail against decisions of the High Court and attack individual judges on a personal level. They thereby undermine the status of the courts and the crucial position they hold as the final arbiters of controversy in the community. The separation of judicial power is a fundamental element in our democracy. In impugning that doctrine they not only demonstrate their contempt for it but also do more to undermine the democratic governance of this country than any change to a republic would. It also demonstrates that many monarchists adhere to the status quo only when it suits them.

Having seen through the untruths underpinning the position of monarchists, I stand, at the beginning of 1998, on the verge of commencing my chosen career- the law. Yet I find that, before I can be admitted to practice, I must take an oath to the Queen. Again, I am stuck in a ludicrous position. In order to apply Australian law for the benefit of Australian clients in Australian courts, I have to take an oath to the Queen of England.

Brigadier GARLAND- Of Australia.

Senator STOTT DESPOJA- Support him, Chair; allow him to be heard in silence.

CHAIRMAN- Please allow Mr Moller the same courtesy you expect yourselves.

Mr MOLLER- Thank you, Mr Chairman. To paraphrase one of the world's most forthright legal thinkers, Horace Rumpole, I am certain that Her Majesty will lie awake at night fretting constantly about how Carl Moller, having sworn his allegiance to her, is performing that role.

As I said, oaths are important. Again, it is one I am unwilling to take. A specious and spurious connection with what is, for myself and many other Australians, a foreign institution impedes my ability to live my life as an Australian in Australia as I see fit. Fellow delegates, fellow Australians, in my opinion this is why our country should become a republic.

Ms ATKINSON- I am delighted to rise as almost the last speaker in this segment as I believe speeches are professions of faith. Many of us have been elected by the people of Australia to come to Canberra to discuss, debate, evaluate and assess the very important question of whether Australia should become a republic, and the processes and choosing of a head of state. Even though we have now been here for nearly eight days and perhaps the shine has gone off the glow of our campaign idealism, I hope that the whole experience of being here with such a representative group of Australians has further reinforced our beliefs.

I believe that Australia has come to a stage in our history where we should have our own head of state who would reflect our status as an independent and autonomous nation- in other words, as a republic. For many of us, this has been something of a journey of faith, perhaps even similar to the experience of Saint Paul on the road to Damascus. For me, I guess, the journey began in 1988 with the referendum on constitutional recognition of local government. In that campaign I realised that the Australian Constitution needed revisiting and needed to be updated for our time. It was of its time and appropriate, but not for our time or for the future. Moreover, I have since come to realise that the Constitution has not really been what it was supposed to be then- a document of the government of this country.

Many advocates of no change are very passionate in their defence of what they call `the system', and I agree with them that we have among the world's best practice in politics- a great democracy with a high regard for human rights. But is the system described in the Commonwealth Constitution? Absolutely not. In a sense, the Commonwealth Constitution has never operated as it was written. It was never followed in practice, even back in 1901. Those first generations of federal politicians worked out some very clever ways to operate around the constitutions. Americans venerate their Constitution, which actually operates exactly as it was written. The US Constitution, operative from 1790- more than 200 years ago- is not showing its age; ours, operative from only 1901, I believe is.

One of the greatest frustrations for me at this Convention is that monarchists come to praise the Constitution but never to quote it. They refer to the systems as if they are identical and they are not. What are the central elements of the system as it has evolved? An indirectly chosen head of state, a consensus figure, without executive authority who can act as an umpire if an unexpected event- such as the death of Harold Holt- occurs; a Prime Minister and cabinet which exercise executive authority; and a House of Representatives, operating under the Westminster convention, which determines after a general election which party has or group of parties have a mandate to govern.

But the core of the system which monarchists venerate and republicans, indeed, admire is not in the Constitution. Section 61 of the Constitution reads:

The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative . . . 

That is it, no ifs or buts- and I think, Mr Chairman, this is probably the first time that section has been read out at this Convention. Those who say we should not change a word of the Constitution- and, indeed, there are many- and insist that our Constitution is fine as it is obviously have not faced up to section 61; if they did, it would be to put in a side bar or a footnote which would read `ignore' or `do not read this'. Prime Minister and cabinet? There is no such thing. There is no reference at all to a Prime Minister and the cabinet system of government in the Constitution. It has evolved certainly in practice, but it is not in the document. The Constitution makes no reference to the role of elections, the House of Representatives or the party system in the making and unmaking of governments.

It has been argued that we have a dual system of government: the big `C' Constitution and the small `c' constitutional practice and history- and I very much hope that we can bring those two models together so that we can actually read the Constitution, teach it in schools and help people to understand how we govern ourselves. The big `C' Constitution is a monarchical top-down divine right model; and our small `C' constitutional practice has evolved over 97 years of experience and is indeed, as Lloyd Waddy and Tony Abbott concede, a de facto republic or a crowned republic.

One of the persistent myths peddled in this chamber has been that, since the passage of the Australia Act in 1986, the Queen has no continuing constitutional role in Australia other than appointing or dismissing the Governor-General on the Prime Minister's advice. Under sections 59 and 60 of the Constitution, the Queen retains the right to veto Commonwealth legislation- unthinkable in practice, you would say, and I think that is certainly true, but it is still there. Indeed, the Australia Act of 1986 did absolutely nothing to change it.

The Australia Act provides in sections 8 and 9 that no act of a state parliament can be disallowed or vetoed by the Queen, and it is silent about the laws of the Commonwealth. This is because a constitutional referendum, of course, would have been required to repeal sections 59 and 60, and the issues were very much ducked. Obsolete? I guess so. But it demonstrates the need to entrench small `c' constitutional practice into our big `C' Constitution.

I must say, Mr Chairman, one of the more irritating assertions of the ACM at this Convention has been that, if we try to amend our Constitution to provide for an Australian head of state, we would somehow prove incapable of doing it or we would muck it up. It is as if our founding fathers- because, of course, there were no founding mothers- had the last word and that nothing can be added to what they wrote in 1898.

Have we learned nothing from 100 years of experience of working in the Commonwealth? Indeed, we have, and the time has come to legitimise our de facto arrangements and to put our small `c' constitutional practice into the big `C' Constitution. I think it was Sophie Panopoulos who argued that there is an Australian head of state, that it is there already. Regrettably, she did not quote the section in the Constitution that says so- and, of course, she could not because it is not to be found there. There is no reference to an Australian head of state in the Constitution. I think the toughest challenge of all for any monarchist would be to read chapter II, the executive government, aloud to this Convention and say, `That's an accurate description of our system, and I agree with it.' That is one challenge I am afraid that the ACM is never going to meet.

So, Mr Chairman, there is a striking division in the ranks of those who oppose the move to a republic. One group says, `In practice, it will change nothing, so it's really not worth making the effort.' The other says, `It's going to change everything; it will lead to raping the states, destabilising the region, possibly contributing to World War III and lead to the emergence of a Hitler or a Mao.' All those things have been said at the Convention. Can they have it both ways? Well, apparently.

But I think this Convention ought to make its decision on rationality, and reject the wild claims being put in the debate. As I have also said earlier this week or last, we now have an opportunity to put in place a framework and a structure which will serve us for the years ahead- and pivotal to this new structure and framework is an Australian head of state.

A head of state is an important symbol and I believe very strongly that symbols are important. They affect how we think and how we feel about ourselves as well as how others see us. A head of state should be someone who is able to go out not only to represent Australia but to actively promote Australia and to do this in a way that is free from political constraints, because any Prime Minister, no matter how good he or perhaps she is at speaking out internationally for the Australian people, is always going to be distracted and sometimes deterred by political considerations back home- and we have seen examples of that.

Back to my journey. I was a Brownie way back when the Queen came out in, I think, the early 1950s. I came by train from Southport, where we lived, to South Brisbane station and we walked across the bridge- for those of you who know Brisbane- and stood in the hot sun outside the Roma Street station, and a marvellous experience it was. But I do not think that my granddaughters would ever feel that same degree of excitement about the Queen- the symbol as she was for us all then. I grew up as a small child in Sri Lanka. I was there at the time of independence and I remember the violence not only there but also in other places in the region. We, here in Australia, have an opportunity to become a republic in a way that is free of violence and free of fear and in a way that is truly Australian: by evolution rather than revolution.

Tomorrow, we are all going to be called upon to vote on the major questions before this Convention. Today, a model has been agreed upon by the republicans among us- a preferred model with the support of a broad group of republicans- and we all look forward to constructive debate on this model tomorrow. We all look forward to what we believe should be a successful outcome for this Convention and for the people of Australia.

Ms KIRK- At this Constitutional Convention, we are charged with the important responsibility of deciding whether Australia should sever its links with the British monarchy and become an independent republic. At the outset I should say that I am firmly of the view that Australia should adopt a republican Constitution. It is no longer acceptable that the executive power of the Commonwealth is vested by section 61 in a foreign monarch who is not resident in Australia.

I, like many delegates, have written this address a number of times. As the days pass, I become more and more conscious of the significance of the task that we face and the enormous responsibility we have been given by the Australian people. As a constitutional lawyer, I want to see a republican model emerge from this Convention that not only will be embraced by the Australian people in a referendum but also will serve this nation well into the next century and beyond.

I agree with the sentiments expressed yesterday by Professor Craven in the chamber, that is, the choice which confronts delegates is not between the status quo and the republic. The mood of the Australian people is, and has been for some time, that Australia should move to a republic. As delegates, we must design a model which will reproduce and build on the strengths of the existing system.

I have decided to confine my comments today to three of the models that have been proposed and that we must vote for in the next two days. The contribution made to this Convention by Sir Richard McGarvie is to highlight what is the linchpin of existing arrangements. As he has observed, it is the sanction of immediate dismissal of a governor-general who acts without, or contrary to, advice that has given us our stable and secure democracy. Professor Craven has called this `the McGarvie principle'. I believe that this must be reproduced in a new republican Constitution.

It is to the method of dismissal under each model that I will direct my comments. The McGarvie model itself provides for dismissal of a head of state by a constitutional council on the advice of the Prime Minister. The council may advise the Prime Minister but, ultimately, must accept and act on advice to dismiss the president. The sanction for failure to act on advice within 14 days is instant dismissal of the members of the council. As I said in the chamber last week, the weakness of this model is that it is little more than a rubber stamp on the Prime Minister's decision to dismiss a president. As Professor George Winterton said today, it provides no protection whatsoever against a Prime Minister who dismisses a president who warns of an intention to exercise the reserve powers to, for example, dismiss a government.

It is for this reason that I believe the delegates should give serious consideration to the ARM's model. This model has now received support and endorsement from a broad cross-section of delegates at this convention. The ARM's model reproduces what McGarvie has identified as the strength of the existing arrangements. It provides for the removal of a president at any time by written notice signed by the Prime Minister. Dismissal of a president who acts without or contrary to advice under this model is prompt and effective. This satisfies the McGarvie principle.

However, the model goes further and requires the Prime Minister's action to be ratified within 30 days by the House of Representatives. This is an improvement upon the McGarvie model and, indeed, on existing arrangements. It submits the Prime Minister's decision to dismiss a president to scrutiny and questioning by the people's representatives. The Prime Minister will be required to account to the House of Representatives for his or her actions.

I would like to briefly refer to the method of dismissal proposed by the direct presidential election group. Its proposal provides for dismissal of a president by an absolute majority of the House of Representatives on the grounds of stated misbehaviour or incapacity or behaviour inconsistent with the terms of his or her appointment.

The problem with this model is that it does not satisfy the McGarvie principle- that is, dismissal of a head of state is not immediate but relies on a vote of the House of Representatives. If the president under this model retains the power to prorogue or adjourn parliament, the president could stop his or her own dismissal by preventing parliament from meeting. This is unlike the ARM model, which requires mere ratification of the Prime Minister's decision by the House of Representatives.

The ARM's model for removal of a president promotes prime ministerial government and the supremacy of parliament. Furthermore, it satisfies the McGarvie principle of providing for prompt and effective removal of a president who acts without or contrary to advice. But unlike the McGarvie model, which makes the Constitutional Council a mere puppet of the Prime Minister, the ARM's model puts the onus on the Prime Minister to account to the Australian people through their representatives. Delegates who wish to promote representative democracy in a new republican Constitution should closely examine the ARM's model.

Delegates, I urge you to look beyond the simplicity of the McGarvie model and ask to where it shifts the balance of power. My preference and that of the ARM is that a republican Constitution be designed to promote and enhance representative democracy. Delegates, I urge you to take the responsibility that we have been given by the Australian people very seriously over the next two days. We have the opportunity to define the terms on which we will live as a nation into the 21st century. Let's work together to get it right.

The Most Reverend PETER HOLLINGWORTH- I raise a point of order, Mr Deputy Chairman. The last speaker was referring to the ARM model. I would like some clarification as to whether it is the ARM model that you are talking about or the bipartisan proposal that I and others signed this morning. It is a very important point to me because I am not a declared republican. I have supported this important model that you described. It is a model for which we are seeking to get broad support right across the house. I think if it is continued to be described as-

DEPUTY CHAIRMAN- Archbishop, you are going beyond a point of order. You may be able to get away with it in the Senate, but you are really going beyond a point of order. I would interpret that what Ms Kirk was talking about was the historical evolution of the ARM model. I do not know that she was referring specifically to the composite motion of which you are a signatory. Do you want to clarify it?

The Most Reverend PETER HOLLINGWORTH- I would never let people get away with it in the Senate.

Ms KIRK- I apologise if there was any confusion, but I did say that the model which was originally put together by the ARM has now received broad support by a number of people, including yourself. It was just shorthand that I was using.

DEPUTY CHAIRMAN- This is the point in dispute as to whether it is exactly the model or a bipartisan model which suggests something different.

Ms KIRK- I was mainly focusing on the point of dismissal.

DEPUTY CHAIRMAN- I understand that. I think there has been enough clarification of it.

Mr GUNTER- In 1787 at another constitutional convention a leading delegate expressed his elitist view in the following way:

All communities divide themselves into the few and the many. The first are the rich and well born; the other the mass of the people.

He went on to say:

The people are turbulent and changing. They seldom judge or determine right. Give therefore to the first class a distinct permanent share in the government. They will check the unsteadiness of the second, and as they cannot receive any advantage by a change they therefore will ever maintain good government.

I disassociate myself completely from those sentiments. They are minimalist and very close to monarchist in their leanings. They deny ownership of the political process to the general public. They were the words of Alexander Hamilton at the US federal convention in June 1787.

I have heard the same views expressed by many delegates here, especially those who spend most of their professional lives inside the Parliamentary Triangle. Gareth Evans noted last week that he had taken part in every constitutional convention held since the 1970s. They were top-down exercises with little public resonance or support. I say to Gareth Evans- who, by the way, has now sat in every legislative chamber as an MP, Senator or delegate in both the old and the new Parliament House- that without public ownership in constitutional review it just will not happen.

To facilitate public ownership of the Constitution, working group I, which reported a few days ago, has suggested a useful start involving further public participation and education. I, along with others in working group I, recognise the limitations identified by Patrick O'Brien and Tim Costello among others but want to place more emphasis on the use of indicative plebiscites at federal elections at the very least to attempt to gain public consent for the constitutional change process.

This public demand for constitutional reform is advanced by the resolution working group I even though it is incomplete. The amendments moved by David Muir and Phil Cleary for a constitutional committee to be two-thirds elected improves the prospect of public ownership of the Constitution and a higher proportion of successful yes votes at constitutional referendums as a result. That necessarily implies referendum questions asking for change that the public wants to see and that parliament and the government will need to become resigned to accept. The Australian public does not want to treat the Parliamentary Triangle, or those inside it, like Lyndon Johnson's tent, but failure to consult them or to seek their consent must sorely tempt them to do so.

Proposals for continuing constitutional reform by overtly public mechanisms goes some way to helping to break the impasse between the Australian public and those inside the Parliamentary Triangle. With mechanisms such as this, constitutional change need not be feared. The public will, on balance, make a sensible and correct decision as often as or more often than any group chosen from among them.

This Convention has itself made great strides towards public constitutional ownership. This is one of its greatest strengths, whether it leads to a single model put to referendum against the status quo or to an indicative plebiscite between the status quo and three or four republican models, conducted on a preferential basis.

Be aware though that there are genuine reservations in the broader community regarding this Convention's processes and make-up. It would have been best, were justice to have been seen to have been done as well as justice actually having been done, that those holding offices whose powers are the subject of discussion here and whose powers may be affected as a result of momentum gained for specific models here asked themselves what the public would think if they voted to influence their own powers under the Constitution, except as normal voters of a referendum.

There is certainly an appearance of conflict which would raise eyebrows in local government, where legislation to deal with such potential ethical questions is in place. It is no wonder that eyebrows are raised when the subject is the Australian Constitution and the powers of those holding office under it. These problems increase the genuine- and even valid- perception that there is too much of a top down approach even to this partly elected Convention. It is only following dissipation of those genuine community concerns that a yes vote on any question becomes likely.

As things currently stand, many in the community are unsure about the weight to be given to the various arguments put by delegates over these two weeks. To all delegates regarding their proposed voting over the next two days, public participation and consent are not forthcoming instantly or under pressure. Hasten slowly or, if you cannot do that, hasten gently.

To those in the community who supported me to get a plebiscite or a referendum for a directly elected executive head of state, I say: that can be an agenda item for future constitutional committee work. Every idea for reform starts out as a minority idea. The job then, as in all constitutional matters, is to do your best to convince the Australian public and then to accept their verdict.

On the subject of constitutional renewal and the political health of the country, remember what French political philosopher Montesquieu said in 1748:

States are often more flourishing during the imperceptible shift from one constitution to another than they are under either constitution. At that time there is a noble rivalry between those who defend the declining constitution and those who put forward the one that prevails.

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Last updated: 21 October 2000