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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
Wednesday, 11 February 1998
Page 2

Mr GIFFORD- It is important to make sure that our facts are indeed facts. Unfortunately, this whole conference has been affected by people who have put forward what they say are the basics and which in fact are the opposite. I am therefore going to make a list, justifying it as we go through, of the basic points of this affair.

The first of these basics is the status of the Governor-General. We have been told time and time again that we cannot have a head of state unless we have a republic. Let us look and see what the real situation is. The Governor-General, for the whole length of time of the Commonwealth of Australia, has been the head of state. That is no fancy statement.

In 1871, the then Governor-General of Canada, in a public address, said that of course the Governor-General must be the head of state. When our Constitution was being drafted, one of those involved was Sir Robert Garran. He, agreeing with the Canadian Governor-General, along with a colleague was involved in writing a book which has stood the test of time- a book annotating all the sections of the Commonwealth Constitution. He stressed that the Governor-General was the head of state. That is a very important difference.

You can say that was only an academic. He was no academic. He was the first parliamentary draftsman for the Commonwealth of Australia. You may say that he was the only one. In the same year, 1901, there was another leading and highly regarded specialist in constitutional law and he took exactly the same view. In 1902, Professor Harrison Moore, another man with tremendous regard that has stood the test of time, took exactly the same view. And so it went on.

But you say that they are only academics. Let us look and see what happened in the Whitlam era. You will recall that in the Whitlam era the then Governor-General dismissed Whitlam as the Prime Minister. The Speaker of the lower house decided to get that rectified, as he regarded it. He contacted Buckingham Palace, asking that the Queen reinstate the position of Whitlam. What happened? The reply he received from the Queen by the Speaker I quote in full:

 

The only person competent to commission an Australian Prime Minister is the Governor-General. The Queen has no part in the decisions which the Governor-General must take in accordance with the Constitution.

 

In taking the view that has been expressed by the ARM, is there any way of overcoming that decision by the Queen? Of course there is not. The Queen has set out the position succinctly and correctly. It means that we have two heads of state, one being the Queen who is the symbolic head of state if she is needed, for example, in some major matter where she is invited to open a new building or something of that sort.

She is a real lady. There was a funny little incident that occurred when she came out here shortly after she had become Queen. The whole of the Melbourne Cricket Ground was covered by school children. I am a member of the MCC and, in those days, safety precautions were nil. As the Queen left, I went up onto the then canopy, stood there and focused my camera on the Queen's open car. It was only after I had the film processed that I knew what had happened. She started waving with one hand, laying the flowers on the seat with the other hand and kicked off both shoes. As I say, a real lady.

The second issue we have to look at is that the Governor-General has gone overseas since 1971 in his capacity as our head of state. Since 1971 he has been received as the head of state. Twenty years later, in 1991, the governors-general had made 27 visits to 20 different countries. Four years later, in 1996, the total had grown to 51 visits to 33 countries.

The next fact is that of the head of state being an Australian. It has been said time and again in this Convention that you have to be a republican if you are going to have heads of state who are Australians and who are proud of it. From 1965 to the present day, every one of the seven heads of state has been an Australian, and an Australian who is proud of being an Australian.

I now turn to the test of misleading. There has been gross misleading by the ARM in the material made available through the Electoral Commission. The fundamental basis for considering whether a statement is misleading means what it means to the general run of voters.

 

The Most Reverend PETER HOLLINGWORTH- Mr Chairman and delegates: in the interests of brevity and for those who have yet to speak, I will not give my prepared speech but I will make some points. Some of us have come to this historic convention with an open mind, fully understanding the complexity of the issues before us. We hold personal views as to whether Australia should become a republic at law in the fullest sense of the word or whether we should remain as we are: a constitutional monarchy under the sovereign Queen of Australia.

Personally speaking, my head inclines me one way and my heart another. That is the problem for many of us of my generation. But the time for personal feelings is over. In this matter, we as delegates have to address the national interests and the future. We have heard some marvellous speeches in this chamber, especially from our young people. I do not want to sound patronising, but I think the quality has been quite outstanding and it augurs very well for our future.

I listened very closely to what Moira O'Brien from the Northern Territory said yesterday: head first and then heart. I think that is the right sequence. We have listened closely to the speeches day after day, knowing that at some stage we would have to make some conscious decisions. It is clear that we cannot leave this Convention with a raft of confusing options to be put before a plebiscite. That is simply not possible. I think that would be to fail the Australian people. We have to do as the Prime Minister said: namely, to put before a referendum two choices- the present set of arrangements and a model of a republic that the voters could understand.

We may not shrink from that task, any of us. I would hope that, from here onwards, the time of arguing from fixed positions and its spoiling tactics, however humorous they may be, is over and for the vast bulk of delegates in the centre the time of creative compromise has begun. I am reminded of something very wise the Queen once said. Someone asked a question 25 years ago, `What is the point of having a Crown, a monarchy?' And she replied, `Simply because it is there. If you take it away, you have to invent something else. Remove it and you create a vacuum in the existing power arrangements.' That is precisely the point. In such circumstances where there is a vacuum, something else or someone else will move to fill the gap. That surely has been the task that has burdened us over these last seven days- trying to find a way of filling what would be a vacuum.

I do not want to talk about the various models; I will get an opportunity to do that later. I do want to address one small matter which is particularly to try to get hold of the question of what people are asking for when they say they want a popularly elected president. This was a matter which exercised most of our time as we met as a group of non-aligned delegates last night. It is my view, from what I have heard from the speeches, that the majority of delegates will not accept the proposal for a directly elected president for very good practical reasons- not reasons of principle, but reasons of the practical outcomes, unintended as many of them would be.

I believe that we must have some serious debate. We have a responsibility to the Australian people, if that is the way the vote goes, to demonstrate why you cannot graft a foreign model of a popularly elected president on top of our existing structures. I will get a chance to say something more about that later and I will pass on. The other thing that I think I am bound to mention is that there remains in many of the models something of a problem whereby the names and the good reputations of many eminent citizens of Australia may have to be submitted for public scrutiny before a joint sitting of both houses of parliament. I am quite sure that in no way would some of the best candidates allow that to happen, nor could they. Those are some of the issues that I think we have to come to terms with when we really start to get down to the debate.

But I think one of the great issues that I want to come back to in relation to the popularly elected head of state model is to try to clarify what it is that is so important to people. I know that there are negative things about politicians as the representatives of the people. Most of those criticisms are undeserved. I know too that there is a kind of popular culture out there, but we cannot be driven by popular culture. We are dealing with affairs of state; with a complex machinery of government. I know that there is a great sense of idealism out there, and I share a great deal of it. I have a deep sympathy for many of the views that people like Dr O'Shane, Mr Cleary, Ms Rayner, Professor O'Brien and many others have expressed.

We would not disagree with any of them, in the main. But the big question is, `Can you entrench these things in tablets of stone?' Should you try to build them into preambles and constitutions and into the methods by which government operates? With greatest respect, Sir, I think one of the problems that we are confronted with is what is sometimes called HPU, humanist positivist utopianism. I said before that we have got to put our heads before our hearts. That is what we have to do- not to dismiss matters of the heart, but to make sure we make clear distinctions and what we recommend to put before the Australian people is actually something that would work over the long term.

I would make a plea to my friends amongst the populists, with whom I have a great deal of sympathy. I too believe in some of the noble ideals of respublica, and all of us believe in some of the great ideals of a civil society. I would say in passing that one of the great things about this House of Parliament and the fact that the Centenary of Federation Council now has its headquarters here is that we have a marvellous venue in which to pursue much of those great debates which should be part of national life. But many of those great philosophical ideas that have come to us over 2,000 years are not ideas that you can simply graft on to our existing Constitution and political arrangements. In many ways they should not be; in many ways they are part of our discourse that we share day by day.

I take very seriously what the last two Boyer lecturers have said in their outstanding speeches. I am thankful for the great contribution they have made to the debate. But this is an issue of debate and discourse. It is not something that you should try to ram into and graft on to constitutional arrangements. Such things will probably come unstuck.

In drawing all this to a close, I simply want to say this: my reading of things is that the Australian people, generally speaking, will buy some change- perhaps not a lot of change. They want to be confident that our well-known and familiar symbols are in place. They want to be sure that our way of life is preserved. Above all, they want to be convinced that our democratic institutions will not be undermined. But they can accept change if it is done in a sensible and orderly fashion.

In conclusion, I think we ought to take on board the fact that the business of constitutional change and change in our political structures is, indeed, a hard thing to achieve. Those who are watching should take that matter on board. We would all like an ideal state of affairs. We would all like an ideal nation. We would all like to have an ideal head of state. I suspect one of the things that the populists have in their mind is a kind of mix between Mary Robinson, the late Princess Diana, the late Mother Teresa, Nelson Mandela and a few other people.

 

CHAIRMAN- Unfortunately, like some of them, your time has now expired.

 

The Most Reverend PETER HOLLINGWORTH- My concluding remark, Sir, is that the Archangel Gabriel is not normally available for election except in times of dire need and crisis.

 

Mr KENNETT- I have been listening to the debate with great interest and obviously respect the views expressed but, in the end, this Convention should meet two critical objectives: firstly, any republic should be of a nature that will mould a more cohesive Australian society; and, secondly, any republican format should enhance Australia's status internationally. The fundamental question, which will be addressed by the public of this country, is whether Australians think we are at that point in our history and maturity as a nation at which we should break our last formal ties with Britain.

I think, as Reverend Hollingworth has just said, most Australians recognise the inevitability of severing Australia's constitutional links with the UK, but only if a better system can be identified. The Convention, therefore, is charged with agreeing on a republican model which is able to meet one basic test: that it is better than the system which has served this country so well for more than 200 years. This is a judgment which will be made by all Australians through a referendum. If we are going to make the change, it should be done not in anger or enmity; rather, it must be with honour and deep gratitude for what the connection to the monarchy has meant throughout the period of Australian settlement in terms of the basic institutions of Australian democracy.

We should be conscious that the time has come when Australia not only should be independent, which it has long been, but should be seen nationally to be independent without qualification or limitation or need for explanation. There is no justifiable proposal that we abandon our system of responsible government within a parliamentary democracy. In respect of our constitutional position, I would remind you of what one of our fathers of Federation, Alfred Deakin, said at the outset of the 20th century:

 

The Commonwealth Constitution will begin to take effect on 1 January 1901 but everything which could make the union it establishes more than a mere piece of political carpentry will remain to be accomplished afterwards.

 

That is the essence of the work of this Convention. However, the Constitution is not a loose-leaf folder to which we can add or subtract like the pages of a recipe book. As the noted United States Supreme Court Judge Oliver Wendell Holmes once said, a Constitution is meant to last. The Australian version of the Westminster system has served our nation and each of the states and territories extremely well and should not and need not be abandoned for Australia to become a republic. What the community wants if there is to be change is one which preserves the elements of the current system with one change which appears minor but is not in reality: a change in the position of the head of state. It is a big task to bring change into effect without dramatically altering the balance of our special brand of democracy or, more importantly, undermining it.

The elements of the existing system which must be preserved include the existing balance of powers between the arms of government and in particular between the head of government and the head of state; the role and powers of the head of state to be a neutral power acting in the same way as the present Governor-General and Governors and with the same powers and restrictions as currently apply; and, finally, filling the office with high calibre Australians.

The answer, not perfect but the best available, must be one based on the system we know to operate effectively. It is to confer on the president, without defining them, the powers at present inherent in the Governor-General. The extent of these powers and the fact they cannot be effectively codified makes it desirable that the president retains the present degree of flexibility which is based upon convention. For these reasons, the popular election of the president is, to me, not an acceptable solution. The direct election model would impose a presidential system over the top of a Westminster system. Without significant change you can have one or the other but I do not believe you can have both.

Further, a partisan process, which an election must be, will not produce a neutral power- the necessary impartial umpire who is able to serve with unquestionable dignity- and it would require and produce in fact the reverse. This is neither required nor desirable in any change and, as Reverend Hollingworth said, it would ensure that those who disliked politics, who might best be suited to the task of constitutional umpire, would refuse nomination. These are precisely the things we do not want.

In essence, therefore, I am here to show my support for a model that advocates the election of an Australian president by a two-thirds majority of joint houses of the Commonwealth parliament. An election structured in this way delivers both a republic and, importantly, an improvement on the present system. It requires the Prime Minister and the opposition leader to agree on the appointment and in this way would blow a refreshing wind of consent through the corridors of our Westminster system. This gives the people, through their representatives on both sides of parliament, input into the choice and all but guarantees a bipartisan president. It leaves the Westminster system of government in better shape rather than eroded.

However, the most difficult element is the means of dismissal. In this, along with others, I disagree with the proposal that a two-thirds majority of the combined houses should be required, because it will make it virtually impossible for the head of state to be dismissed without potentially an unseemly political brawl. I also, with respect, reject the proposition of the McGarvie model that the selection of the head of state and the question of dismissal, should it arise, be on the advice of a council of retired governors and judges. Such a model attempts to replicate a monarchist system in a republican model and will give us something worse than the present system.

Firstly, non-elected establishment figures with past histories in Australia and no powers cannot replicate an absent neutral monarch. Secondly, a council can refuse to consent by resigning, a monarch invariably consents and in real terms cannot resign. Also, I firmly believe that this is not a time for hybrid solutions but a time for a bold, simple Australian solution. We should not set out to be minimalist. This is not an Australian trait. I therefore support the notion that dismissal should be effected by a majority vote of the House of Representatives on the motion of the Prime Minister.

The potential problems that this presents in relation to what happens if parliament is not sitting at the time and the possibility that a president may attempt to frustrate the process by adjourning or proroguing parliament can be answered easily with technical amendments. The mechanism for the dismissal of a president in this way becomes subject to the rigours of the democratic process of the parliament and of this country. It is a public process and is able to come under public scrutiny. Any Prime Minister in government that did act to remove a president would eventually be accountable at the next election- in short, the supreme body, the people of Australia.

To clarify a number of other matters from my perspective, I agree firstly that the support of all states is necessary for Australia to become a republic. This adopts the process which applies under the Australia Act and would require the states to agree to support the change. Secondly, if change occurs federally, the states should follow suit and, for my part, I would encourage Victoria to alter its constitutional arrangements should the Commonwealth become a republic. Thirdly, in relation to titles, I support the retention of the Commonwealth of Australia as our national title and I believe that in a republic the title of president is most appropriate for the head of the state of the Commonwealth.

May I voice one word of warning: there are some, including the editors of the Australian this morning, who insist that this Convention should make its decision in accordance with current opinion polls. Today's polls are rarely the same as tomorrow's. Each member of this Convention has a duty to make an honest, reasoned and independent decision based on what is in the best long-term interests of the Australian people. The polls do not relieve us of that responsibility. That is the price of leadership and that is the task of this Convention.

I also support the concluding comments by Delegate Handshin today when she clearly addressed our minds to the fact that should the direct election model not be the favoured choice of this Convention, we should all urge those who advocate it, nevertheless, to provide clear support for a final resolution which can be put to the Australian people.

Finally, this Convention must arrive at a compromise based on common sense in determining the republican model that is put to a vote of Australians. Not to do so would fail the Australian public and any test of leadership applied to this Convention and leave the matter unresolved when we arrive at 1 January 2001.

CHAIRMAN- As the official photograph the other day was totally unsatisfactory, arrangements are being made with the ABC to take still photographs that will show delegates seated in their places. One of the official ABC photographers is about to put that in place. I ask delegates if they do not mind staying in their places while we get it set up. It will enable people to be photographed for the purpose of the official photograph of this Convention. I am sorry, but the other day the photograph of people standing in the centre was quite unsatisfactory. It seemed to me it was a pity not to do it in a way that could be recorded for posterity. After this process is concluded, we will move to the presentation of the reports of the working groups on the issues for today. They will be Working Groups M, N, O and P.

 

The official photograph was then taken.

 

CHAIRMAN- Before we proceed to the working group reports, I have received a proxy nominating Mr Clive Lonsdale in the event that Mr Neville Bonner may not be able to be with us all day. We will proceed first to the report from Working Group M and Professor George Winterton. We are going to proceed to each of the reports before we proceed to the discussion on the reports.

WORKING GROUP M

Each State should be able to make individual decisions about retaining their links

REPORT

 

Each State should be able to make individual decisions about retaining their links

 

Professor WINTERTON- Perhaps I can say one or two words as background. The legal position concerning the establishment of a republican constitution in Australia and the states can be rather complicated and there are disagreements among constitutional lawyers and others. Maybe I could just summarise in essence. I hope this Convention does not try to resolve these legal problems. I am sure they could, but there would be disagreement here. I think it might be helpful if I just state fairly and briefly what some of those are. It might assist if I basically distinguish the legal issues involved in the establishment of a republic at the Commonwealth level and the state level.

In order to establish a republic at the Commonwealth level, one would certainly have to amend the Commonwealth Constitution, and that would require a section 128 amendment. There is no problem in that respect. Most people, I think, would say that it is not essential to amend the covering clauses in the preamble, but certainly it would be cosmetically, at least, desirable. We have certainly had motions advocating amendment of the preamble in order to update it, at least. It would look strange to have a Constitution which abolished the Crown and yet still referred to the Queen's successors.

In order to amend the covering clauses in the preamble, because section 128 refers to amendment of this Constitution and they are not part of this Constitution, the prevailing view- which I personally do not accept, but it is certainly the prevailing view- is that it would require the procedure laid down in section 15 of the Australia Acts. There are two Australia Acts: a Commonwealth act and a British act. I think the British act is really the relevant one. It provides for two methods by which this could be achieved.

Although I hesitate to say so, it is fair to say that the second one is not universally conceded. The one that is universally conceded is laid down in section 15(1) of the Australia Act. That would require all states and the Commonwealth parliament to pass legislation. That would, of course, require the consent of all the states. Section 15(3) provides an alternative source, but I have to concede that this is not universally conceded, although certainly many people, including myself, take this view. That would require a section 128 referendum- which could be the referendum bringing in the republic- and Commonwealth legislation pursuant to it.

In short, without getting too technical, there is a view that the consent of the states would practically be required even to bring a republic purely at the Commonwealth level- although, as I say, that is not my personal view, in being fair in these things. Those who maintain that you need to amend or you should amend the preamble in the covering clauses- and, certainly, I agree one should- would say section 15(1) is the clear way to do it, and that would require the consent of all the states, legislation from all the states, plus legislation from the Commonwealth.

If one moves to changing from a monarchy to a republic at the state level, there are two sets of provisions that need to be dealt with. First of all, there are the state constitutions or constitution acts. Many of these- there is some debate among lawyers as to how many- entrench the Crown at the state level. There is no doubt that Queensland and Western Australia do and would require referendum. Victoria certainly does by requiring an absolute majority of both houses of the parliament. It is arguable that New South Wales and South Australia also do. About the only one that seems not to, as a matter of law, is Tasmania, although I realise that, politically, it is probable that all the state governments would want a referendum on the subject.

The provisions in the state constitutions can be changed by the state parliaments, but they have to follow the procedure laid down by entrenchment- either absolute majority or referendum and, in some cases, both. Then there is section 7(1) of the Australia Act. For those of you not familiar with it in detail, section 7(1) says that Her Majesty's representative in each state shall be the Governor. Some would say that entrenches Her Majesty the Queen in the Constitution of the state; others- I include myself- would say, `It doesn't do that. It simply says as long as there is the Queen, her representative is the Governor, but it does not entrench the Queen.'

Certainly there is uncertainty, and I think one could say that most people would agree that you do not want uncertainty in the establishment of something as significant as a republic. It would look ridiculous if things were declared unconstitutional by the High Court later on. Therefore, one needs to amend section 7 of the Australia Act. That, as I remind you, has those two alternative methods- section 15(1), which requires all seven parliaments, or section 15(3), the referendum plus the Commonwealth act but not universally conceded.

With that background, perhaps I can focus on the report of Working Group M. Working Group M consisted of several state political leaders, some opposition leaders, a Deputy Premier and Dame Roma Mitchell. It achieved unanimity, I think I can say, in all these propositions.

The basic decision made by the committee was that the essential principle must be that the advent of a republic at the Commonwealth level should have no effect on state autonomy. The structure, the arrangements concerning the state executive, the appointment or the removal of any state governor, whether states retain governors or not and what their powers are, should all be matters for the state.

I will emphasise a matter that is sometimes raised in error rather than in any other way. It is somewhat inaccurate to see the federal president replacing the Queen. In the view of this group- and in view of most republicans- there is no intention that the president would replace the Queen for the purpose of appointing and removing state governors. The view is that the states would remain completely autonomous, the removal or the appointment of the state governor would be determined purely by the states, by whatever method they chose- whether they chose the McGarvie model, the two-thirds model, the direct election model or some other model. It should be purely up to them. We believe this Convention should not express any opinion on that. That is purely up to the states.

We also took the view that the advent of a Commonwealth republic should occur independently of the states and that it should not be necessary for all the states and the Commonwealth to become a republic at the same time. This, I realise, is not uncontroversial, but I do emphasise that that group was unanimous in that view. It took the view that it was unrealistic to think this would happen.

Theoretically, if the Commonwealth moves to a republic and the states move to a republic or not, in their own time- presumably retaining links with the Queen if she were willing to allow that- it is possible that you could end up with a hybrid. It would not be unique. Malaysia has a hybrid, Imperial Germany had a hybrid. It would also appear incongruous.

But let me remind you that there have been incongruities in the past. I do not think anyone here who has studied these matters would disagree with the proposition that the monarch became monarch of Australia if not in 1939 when the Statute of Westminster was effectively adopted, or adopted in 1942 retrospectively, then certainly in 1953 when the Royal Style and Titles Act was passed.

So we had a Queen of Australia at least from 1953, if not 1939. Yet it was only in 1986 that the head of state of the states ceased to be the Queen of the United Kingdom. So we did have that incongruity of a different theoretical head of state- same person of course. Between 1939 and 1986 or 1953 and 1986, the Queen of the United Kingdom was head of state of the states and the Queen of Australia was head of state of the Commonwealth. Yet we all went about our business. We grew up and went to school and all the rest. It did not seem to have a deleterious effect on our lives.

So, in short, this group advocated that the movement of the Commonwealth to a republic should have no direct effect on the states, that they should make their own decisions. State autonomy was the dominant principle. We did not think the hybrid was likely to eventuate as a matter of practical reality. I hope I am not misrepresenting the group by saying that as a theoretical possibility we conceded it could occur and it did not cause us excessive trouble.

The last point is that people sometimes ask, in respect of this hybrid, who would the governor of the state represent if the state, for example, chose to retain links with the Crown. The answer is: in theory, the Queen of that state but, in reality, the people of the state. The reality is now that the Governor-General really represents the Australian people and the Governor of the states the Australian states. So, in reality, although there might be this legal quirk, we took the view that this would have no practical significance at all.

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