The Foundation for National Renewal   The Constitutional Convention of February 1998

Federal Election October 2004: Which Candidates Trust the People?

TRANSCRIPT OF PROCEEDINGS
Thursday, 12 February 1998
Page 12

Mr WADDY- I look to other delegates, who have seen us behave with complete and utter honour and integrity since we came here, to defend us from that scurrilous, outrageous and ridiculous attack. More than half the people of Australia in the polls published yesterday say they do not want change or do not want change except on certain conditions. The thought that we of the Australian constitutional monarchy have to design a republican constitution so that Professor Craven does not let his depression get the better of him strikes me as extremely sad.

Throughout all this discussion, the Constitution has worked extraordinarily well. Her Majesty the Queen of Australia has done what she has always done. The Governor-General has functioned as he has always functioned, and the country has functioned well. There is no crisis. Our friends have a crisis of symbolism, and that is what we have addressed for eight days.

I rise to say that this afternoon's debate should be constructive and to do that with honour again I think I ought to point out the things that I hope my learned friends and people of good will in this Convention ought to address this afternoon. As to the nomination procedure, I believe it to be a mirage. There is no reason why any nomination cannot be sent to the Prime Minister at the moment. It guarantees nothing. Those who are seeking some form of democratic input have it now and that particular procedure, in my view, guarantees nothing.

As the appointments procedure, it would be an election like we have never had, and the House of Representatives would never accept it. A Prime Minister would say, `There is a debate. I will nominate the candidate. You will say nothing; you will now vote.' We have never had that in 1,000 years of our inherited history. It would also deliver the mother of all mandates: the President would be given the complete and utter unanimity of all the representatives of the people, and I would like to see how that is going to be dealt with. When you add that to the term, one lower house would elect the president with the Senate and that would then take it into another term. So the parliament of the day would not necessarily be the same as the one previously elected.

As to the dismissal procedure, it is in my view extraordinary that a prime minister at any moment can sack the Governor-General in the way suggested. But not only that, the thought that the Prime Minister would then go back to the House he controlled and say, `Righto, guys, support me,' adds absolutely nothing. It ignores the Senate and, as any dispute is likely to be in the Senate than in the lower house, why ever would the people of Australia support the lower house over something like this? This is a constitutional amendment in a most extraordinary way destroying the power of the Senate.

As to the definition of the powers, reserve powers incorporated by reference is another mirage. Firstly, if you do write them down, they will become justiciable, that is, be able to be taken to court, which would be a disaster. If you do not write them down, you leave your president with the mother of all mandates, absolutely untrammelled. Incorporation by reference is, I think, the very worst of all suggestions because the conventions of a constitutional monarchy will not apply in a republic, no matter what you do with them. The conventions in a republic will be those developed under the republic. As Mr McGarvie said, they will have their own penalties and, unless those penalties are effective, who knows what. Finally, your president will not be the representative of a neutral monarch who stands above politics; your president will have his own conscience and his own duty- you try sending a euthanasia bill to Yarralumla.

Ms HEWITT- I will be brief. I am unaligned and, until today, I have been uncommitted. Some of us agonised over our vote because we were not locked in and we simply wanted to put the best option to the Australian people so that they could make their choice. My mandate in coming here was: `I Care about Australia's Future'- and I do. Whatever we decided was always going to be a compromise because, with 152 people sitting in here with 152 good ideas, we had to compromise.

None of the models is perfect, as far as I am concerned, but neither is the current system. The bipartisan model is the most acceptable model. It is not perfect. It is not 100 per cent what I wanted. I would prefer to see more people involvement and a direct election. However, I believe that we are going to put through a motion to try to get more people involvement. But it does have the criteria that the people who voted for me asked me to put forward, that is, it does have an Australian head of state. I am sorry, I do not like the word `president', but I bow to the greater good on that one. It has people involvement, and that is really important to me because, at the end of the day, the only involvement I can have is as a person from the suburbs. And, while it keeps politicians involved, it does have people in the driving seat. I think we can work to make it better. Fellow Australians, if we do not take the great leap into the future together and work together to make it better, why are we here?

Ms DELAHUNTY- Delegates, today we have faced, and do face, the moment of truth. It is the end of posturing and positioning. Now the vote continues. For many delegates who have listened with a sense of fairness and with an open mind and for many delegates who have argued with passion and conviction, the vote this morning was very painful. Let me urge those who do perhaps feel a little bruised by the voting not to stay out of the processes of this Convention. To those delegates who have found shelter under the McGarvie republican model, I urge you: leave the Claytons republic behind and look at the real republican option under two-thirds majority. To those republicans who passionately argued for and wanted so desperately a direct election and perhaps feel bruised and certainly disappointed by this morning's vote, I urge you not to stay out of this Convention. To our friends in the monarchists group- who I must say voted with great integrity this morning, and I thank them for that- who feel they can embrace the winds of change, I ask you this afternoon to look at the bipartisan model.

Mr RUXTON- Never!

Ms DELAHUNTY- Bruce, you are embalmed with your own snake oil, aren't you? Sorry. Why do I urge you to look at the bipartisan model? Lois O'Donoghue, who seconded the motion this morning, said she has carefully considered this model and it offers the best prospect for indigenous Australians and for the widest range of Australians to be part of the process and to be considered for president. I would add, it offers women of Australia the greatest opportunity to be part of the process and to be considered for president of Australia.

I believe this model will engage and, with the bipartisan support it has attracted, will win the support of Australians at a referendum. I remind you, delegates: this Convention is only one corner of the canvass. We must take a republican model to the people of Australia that they feel comfortable about voting yes for. This model, the two-thirds unity ticket model, has been described, I think affectionately, as a camel. We have heard the virtues of a camel are speed and stamina and that camels can always to be relied upon to be there at the end. Some people find it rather difficult to climb aboard a camel. Let me assure you delegates, our camel is kneeling. We are waiting to welcome you all comfortably aboard for a ride into history.

Major General W.B. JAMES- I would like, firstly, to say to Professor Craven, if he is here, that I did not come along to develop a republic; I came along to listen to the argument. That is what I have been doing and that is what I intend to continue to do. At this moment in time I am not persuaded, despite his outburst, that the model has been developed. But that does not mean it will not be developed sometime, some day, perhaps never.

Mary Delahunty asked us to watch and look and be part of the discussion groups. I can assure you the Australians for a Constitutional Monarchy people will continue to do that. We are looking at all the models and examining them and trying to come up with comments to show whether or not they are suitable. I am very concerned when I hear phrases such as Clare Thompson's saying, `Let's not worry about being safe. Let's give it a go.' I am very concerned about someone saying- and it has been said several times- `Seize the moment.' It is not an Australian Football League grand final in Melbourne where they are three points down at three-quarter time. This is something very different.

The whole question of a constitution is extremely serious. We in Australia and people of my age- I am still old enough to get into your group, Richard; I am not yet 79 and could have good going for a few years- are concerned that our country is cared for. To use those phrases that are thrown around selling Coca-Cola simply does not wash with me.

Let me talk about the direct presidential election and the concept which I can understand- the view that every one should have a chance to vote for the president. I suggest to you that it may be possible, it may indeed be fact, that the reason people are voting that way in the various polls- which, incidentally are always incorrect- the 52 per cent or whatever who are talking about a direct election, is that they want to have a say in an election, if there is to be one, of a new president. But more importantly, I suggest they are really saying, like kids who put graffiti on the wall, that they do not understand and, if there is any change to go on, they want to have a say. It is not anything to do with actual decisions. They want to be able to say no to something that they do not like.

The last thing I want to mention in the Turnbull republican camel model, as it is called, is the community committee that is going to appoint the new president. I am very concerned that this committee would be so big that it would take so long to produce an answer. We cannot be stuck, I believe, in a situation where we have weeks, even months perhaps, before this problem of appointing a new president could be resolved.

Mr RANN- This is difficult for me but something that I think is important to do. I came to this Convention essentially with five objectives. Those objectives were: to achieve a republic; to secure an Australian head of state; to support the sovereignty of people through direct election; to protect the position of the states and the balance of the federation; and to seek agreement for ongoing constitutional reform including future consideration of direct election should that fail at this convention.

I believe that it is vitally important that this Convention does not descend on its last day into gridlock. Gridlock would simply give the conservative forces the excuse to put ongoing constitutional reform into the too hard basket. We cannot afford to allow the momentum for the republic to stall because that would only give succour to the monarchists and those who oppose any constitutional change. Gridlock would simply give John Howard the excuse to say that we are not going to embrace any change for the future. It is certainly quite clear that, from the first day, the direct election model would not attract a majority vote at this Convention even though it has the support of the vast majority of Australians.

It is important that all of us know because all of us understand the procedures with which we are elected. This Convention in my view was set up to fail, but does have the chance to succeed. Therefore, I want, as someone who has supported the direct election model, to urge all supporters of an Australian republic and an Australian head of state to get behind a single clear republican vote tomorrow. In doing so, I want to say that it is important that this Convention does not embrace a winner take all approach, but also does not embrace those who have a loser take nothing approach. I do not intend to be a spoiler; I believe it is vitally important that this Convention makes history rather than ensure that the delegates become simply footnotes to failure in history. I strongly urge a commitment to ongoing reform and a commitment to one single republican united vote tomorrow.

Ms WITHEFORD- The people of the ACT elected me to this Convention as their No. 1 delegate to work towards achieving a legally and politically workable republican model that could be put back to the people at a referendum. During the campaign, and in the lead-up to this Convention, there were three clear messages that emerged from the people of the ACT and, I believe, the Australian community in general. There were three messages they sent with respect to the republican model that they wanted to come out of this Convention.

Firstly, there was the belief that a republic of Australia should retain the current separation of roles between the head of government and the head of state. The president or new head of state should retain the same powers and the same role as the Governor-General. Secondly, there was a belief that the new office of head of state should be above party politics, that it should be a source for unity not division, that the occupants should be widely respected and politically neutral, and that he or she should not be, nor be seen to be, subject to domination by any political party. Thirdly, there was the belief that the Australian people should have a say in selecting their head of state, that they should participate in and have a sense of ownership over the process of selection.

Fellow delegates, the bipartisan appointment model meets these three concerns. The president will have the same role and powers as the current Governor-General. This model maintains the unique checks and balances that have evolved in our political system. The bipartisanship inherent in this model ensures that our head of state will be above party politics. He or she will not be a politician. Thirdly, this model provides for an extensive and open public nomination process. The time has come to deliver the goods to the Australian people. I believe that this model will win at a referendum. It is legally and politically workable. I urge all delegates to come together and vote for this model.

CHAIRMAN- We are now at a stage in the proceedings where I think we should move on to consider the bipartisan appointment of the president model in its various categories. We will be looking at each of the sections of the model. When amendments are moved, we will have some debate on those amendments. I intend to proceed to a vote on each of the amendments by a show of hands, and we will be taking the vote later this afternoon on the basis of individuals voting in a recorded fashion.

If we do it in this way, I hope we will be able to get through the various amendments that have been received and deal with them in a reasonably consistent fashion and one that allows reasonable examination of each of the particular sections. Therefore, we will not be ringing the bells, for the benefit of the those delegates who are watching the proceedings on television, until immediately before that final vote.

So that there will be full attendance, the bells will be rung for three minutes before we get to the final vote on the process at the end of today, in accordance with the procedures that were set down in the resolutions of the Resolutions Group. You will note that that final resolution is that, `if Australia is to become a republic, this Convention recommends that the model adopted be'- in this instance- `the bipartisan appointment as amended'- if it is amended.

At this stage we will go through each of the individual components of the bipartisan appointment model. A number of amendments have been received. As I do not have all of them, I intend to call Ms Bishop as the mover of Amendment 2 on the sheet that I have. These may not necessarily be in the correct order because I do not have them all at this stage. I have asked for them all to be distributed. I intend to allow speakers three minutes, because we can then accommodate more speakers in the time available. If there is a need to extend that, we will consider it at the time.

A. Nomination Procedure

CHAIRMAN- I call Ms Bishop to move the amendment in her name with respect to the nomination procedure. It is required that there should be 10 delegates in support of that amendment. I have been handed a list of 10 delegates who support this amendment, so the amendment is valid. I call on Ms Bishop to move it.

Ms BISHOP- I move:

1) Delete Section A and insert in its place:

A. Nomination Procedure

The objective of the nomination process is to ensure that the Australian people are consulted as thoroughly as possible. The process of consultation shall involve the whole community, including:

* State and territory governments

* local government

* community organisations, and

* individual members of the public

all of whom should be encouraged to provide nominations.

This process for community consultation and evaluation of nominations is likely to evolve with experience and is best dealt with by ordinary legislation or parliamentary resolution.

2) Amend Section B in the following manner:

* by deleting the phrase: "Having taken into account the report of the Community Consultation Committee."

* by deleting the phrase: "which shall be done without debate."

3) Amend Section D in the following manner:

* by deleting the phrase "incorporated by reference"; and

* by inserting the phrase "and the conventions relating to their exercise should continue to exist."

I believe it is incumbent on delegates who believe in the referendum process to assist in crafting a model for change to be put to the Australian people at a referendum. They will decide whether Australia should become a republic and the proposed change needs to be spelled out so that there is a legitimate opportunity for them to determine this question.

There are aspects of each of the models that have received detailed consideration over the past nine days, and the proposed amendments seek to draw together the sentiments or principles underlying them. In short, I propose to delete Section A and insert another, which is set out on the sheet, whereby the nomination procedure would remain. The wider community will be invited to provide nominations. Of course, this can happen now, but it formalises the practice whereby the community is invited to put forward nominations.

There is one change in the list which reads `State and territory governments' rather than `parliaments'. Further, the nominations ought not be published. We should respect those who nominated and maintain confidentiality wherever possible. So the provision about the publication of the names is deleted.

As for the proposed community consultative committee, it is too prescriptive. To attempt to set up a detailed administration, prescribe its composition, but give no guidance on its task other than to report to the Prime Minister on the nominations received, seems to be an inappropriate exercise at this stage. So the nominations would go to the Prime Minister, who would, of course, consult. I seek to delete the reference to the committee, but to retain the words, which appear in the original: `This process for community consultation and evaluation of nominations is likely to evolve with experience and is best dealt with by ordinary legislation or parliamentary resolution.'

That enables us to see how the nomination process will work. I amend section B so that, after receiving nominations and consulting, as the Prime Minister does now, the Prime Minister presents the single nomination, seconded by the Leader of the Opposition and approved by a joint sitting of both houses. So the first line is taken out. I delete the words at the end of section B, `which shall be done without debate'. As attractive as it sounds, I find it contradictory to seek to stifle debate in the houses of parliament as a matter of principle.

The dismissal procedure in paragraph C remains as it is. Again, it is the Prime Minister who dismisses the president. The president cannot be restored to office, but the Prime Minister's action is presented to the House of Representatives. Finally, under `powers', I seek to delete the words `incorporated by reference' and insert the phrase `and the conventions relating to their exercise should continue to exist'.

CHAIRMAN- Your time has expired. I know how difficult it is.

Ms BISHOP- I have finished.

Dr DEAN- I second the amendment. Firstly, as a proxy can I say that, while a different view of the role of proxy is justifiable, I have taken the view that as a proxy I would not voice the views of the delegate when that delegate intends to express them himself- and, in particular, I would only express my views to the extent that they coincide with his. My speaking now is entirely in line with those parameters. It has been a frustrating role, but it has given me a unique opportunity to watch and evaluate objectively.

What is disturbing me is that, as a consequence of the bold tactics of the direct election lobby who put the blowtorch of current opinion polls in our collective bellies, the best thought out and clearest model which retains the best of the Westminster system and then improves it- which was signed by Neville Wran, Wendy Machin and Malcolm Turnbull on 10 February and which included the same nomination process as that of Archbishop Hollingworth's model- has been lost. This latest compromise has sown the seeds of politicisation and picked up the worst faults of the direct election model.

I will revisit some of what I believe are the most obvious problems with the direct election model. Given the nature of politics in Australia, it is inevitable that the direct election would be partly political. Consequently, rather than produce a non-political, neutral and unifying head of state which we now enjoy, it would do the exact opposite. Rather than reduce political intrigue, it would in fact add another layer to the existing system.

Those most suited to the job of neutral, apolitical, constitutional umpire of the standing of Sir Ninian Stephen and Sir Zelman Cowen would not participate. In short, you would drastically change the basic features of the Westminster system by losing two qualities of an Australian head of state you most seek in a system which combines the ceremonial and constitutional umpire roles- namely, that they are, firstly, bipartisan and unifying and, secondly, objectively chosen through a non-political process.

Now let us look at the effects of adding to the ARM model the nomination process which resulted in it being called the bipartisan model. Firstly, you can be assured that the Constitutional Committee will have Labor or Liberal sympathisers with cries, from minor parties and others, of rigging. Secondly, those who nominate or appear on a short list had better be ready for the glare of publicity, particularly if they are not chosen, and we would therefore lose people like Sir Ninian and Sir Zelman. Thirdly, there will be disagreement by commentators on the evaluation in light of the published criteria. Natural justice will have to be afforded, so welcome in the lawyers.

Fourth, groups not included in the council will challenge their exclusion. Fifth, the process of choosing the council- involving age, race and gender issues- will become issues of disagreement and consequently a source of disunity. Sixth, one or more of those on the short list will not be chosen and their organisations or lobby groups will cry foul.

CHAIRMAN- I am afraid your time has expired, Dr Dean. I should make it clear that we are going to deal with only A- that part of Julie Bishop's amendment which relates to the nomination procedure- because it becomes extraordinarily difficult if we start dealing with each of the other parts of the original proposal. I will have to call on you to speak again when we get to the appointment and election procedure. The trouble is that, if we do it otherwise, it becomes very hard for us to look at each of the amendments. So we are dealing with that part of the amendment proposed by Ms Bishop which relates to the nomination procedure. That part regarding section B and section D we will deal with when we come to that stage of the proceedings. Is there a speaker against this amendment before I call on the Premier of Western Australia?

Ms HEWITT- What this amendment seeks to do is to take away the very thing that makes it so appealing to people like me, and that is the people themselves. What the people I represent do not want is to have a politician selecting their head of state, which effectively is what this particular amendment does. The Community Constitutional Committee puts people back into the selection process. Take this away, put this amendment in and you wipe all that out. I would not vote for this model if that particular amendment went in.

Mr COURT- I came to this Convention prepared to have an open mind in relation to these issues. I have supported the McGarvie model today. Now that we are looking at this particular model that has got through to this stage, I support the amendments that have been put forward by Julie Bishop. I appreciate we are only discussing that part in section A. The reason I support her proposals here is that really I believe what has been put in this model is a sop. This sort of community consultation in this way sounds good. I just think in real terms, in practical terms, it would be pretty much a waste of time because there would be so much difficulty in having this so-called Community Constitutional Committee operate.

Like a number of people in this room, I have had to make a recommendation to a cabinet in relation to a Governor. In coming up with that recommendation, I went through a great deal of consultation myself. I work on the principle that if a Premier or a Prime Minister gets it wrong and puts up a person that is not going to do a good job and does not have broad community support, it is the person making the recommendation that is going to have to pay the political price.

In relation to nominations being published, I am also of the view that in any nomination process where people are asked whether they will take on a position, if it had to be done publicly, many of the most suitable candidates simply would not accept nomination. I know that an amendment has been put forward to take that particular section out. I support the package of amendments that was put forward by Julie Bishop. In relation to the amendment to A, I believe that it sounds good, looks good on paper. But in practice a Prime Minister is still going to have to make a decision and will have to take responsibility for that decision.

CHAIRMAN- Is there a speaker against the amendment?

Mr TURNBULL- Mr Chairman, I raise a point of order. There is another amendment moved by Mr Tannock and Senator Hill which has the support of most of the movers of the bipartisan model which deals with this nomination procedure section. It may be worth while having that moved and discussed prior to putting either Julie Bishop's amendment or Mr Tannock's amendment to the vote.

CHAIRMAN- It is my intention to call on Mr Tannock to foreshadow his amendment so that we have an idea of the nature of the difference. Mr Tannock, will you foreshadow your amendment, please?

Mr TANNOCK- The amendment moved by me and seconded by Senator Hill, you will see from the signatures, is supported by a fairly wide range of people here, including those who sponsored the original resolution to which Mr Turnbull referred. The purpose of our amendment, which we will be putting if Julie Bishop's amendment fails, is to try to achieve consensus among those people, particularly those who supported the McGarvie model this morning. We are looking for a form of words which is less prescriptive, simpler and yet-

Mr CLEARY- I raise a point of order. Have these amendments actually been accepted by the ARM, because there is no movement on the left of me here?

CHAIRMAN- They have all received the requisite 10-delegate endorsement before they are proposed. I have been advised in each instance that they are valid for consideration under the rules of debate we have accepted. Professor Tannock is outlining the difference between his amendment and Ms Bishop's amendment on that basis.

Professor TANNOCK- The same principles operate in the amended version as in the original one, namely, an openness of process and an involvement of a range of people from across the Australian community, including people from both sexes, from the indigenous community and from across the geography of Australia, having regard to the federalist principle. We do accept the need for confidentiality and sensitivity with regard to the publication of names. We also recognise the fact that there will be- if this amendment is carried through- greater focus on the Prime Minister being the recipient of the advice of the committee and the Prime Minister, following consultations with the Leader of the Opposition, having final responsibility for making the recommendation to parliament.

We would also point out that in moving this amendment, as Malcolm Turnbull pointed out in his presentation this morning, the detail of much of this will be dependent upon parliament when the constitutional amendment legislation goes before it. What we need to do this afternoon is to satisfy ourselves that the principles that are in the original legislation- the principles of consultation, inclusiveness and involvement of the community- are respected, but that we come up with a form of words that will be more reassuring and perhaps more satisfying to the great bulk of this Convention.

 

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Last updated: 21 October 2000