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 13

CHAIRMAN- As I explained to Mr Cleary and let me explain again, for each of those amendments that are being discussed I have the names of 10 delegates who support them and the amendments are therefore valid for consideration. Do I have a speaker against? We have one amendment before us. Professor Tannock has foreshadowed another. I need a speaker against.

Professor PATRICK O'BRIEN- I speak against the amendment for the reasons that I have put forward on numerous occasions. If somebody is seeking the highest office in the land which has one of the greatest responsibilities of representing the nation, that person should be above any form of suspicion about anything. Therefore, open inspection is necessary. I think it is an insult to the Australian people to say that an eminent person, such as Ninian Stephen or whoever it is, would not apply for the office. That is fine, but it is intolerable that you have a secret process.

Secondly, this is typical of what has been going on with the people on my left. To get a certain body of votes they move for a more open nomination process. They have achieved that goal, but now they totally backflip to the previous position, so there are no principles involved in this. It is simply the principle of backflip to buy off votes. Also, it is morally wrong not to insist that the moral character or any other aspect of the life of a person who seeks the highest office in the land and must represent me and every other citizen is not checked out. That is the price one has to pay if one wants to enter the public eye. I think it is appalling that these people could backtrack, and I think it demonstrates further to the Australian people the opportunism and cynicism that will bring this whole process to a halt.

CHAIRMAN- I need a speaker in favour of Ms Julie Bishop's proposal.

Mr BARTLETT- With great respect to Professor O'Brien, to me this is all about principle. If we take Paddy's argument to the nth degree, we may as well go the whole hog and put the nomination forms in TV Week for the head of state. This seeks to actually include the people at the very first process, at the grassroots process. It seeks merely to extract a committee. I think the people of Australia need another committee like the proverbial hole in the head.

If some of these shenanigans, goings-on and general discussions we have seen this week with various groups, subgroups, working groups and the like are anything to go by, I would hate to think that the person who was representing me in the highest office in the land had to put up with the same sort of debacle at various times when the political pressure or the heat became too much; that certain members of that committee would ensure that the person we got did not have the integrity that that office demands. That is what this is all about- integrity.

I support Delegate Bishop in her attempt to maintain the integrity, but keep the process open and accountable to the people. If you look at those first four categories, there is ample provision for the people in various forms under various organisations or, indeed, the people themselves to have input. I would urge you to think very carefully about including another committee in a process so important as the head of state.

CHAIRMAN- Thank you very much. I understand Senator Robert Hill is supporting the foreshadowed amendment. I therefore call him as a person opposed to the amendment now before us.

Senator HILL- Thank you, Mr Chairman. Firstly, that is correct: I prefer the Tannock alternative to the Bishop alternative, but I have to say that I think that the model that you have before you does need to be improved in relation to the nomination procedure. The more that one looks at it, the more the deficiencies are evident. I think there is a widespread view that the nomination should not be published, that that is inappropriate.

Secondly, it is really a little demeaning to have the committee develop a short list that would require ruling prospective candidates, and probably very suitable candidates, out to get it down to a short list. That does not seem to me to be an appropriate role for this committee.

Thirdly, the reference to representatives of peak organisations might be more appropriately found in an industrial relations manual rather than in the charter of a committee of this type. Certainly, there should be community representation but `peak organisations' raises all sorts of issues as to appropriateness.

I think that the nomination procedure which incorporates the consultation model should be improved. I put to you that the Tannock amendment does that in a way that is much more elegant and much more appropriate. It provides that there will be a committee- that is where the distinction is between Tannock and Bishop. Tannock retains a committee, but it provides that the role of the committee will be simply to report to the Prime Minister; not to delete nominations but to give its advice to the Prime Minister, which the Prime Minister might take into account. It is to be of a workable size. It is to incorporate both parliamentary and non-parliamentary, and in the non-parliamentary efforts are to be made to ensure that there is a reasonable balance reflecting federalism, gender and- I think it is going to be suggested- cultural diversity, rather than racial diversity.

The Bishop model deletes the committee, and that is the issue: is the committee itself is so unworkable? I suggest that a committee can be workable. It might not achieve everything that some would like to see it achieve, nevertheless, it is a vehicle through which there can be an extra community contribution to this process. I think that that would be quite a healthy initiative within Australia's constitutional structures and, as has been expressed in the foreshadowed Tannock amendment, I put it to you that it is very workable and would provide for a very significant and worthwhile improvement. Therefore, I prefer the Tannock amendment. If that gets on and the Bishop one is defeated, I will support that.

CHAIRMAN- Are you in favour of the Bishop amendment, Mr Turnbull?

Mr TURNBULL- I am against Bishop and in favour of Tannock.

CHAIRMAN- Right. Is there a speaker in favour of the Bishop amendment?

Mr PETER COSTELLO- I would like to speak in favour of the Bishop amendment and in favour of Richard Court's argument. I think the objective of all this is to ensure that there is community consultation, and there could be no better community consultation than an open period of nominations. Conceivably, you could have 18 million nominations. That would be extreme community participation.

What concerns me about a committee, however, is that once you establish a committee two things follow. One is that it makes it very hard for people serving in sensitive positions to allow their names to go forward. Let us take a High Court judge. A High Court judge's name goes forward. There is a committee that looks at it. It gets into the public domain. There will be various interest groups on that committee. It will be known that the government, which is a litigant in front of the High Court, is considering this judge's position. That judge is under discussion. It may well be said that a conflict of interest is seen to arise. It would be difficult for a person in that position to allow their name to go forward.

Secondly, in relation to the committee, it will inevitably become known who the committee has recommended. The proponents of a committee system may say, `The Prime Minister will come to a different nomination,' but it will inevitably be known and it will add a controversy. It will especially add a controversy where you are trying to get a two-thirds majority in the parliament and the Leader of the Opposition may be well entitled to say, `Why should I back any nominee that didn't enjoy the support of the committee?' What I see that doing is adding to controversy rather than getting the bipartisanship that is the aim of this particular model.

As I understand it, it is not proposed that this amendment form part of the Constitution itself but rather that it be the subject of legislation and discussion. I do not think we ought to pin down at this stage what is an unnecessary flourish in relation to this model and, what is more, one which could lead to unintended consequences. If you think back over the Governor-Generals that have been appointed in Australia since we have had Australians appointed to the position, this model would knock out all the ex-politicians under the two-thirds rule and with a committee would probably knock out any active or serving High Court judge from being in a position to allow their nomination to go forward. I do not think that it is necessary to do that nor do I think it will lead to better outcomes. I think Julie Bishop's idea is eminently sensible.

CHAIRMAN- I call Mr Malcolm Turnbull.

Mr PETER COSTELLO- How about a conscience vote, Malcolm? You could announce it today and give effect to it tomorrow.

Mr TURNBULL- Mr Costello has called for an ARM conscience vote, but there is an assumption there.

Mr PETER COSTELLO- Yes, it presupposes that you have a conscience!

Mr TURNBULL- Yes, that is right. Mr Chairman, I speak against Julie Bishop's motion because I am in favour of Peter Tannock's motion. Let me make a couple of points. There are plenty of committees in this country that act with complete discretion and confidence. You only have to look at the body that considers Australian honours. It acts with complete confidence and discretion. I have never heard of a leak coming out of that organisation. If there is concern about confidentiality, and I foreshadow this to see if there is any interest in this, you could add a sentence which says:

The committee should not disclose any nomination other than with the consent of the nominee.

So you impose confidentiality on that. The other point that Mr Costello raised about judges could equally apply to anyone in a job. He could be a chief executive of a large company or the vice-chancellor of a university. You may not necessarily want to have it known that you are looking at another position, but that problem arises all the time. Hence, as long as the committee is small, as long as it is workable and as long as its members act with discretion, then there should be no concern.

The alternative is to have this matter dealt with by several members of the Public Service. I am sure they would perform that job very creditably, but why do we assume they would act with any less discretion than members of a committee so constituted? I would say with great respect to Mr Costello and even greater respect to Ms Bishop, only because she is a lady of course, that the fundamental point is that I believe we are only making a recommendation to parliament. This is not going into the Constitution. This is simply a recommendation. We are setting out principles. I think they are worthy of parliament to take note of. No doubt they will be implemented in different ways at different times, but I believe that to delete reference to this altogether leaves a gap in the consultation process that should not be left in this model.

Mr COWAN- I have found in my experience that the moment anyone prefaces a remark with the term `with the greatest of respect', it generally demonstrates that they have none at all- certainly for the argument, if not for the person. There are two differences between the amendment before the Convention and the foreshadowed amendment. The first is that, in reference to the first group that might make a nomination, we say, `the state and territory governments', not `parliaments'. I think you would understand the reason for that- in that there has been some general consensus, even through discussion, that there has to be a degree of confidentiality in respect of the nominations. In this particular sense, I suppose you could take a different point of view and say, `We'll have a very public process for the parliaments in the nomination but, if you want to retain confidentiality, you can go to one of the other groups.' That is a nonsense. You need to have some consistency.

Of course, the most critical of the two issues is the one in respect of the process of whether you do or do not have a committee. To all intents and purposes, by having consultation processes, you force the hand of the Prime Minister so he has to establish a committee and I think most people would accept that. I ask the delegates to give support to the amendment that is currently before the Convention.

CHAIRMAN- The Clerk has drawn my attention to the fact that Senator Natasha Stott Despoja also has a foreshadowed amendment. While the two that we are considering require the deletion of A, there is a variation and I think it might be wise for delegates to understand that other alternative before they are actually called to vote on that amendment. In those circumstances, I intend to ask Senator Stott Despoja to identify the purpose of her further amendment. We will not be dealing with it; it is just to foreshadow it. Before I do, Jennie George wants to raise a matter.

Ms GEORGE- I just seek your guidance, Mr Chairman. I had previously an amendment circulated in the name of Kilgariff that referred to the nominations and suggested the deletion of all nominations. I think it would be advisable for Mr Kilgariff to advance the arguments in support of his amendment while we are considering-

CHAIRMAN- I think it is wise for each of these proposed amendments to have some argument before us before we actually vote on this one. That is what I am doing at the moment

Ms GEORGE- This will come at some stage?

CHAIRMAN- That will come directly. I will ask Senator Stott Despoja to foreshadow her amendment and then I intend to call on Mr Kilgariff to do his. Then we will have the proposed amendments at least in mind, but we will only be considering this one. I call Senator Stott Despoja to foreshadow her amendment, of which you have notice in your bundles.

Senator STOTT DESPOJA- In fact, I have two amendments which essentially serve the same purpose. One is to the original bipartisan document. As I mentioned in my comments this morning, it is merely an addition to the nomination process. So when the committee provides a short-list of candidates for consideration to the Prime Minister and the Leader of the Opposition, I have simply inserted, `and Leaders of parties with party status'- that is currently more than five members in the federal parliament.

Given that Professor Tannock seeks to amend this particular section, I have also put forward an amendment that serves the same purpose. When he says that the committee should be inclusive of parliament and community representatives, I have simply put in brackets `including representatives of all parties with party status in the Commonwealth Parliament'. So the intent is to ensure that there is cross-party representation in the consideration of those nominations.

CHAIRMAN- Before I call on Mr Kilgariff to explain his foreshadowed amendment, I understand there was a further amendment of which notice has been received from Delegate Mary Kelly. I just inform Ms Kelly that she will need to have 10 delegates in support of her amendment before it can be considered. Mr Kilgariff, will you foreshadow the purpose of your amendment before we go back to vote on the one before us?

Mr KILGARIFF- My amendment really would only come into effect if the amendment by Julie Bishop and Senator Hill was subsequently lost. The purpose of my amendment is this: quite a few people that we would like to see as President, and maybe even some in this place, probably would not like to put their name forward if the list was to be published because in effect they would actually be putting themselves up for a public election.

CHAIRMAN- We are now considering the amendment proposed by Ms Julie Bishop, seconded by Dr Robert Dean, and with the requisite number of delegates. To it there are a number of other foreshadowed amendments to which we will return in due course. The question we now need to consider is that amendment proposed by Ms Julie Bishop. As indicated before, we will take this count on a show of hands. If it is defeated, we will then consider Professor Tannock's amendment. Can I have tellers in place so we can take a count on a show of hands.

Mr CLEARY- On a point of clarification: I am not trying to be overly technical but it is a bit hard to grasp what the nature of the amendment is when you try to go from the paper to the screen. It is important to point out that it is to make nominations private. That is a key part of that amendment.

CHAIRMAN- I accept the point; it is too late to deny it. I put the question to the Convention. Those in favour of the amendment proposed by delegate Ms Julie Bishop, please raise their hands. Those against, please raise their hands. Are there any abstainers who wish their names and votes to be recorded? No. Ayes 35, against 74. I therefore declare the Julie Bishop proposal lost. I call on Professor Tannock to formally move his amendment.

Professor TANNOCK- I move:

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. This process of consultation shall involve the whole community, including State and Territory parliaments, local government, community organisations and individual members of the public, all of whom should be invited to provide nominations.

Parliament shall establish a committee which will have responsibility for considering the nominations for the position of President. The committee shall report to the Prime Minister.

While recognising the need for the committee to be of a workable size, its composition should have a balance between parliamentary and community membership and take into account so far as practicable considerations of federalism, gender and cultural diversity.

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.

I do not think there is any need for me to speak at length again. This amendment is designed to simplify the wording, to retain the principles of community involvement and inclusiveness and to place greater emphasis on the committee reporting to the Prime Minister, with the Prime Minister having the final decision as to whether or not he accepts a recommendation of the committee and taking the matter forward.

There is one addition to the amendment that I have moved that I would like to make, and that is an addition to cover confidentiality. We would like to emphasise that the work of this committee should be strictly confidential, so we are moving away from the idea of publication of the names of people who are nominated. We would like to add a sentence that says:

The committee should not disclose any nomination other than with the consent of the nominee.

Senator Hill has indicated he is happy with that addition.

CHAIRMAN- Would you just read those words slowly so everybody can take them down?

Mr TANNOCK- The addition is: `The committee should not disclose any nomination other than with the consent of the nominee.' We are of the view that we are really talking about principles here. The detail, the appropriate wording, will be tidied up by parliament when the legislation comes before it in due course.

CHAIRMAN- I understand Dr Cocchiaro has a further proposal. Could you please tell us what it is, Dr Cocchiaro? This is with respect to this amendment and it has the requisite 10 signatures.

Dr COCCHIARO- I would just like to suggest that we add `cultural diversity' rather than `racial diversity'. I believe most of the signatories have agreed to this- I could not see whom a couple were, but I do not think there will be any problem from the signatories.

CHAIRMAN- Professor Tannock, are you acceptable to putting `cultural' instead of `racial'?

Mr TANNOCK- Yes, I am prepared to accept it. But I want to make it clear for the record that it is important that people both from the indigenous community of Australia and from those other ethnic groups be considered for inclusion in this process.

CHAIRMAN- Senator Hill, do you accept that?

Senator HILL- Yes.

CHAIRMAN- In the circumstances we will accept that as a valid amendment, unless there is any dissent. Is there any dissent to that group including, instead of the word `racial', `cultural' in the terms identified by Professor Tannock? If there is no dissent, are there any speakers against that amendment?

Ms HEWITT- Once again, I draw your attention to the original which says: `Parliament shall establish a Community Constitutional Committee'. Mr Tannock has suggested that parliament shall establish a committee. I am afraid that, once again, we are eliminating the community involvement, and in the present form I would not support that recommendation.

CHAIRMAN- Thank you, Ms Hewitt. Are you for or against it, Senator Stott Despoja.

Senator STOTT DESPOJA- I just have a procedural question, Mr Chairman. I was wondering whether you wanted me to amend that amendment now, whether I should move the amendment to include a number of words at this point, or whether I should wait until you have dealt with this amendment and treat my amendment as contingent upon it.

CHAIRMAN- I think it would be better to deal with this amendment. We have a number of others, and I am afraid some of them are a bit in conflict with what we are deciding now. Therefore, Senator Stott Despoja, I think we had better put this amendment before you move yours; I then have another one from Mr Clem Jones, which relates to the whole and it is not necessary to give it at this stage. On the basis, therefore, that we have two other amendments which have been foreshadowed- one by Senator Stott Despoja and the other by Mr Kilgariff- are there any speakers on the amendment?

Mr MUIR- Delegates, I would just like to make the point that the debate here in relation to the nomination procedure this afternoon has revealed a transparency in this part of the so-called model. The problem is that this was seen to be a sop to the public of Australia to apparently involve them in the process of consultation. We now have amendments endeavouring to take the community out of all this, and we also have amendments in relation to endeavouring to take out the transparency of the procedure. There are two issues here- one is the community is being taken out again and the other is transparency is becoming opaque.

CHAIRMAN- Ms Schubert, are you for or against?

Ms SCHUBERT- Against.

CHAIRMAN- We have had two speakers against. Do we have a speaker for?

Mr WRAN- In response to the last speaker, it is worthwhile looking at the actual amendment. In the second paragraph it said that the committee should have a `balance between parliamentary . . . and community membership'. The last paragraph begins, `This process for community consultation'. It is the clearest possible involvement of the community and provides a community process.

Ms SCHUBERT- I think there are a couple of key changes here that delegates should be very clear about in voting for this amendment. The first change is a change to do with the provision of nominations publicly. It is agreed that there is a separate amendment to deal with that, so it is not important in the context of this amendment. The second change is about this committee which, as Glenda Hewitt has acknowledged, has now had its status and its name changed, which is a substantial difference in emphasis about the composition of it.

This committee under this amendment will now report directly to the Prime Minister. While some people will see that as a mechanism for greater accountability, what it does is actually denies the equal responsibility of the Leader of the Opposition. We have heard a lot in this chamber in the last week and a half about the importance of bipartisanship, about cross-party support, about this is the only way to ensure that this person is truly impartial. If you believe that, then live by it.

The other key change is a watering-down of the language about composition of the committee. If you read the original form, it says:

The Committee shall:

• .in its composition, reflect the diversity of the Australian people having regard to gender, race, age and geographical considerations;

Let us contrast this with the amendment foreshadowed by Professor Tannock. We have watered-down the language, so now we say:

. . . take into account so far as practicable considerations of federalism, gender and cultural diversity.

The age criteria has disappeared altogether, perhaps moving this much further towards a McGarvie model than perhaps might initially have been conceived.

I think it is really important that we recognise that the model we were presented with this morning tried to balance the considerations of a range of community based delegates. What it said was effectively that there have been a large number of very valid contributions made in the debate over this past week and a half, claiming a role for the community, an involvement for the community that is genuine, and also recognising that the limitations of our parliaments are in their composition, with respect to broader community diversity. I think it is really important that we not be fooled into thinking that this is just a series of minor word changes. It is substantially different and I urge delegates to vote against it.

Mr RUXTON- I move:

That the motion be put.

Motion carried.

CHAIRMAN- I will put the motion. You should have mind that there is a further amendment foreshadowed by Senator Stott Despoja and a further amendment foreshadowed by Mr Kilgariff both of which to a greater or lesser degree affect this proposal as it goes forward. The question is that the amendment moved by Professor Peter Tannock, which is to delete section A and insert in its place the nomination procedure of which you have all been given a copy and which is on the board, be agreed to. Those in favour please raise your hands. Those against. There are 74 in favour and 24 against.

Amendment carried.

Senator STOTT DESPOJA- Given that the Tannock amendment was successful, I now seek to include some extra words. I move:

After the words: "balance between parliamentary" Add: "(including representatives of those parties with party status in the Federal Parliament).

My amendment seeks to add to the nomination process, where the short list of nominations is given to the Prime Minister and the Leader of the Opposition for consideration, simply by including the leaders of political parties with party status in the federal parliament.

CHAIRMAN- Are there any speakers? The amendment has been appropriately endorsed by 10 people, has it?

Senator STOTT DESPOJA- Yes.

CHAIRMAN- Just so that everybody can have that firmly in their minds, would you mind repeating that so that everybody knows just where to put it in.

Senator STOTT DESPOJA- I have actually submitted this to you so that is why I thought it would have been distributed. I have actually moved two amendments so this is not the initial one. After the word `parliamentary', which is handwritten in the Tannock amendment, I propose to include `representatives of those parties with party status in the Federal Parliament'. Currently, parties that have party status have five members in the federal parliament. Obviously this is to include broader representation, and specifically those parties other than the two old parties.

CHAIRMAN- Thank you, I have now received a copy. I did not have one before.

Mr RUXTON- The reason why I speak against the motion is that we are getting more and more politicised as we go along. The Prime Minister and the Leader of the Opposition are enough; we do not want any more in the act, for goodness sake- not from the parliament.

Mrs MILNE- I speak in favour of the motion. The next century will see multiparty politics right across Australia and in the federal parliament. The more people who are consulted in this process will ensure that the person who is selected is not politicised, because to get three party leaders to agree you would almost certainly get someone who was not affiliated with any one of them and had never been so. I speak strongly in favour of it, because it will ensure that you get the right person who is not heavily politicised.

CHAIRMAN- Do you mean in the federal parliament or in all parliaments?

Mrs MILNE- All parliaments.

Mr ROCHER- I know Senator Stott Despoja did not have the narrow interests of the Australian Democrats only in mind because she would be aware that the Leader of the National Party would also be entitled to be consulted. And so he should be, if we are to go down that track.

The arrangement in the federal parliament whereby the status of so-called minor parties is recognised is for administrative purposes. It has evolved under successive governments to facilitate special administrative arrangements, such as office location and staffing.

Despite the meritorious political achievements of the Australian Democrats- and it is only partly relevant to what I have to say- they have yet to win a seat in the House of Representatives. Against that, there are five members of the House of Representatives who were elected without party affiliation, two of whom have since formed their own, different, parties. Therefore, recognition by the parliament of minor parties for administrative reasons is hardly ground for special treatment. Here we have the entrenchment of the party system taking another form. I think that some in this room would object to that.

There are five other minor parties represented in the present parliament, three of which are in the Senate and two which are in the House of Representatives. Against that, there are three independent members in the parliament- and one to come, I understand, if you can believe recent reports. This is a moving feast. I say to you and I say to the delegates, in all honesty, once you start going down this track you should be fair about it and perhaps include representatives from the other groups. But the preferred position I have is that this motion be defeated. Surely it is enough for the leaders of the main, recognised, parties to be involved in the way that is proposed.

Ms THOMPSON- I speak in favour of this motion. It surprises me somewhat that an independent member of the parliament would want to cut out a process by which greater representation was going to be given. I speak in favour of this motion because I think it is important that at all levels of the process consultation take place. Whilst I am firmly a member of one of the main parties, I do believe that, in the parliament, the members of the other parties have been democratically elected. They have a right to have a voice in the parliament, and that right should be recognised. Until the electorate no longer votes for the Democrats, the Greens and the Nationals, then we should consider their interests and their opinions as much as we consider anyone else's.

The Most Reverend PETER HOLLINGWORTH- In speaking against this, I am not speaking against the place, role and importance of minority parties- far from it. I am talking particularly, though, about who it is who may have to serve under the president. It will be either the Prime Minister of the day or the Leader of the Opposition. That, to me, is absolutely critical because both parties need to be comfortable with the nomination. Many of the frictions that may subsequently occur may occur when there is a change of government. It is for that reason that I would therefore, regretfully, have to speak against Senator Stott Despoja's motion.

CHAIRMAN- Mr Johnston, are you for or against?

Mr JOHNSTON- I am against the amendment, Mr Chairman. What we are facing here is really the mother of all hybrids. Now we are bringing in more parties. While it might on the surface be democratic, the point also needs to be made that there is only so much you can do within the parliament before you have an executive that can no longer govern. Now we have the head of state issue not only being consulted with the Leader of the Opposition which might work but now we want to bring in all the minor parties.

How is the Prime Minister, who does not control the Senate usually, going to get agreement on an amendment? I can think of any number of reasons or any number of agendas that minor parties might have in the back of their minds to push a certain candidate forward who may not first off have the support of the Prime Minister and may not have general community support because they may be associated with specific issues. I think we should look more closely at the original motion and leave it the way it is because, if we go down this path, we are never going to be able to agree on anything.

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Last updated: 21 October 2000