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TRANSCRIPT OF PROCEEDINGS
Thursday, 12 February 1998
Page 14
CHAIRMAN- The
question is that the amendment moved by Senator Stott Despoja be
agreed to.
Motion carried.
CHAIRMAN- Mr
Kilgariff, do you wish to move your amendment?
Mr KILGARIFF-
Given that the Tannock amendment got up, I think that my
amendment has become inconsequential.
Amendment withdrawn.
CHAIRMAN- The
nomination procedure has been amended. Are there any further
amendments to A within the bipartisan appointment model?
Ms THOMPSON- I
think there is an amendment from Mary Kelly and Ann Bunell.
CHAIRMAN- Do
you have an amendment, Delegate Mary Kelly?
Ms MARY KELLY-
Yes, I do. It may appear not to have 10 signatures, but I believe
that is in your keeping at the moment.
CHAIRMAN- As
long as you have the 10 signatures. It is not in my keeping but
as long as the motion is there with 10 signatures.
Ms
MARY KELLY- I have a copy just in case. I move:
After
existing two dot points, add new dot point:
"Be
mindful of community diversity in the compilation of the
short-list."
I must say I am
referring to the original shape of the paragraph but I think it
still fits within the Tannock version. My amendment reads that
the committee `be mindful of community diversity in the
compilation of the short-list'. To be honest, this is a lot
wetter than I would have liked to move but, because one does not
know the size of the short-list, it is very difficult to move
something firmer about things like gender balance and so on. One
also cannot mention all sorts of different balances because you
then reach an assumption that the short-list will be very large.
On that basis,
because the committee itself is structured in a mindful way about
diversity, this amendment asks that committee to be mindful when
it is making the short-list about what that diversity means. In
other words, its real meaning is that you cannot put up all men
or all women and so on. Although it is very general, that is
necessitated by the general nature in which I am trying to insert
it. It is really a thing about the spirit of it.
CHAIRMAN- Can
we vote on that or would anyone like to speak against it?
Professor
WINTERTON- I am in support of the principle behind this, and
I am sure the committee would be mindful of these things but,
with all due respect, too much political correctness is going to
kill the republic before it is even conceived.
CHAIRMAN- The
question is that the amendment be agreed to.
Motion carried.
CHAIRMAN- I
have a proxy advising that our colleague Mr Neville Bonner is not
well and, in light of his obvious frailty, I think we should
accept this recommendation for a proxy. He has nominated
Professor David Flint as a proxy from 4.00 p.m. this afternoon.
B. Appointment or
Election Procedure
Ms
BISHOP- I move:
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."
In view of the fact
that the Tannock amendment got up, the amendment at the first dot
point in (2), which deletes the phrase `having taken into account
the report of the Community Constitutional Committee' will no
longer go ahead because there is a committee. That amendment was
based on the deletion of the committee.
CHAIRMAN- Yes.
In light of that, I think we should withdraw it.
Ms BISHOP- Mr
Chairman, I do persist with the amendment deleting the phrase
`which shall be done without debate', at the end of that
paragraph.
CHAIRMAN- Ms
Bishop has amended her amendment. That part of it relating to
`having taken into account the report of the community
constitutional committee', is deleted, but the second part
remains. Are there any speakers against the amendment?
Mr
TURNBULL- Mr Chairman, there is quite an inconsistency
between the attitudes taken by Julie Bishop in respect of the
community committee and in respect of this amendment deleting the
phrase `which shall be done without debate'. The reason for the
phrase `which shall be done without debate', which is standard
procedure anywhere in the world where presidents are appointed by
parliament, is so that there is not the sort of personal
criticism or attack that has been cited as a reason for not
having the committee.
I would have thought
that if you were against the committee, you would be delighted at
the phrase `which shall be done without debate'. At the moment,
thanks to the Tannock amendment, we have a committee that will be
of workable size, that will be representative, that will act
confidentially and discreetly, and will not publish any
nominations without the consent of the nominee. So, unless there
is a breach of security, there should be complete confidence
there. This ensures that there are no attacks under parliamentary
privilege on a candidate for the office of head of state in the
course of debate. For that reason, I oppose this amendment.
CHAIRMAN-
Thank you, Mr Turnbull. I have two foreshadowed amendments, and I
think it would be wise to produce them so that people can see
them. Councillor Tully, do you have the 10 signatures that you
require to endorse your amendment?
Councillor TULLY-
The signatures appear on the document. The foreshadowed amendment
is that paragraph B be deleted in its entirety and that the
following words be inserted in its stead: `The president shall be
elected directly by the people of Australia, except where a joint
sitting of both houses of the Commonwealth parliament elects the
president by a majority of at least three-quarters.'
CHAIRMAN-
There is another foreshadowed amendment. I call on Mr Clem Jones
to foreshadow it so that people know what it is.
Mr CLEM JONES-
My amendment is that, in light of the fact that the bipartisan
model did not receive 50 per cent of the vote and their clearly
expressed and published undertaking to take notice of the wishes
of the people in preparing the final model, including
particularly if provision for the election of the president is
not fulfilled, the model should include that provision.'
Actually, `ARM' should go in there in relation to the published
undertakings and so on.
CHAIRMAN- Are
there any speakers in favour of amendment 2?
Mr FITZGERALD-
I support Ms Bishop's amendment to delete the words `which shall
be done without debate'. It is quite technical. If the Prime
Minister moves, he can only stand in his place and say, `I move
that Mary Bloggs or Joe Bloggs be the next president' and then
that would be seconded. I think it only fitting that he makes a
speech outlining what Mary Bloggs or Joe Bloggs has in their
favour and why he is in favour and why he is nominating them.
Also, in seconding it, the Leader of the Opposition should be
able to make a speech, so that is technically a debate.
I think it is right
that anyone else should be able to speak. I do not think that
normally people would want to tear a character apart, but really
it is imposing on parliament to say that nobody can speak. If you
say that, then why get parliament to do it- just let two of them
do a secret deal somewhere, but don't humiliate parliament by
saying that you cannot make a speech in parliament.
Ms MACHIN-
Taking up the last point that was made, having been in these
sorts of situations, I think we ought to remember that there is
quite a bit of dignity in these sorts of parliamentary
procedures. As I understand it, the normal process would be the
sifting, and then the final recommendation would go forward to
parliament. It would probably be moved by the Prime Minister and
seconded by someone else, possibly the Leader of the Opposition
in the spirit of bipartisanship. That would be the end of the
debate.
The motion would be
put, the House would presumably agree to it because we would like
to think that this spirit of bipartisanship would mean that the
issue was resolved before it went into the House so we did not
have an untidy, unpleasant debate on the floor of the chamber.
That is the way it works in the real world. I think that is the
way we ought to expect it to work, and realise that from time to
time politicians and leaders get it right.
CHAIRMAN- Mr
Cowan, would you like to speak for the motion?
Mr COWAN- I
speak in support of the motion. I again remind Mr Turnbull of how
contradictory he can be at times. He has spoken very much in
favour of this bipartisan model on the basis that it would
require the support of the two major parties in the parliament.
In other words, he has argued very strongly that any nomination
would have the support of the majority of the parliament. To then
argue the case that we do not want this to be debated in the
parliament is quite contradictory.
There would be no
doubt at all that this would provide an extra caution for the
Prime Minister and the Leader of the Opposition to ensure that
the person whom they selected for the president would, in fact,
have not bipartisan support but the support of the parliament.
There is no doubt at all, parliament being such a public process,
that it should be debated. Any nomination by the parliament for
the position of Speaker or President- as you know yourself, Mr
Chairman- is debated, and this particular matter should be
debated too.
CHAIRMAN- Are
you for or against, Professor O'Brien?
Professor PATRICK
O'BRIEN- I wanted to speak for the motion. Someone was
talking to me as you were conducting that previous discourse. I
am supporting what Hendy Cowan had to say.
CHAIRMAN- I
want somebody who is against the motion to speak.
Mr
BRUMBY- Mr Chairman, I want to speak against the amendment
and, in doing so, I want to foreshadow a further amendment to the
original text which would be to add the words `which should be
done without debate, except for the motions moved by the Prime
Minister and Leader of the Opposition'. I think it is appropriate
that in a speech which nominates the president of Australia there
should be an opportunity for comment by the Prime Minister and
for that motion to be seconded by the Leader of the Opposition.
I think of precedents
around, and probably the best precedent which is around is
actually the nomination by state parliaments of a senator to fill
a casual vacancy. We have had two of those situations which have
arisen in Victoria. On both occasions the nomination which has
gone forward through the Victorian parliament has been a
nomination moved by the Premier of that state and seconded by the
Leader of the Opposition. I believe it would be appropriate in
these circumstances. We are nominating a president. I am sure
that the Prime Minister of the day would want to put some remarks
on the record in the Hansard to acclaim the virtues of the
nomination and for that nomination to be endorsed again on the
record by the Leader of the Opposition.
I agree entirely with
the point that Malcolm Turnbull made before. You would not want
an open debate in the parliament about those matters. It does not
happen anywhere else in the world. You would not want the
opportunity for dissident members of parliament to perhaps attack
the reputation of the nominee. It is therefore appropriate that
the Prime Minister and the Leader of the Opposition should be
able to make that speech and put that on the record. I foreshadow
that amendment.
CHAIRMAN- In
order that we can process it then, Ms Julie Bishop, do you accept
that proposal or not?
Ms BISHOP- No,
I do not.
Mr
HAYDEN- Mr Chairman, I am strongly supporting this
recommendation for these sorts of reasons. Firstly, parliament is
an open public forum for discussion and testing the issues of the
democratic process. We should be striving not to limit the
opportunities for that sort of process to take place but to
enlarge them.
Secondly, on a more
substantial practical ground if the debate or discussion is
muzzled. What about a situation where there is an Independent in
the parliament regarded as something of an eccentric because of
the way he raises certain issues and is excluded from the
processes and is asserting something about the nominee to come
before parliament, which the rest of us should know? It sometimes
happens that some of these people who are Independents and who
are behaving in an eccentric fashion, in fact, are ahead of their
time and are responsible for a substantial change in attitudes in
the community and dramatic ones.
I think Mr Hatton in
New South Wales is a classic case with his allegations about the
police. What if an Independent like that is muzzled? The late
Kevin Hooper, who was my campaign director for some time and a
state parliamentarian in Queensland, was raising issues about
corruption in the Queensland police force long before Fitzgerald
and long before the media were prepared to embrace concern on
those issues.
I can recall the Courier-Mail
or the Sunday Mail- it was one of them- publishing an
editorial saying that Hooper had gone too far with the things he
was raising in the parliament and that people should be careful
of him. He was my campaign director. I was even starting to have
doubts myself. But everything he said was proved correct and the
media were a long time behind the late Kevin Hooper in exploring
these issues. You cannot muzzle these people. They have to be
given a chance to express their concerns and those concerns can
be tested. They may be wrong but more than occasionally they are
right, and that is why it is important to protect parliament as
an open public forum for discussion.
CHAIRMAN-
Thank you. Mr Evans, are you for or against this?
Mr
GARETH EVANS- Mr Chairman, I am for the amendment but not for
the reason that is advanced by its mover nor certainly that
advanced by Bill Hayden. I do not believe it is appropriate,
given the nature and the dignity of the office we are talking
about, for the strengths and weaknesses of character of the
candidate in question to be exhaustively canvassed on the floor
of the parliament. I do think it would be appropriate to have
short speeches referring to the nature of the occasion and the
significance of it and the nature of the appointment of the
person in the way that has been suggested by John Brumby, but at
the end of the day really these are matters that have to be left
to parliament itself. If we try to legislate now for a form of
parliamentary debate which says you can only have two speakers
but no more than that, I think we will perhaps get ourselves into
a bit of a parody of the situation. I suggest that we leave out
those words and leave it to the parliament to decide what is the
appropriate procedure and format to deal with this kind of event.
The clear intention
that I hope would be conveyed is that we do not want an
exhaustive character analysis of candidates for high office of
the kind that is par for the course in the United States. That
was the intention of the movers of the motion in the original
terms. But since it is capable of being misunderstood and since
it is, in any event, essentially a matter that is going to be
resolved by the Commonwealth parliament and not by us, I suggest
that we accept the amendment and leave it for the good sense of
the parliament to prevail.
Mr RUXTON- I
do not want to sound professional, but I move:
That the
motion be put.
Motion carried.
CHAIRMAN- I
put the question that the amendment moved by Ms Julie Bishop,
bearing in mind the foreshadowed amendment by Mr Brumby, which
deletes the phrase `which shall be done without debate' be agreed
to. In other words, we delete the phrase `which shall be done
without debate'. Those in favour of the motion, being the motion
moved by Ms Bishop, please raise your hand. Those against? Those
in favour were 75; those against, eight. I declare the motion
carried.
Amendment carried.
CHAIRMAN- We
have a foreshadowed amendment by Mr John Brumby. Now that the
words are deleted, I do not think it is relevant, so that
amendment goes. We then have the foreshadowed amendment by Mr
Tully, which is a fairly radical one. I suggest that we might put
your amendment next.
Councillor TULLY-
Chairman and delegates, this proposal is to break a deadlock
between the direct election and-
Mr HAYDEN- Mr
Chairman, I rise on a point of order. I am sorry, Councillor
Tully, but I just want this clarified and we should know before
we go into this discussion. You talk about provision for the
election of a president by the people and that that provision
should be included as a result of your amendment. But what sort
of provision are you talking about? That should be in the body of
this amendment. Are you talking, as I was talking this morning,
of a nationwide entitlement to vote, a nationwide entitlement for
people to select themselves? Or are you talking about the more
restrictive filtering model for selecting candidates?
CHAIRMAN- I
will ask Councillor Tully to expose the detail, and your time
starts now.
Mr HAYDEN- The
point is it should be in the amendment; we don't want any
confusion later.
CHAIRMAN- I
will ask Councillor Tully to move his amendment and he can pick
up Mr Hayden's concern at the same time.
Councillor
TULLY- I move:
Omit
paragraph B and substitute the following paragraph:
"The
President shall be elected directly by the people of Australia
except where a joint sitting of both Houses of the Commonwealth
Parliament elects the President by a majority of at least
three-quarters
I indicate that this
is a proposal to break the deadlock between the direct election
method and the parliamentary appointment methods. Since
Federation in 1901, there have been 42 elections and on only four
occasions has any government commanded a combined two-thirds
majority in the House of Representatives and the Senate. I should
point out that no government has ever on any occasion had a
three-quarters majority.
Apart from the
philosophical differences, the parliamentary appointment method
of selecting a president has one fundamental flaw which has not
been addressed: there is no provision for resolving a deadlock if
the two-thirds majority of the joint sitting fails to agree on
the appointment of a president. In that situation, you could have
the House of Representatives sitting for three years and the
senior governor in Australia could be the acting president for
that entire time. This proposal, which marries in one way the two
competing concepts, would ensure that there will be a result.
The proposal has the
following key elements. It expresses the supremacy of the people
in the presidential election process. It provides for election by
the parliament if there is a three-quarters overwhelming
parliamentary support for a presidential nominee. The parliament
in effect in that situation would act as an electoral college.
More importantly, it does provide a mechanism for breaking any
parliamentary deadlock. This is not provided for in the current
ARM model. It gives the direct election delegates a real option
of supporting an amended bipartisan appointment model, instead of
abstaining or voting for the status quo at the final crucial
voting stages.
Given that a
significant number of direct election delegates will eventually
be forced to abstain or support the status quo, it will provide a
mechanism for other direct election delegates to support a
genuine compromise model, making it much more likely that there
will be a positive outcome to this Constitutional Convention. It
will significantly reduce the likelihood of many direct election
republicans campaigning against a subsequent referendum.
My fear is that this
Convention is inching towards a mickey mouse republic, where the
politicians and not the people of Australia select the president.
There are real republican supporters around Australia who will be
campaigning at a referendum against an unamended ARM proposal.
True republicans will not cop a situation where the power is
vested in the politicians in Canberra. I might predict as well
that there will be a plethora of Senate candidates around
Australia who will be campaigning on a direct presidential
election model, which puts into serious question any situation if
John Howard-
Mr TURNBULL-
Will you be resigning?
Councillor TULLY-
No, I am a member of the Labor Party. I will not be resigning for
that purpose, but plenty of others will be, Malcolm. I make the
point that, with a 7.14 or so per cent quota for the Senate on a
double dissolution- and I see my friend Phil Cleary laughing
about that; he may well be the one in Victoria- there is a real
prospect that direct presidential election candidates will hold
the balance of power in the Senate. I am calling on all
fair-minded delegates to support this amendment. I would say,
particularly to the people on my left who voted with honour today
for the status quo, that this is an amendment which is a genuine
compromise between both sides to ensure we can get a positive
outcome to this Convention.
CHAIRMAN- Do
you wish to specifically respond to Mr Hayden's question before
you resume your seat?
Councillor TULLY-
The intention of the amendment is that there would be a direct
presidential-
Mr HAYDEN- The
amendment I have is quite different from that one there. I
understand the point that Councillor Tully is making now.
Ms MOORE- I
actually second the amendment. Can I speak to the motion, please?
CHAIRMAN- Let
me see if there is anybody against it, because we have 10
seconders in this rather unusual circumstance. Is there a speaker
against that amendment?
Mr FITZGERALD-
I think this is a ridiculous amendment. I do not like speaking
against my colleague who comes from the same area as I do.
However, I have to on this occasion, Paul. This Convention has
certainly supported the proposition for the vote to go to the
Australian people on a certain republican model and it is nowhere
near this one here. The resolution as standing at present
requires the Leader of the Opposition to second the motion. If
you have the Prime Minister who presumably has half the lower
house and the Leader of the Opposition who presumably has a fair
percentage of the other locked in behind him, I think we are just
playing around with tactics. Real politics would be played then
once this became an option.
Ms MOORE- I
would like to preface my comments by saying that I am actually
from a party whose policy at present is not for direct election,
so I am not doing this to try to get a directly elected president
in the back door.
There have been a
number of comments during the Convention about hybrids, some of
them disparaging. I think hybrids at this stage is what it is all
about if we are to reach a compromise. It would be arrogant in
the extreme to assume that in a process like this only pure
models have any validity because pure models exclude input and do
not allow consultation.
This morning I
abstained from voting for the bipartisan model for two reasons.
One of those reasons is that I am strongly opposed to the
heavy-handed tactics that have been used during this Convention.
The other reason is that I believe that this model in its present
form, especially now that we have had the Tannock amendment
earlier, does not go far enough to involve the community. I do
not hold with Malcolm Turnbull's view that the people have
elected the parliament and therefore the parliament represents
the people. The fact is that our parliament does not represent
the people and never will until we see proportional
representation in both houses and, perhaps as a result of the
introduction of PR, until we see parliament made up of at least
50 per cent women.
I have argued from
the start that I believe this process to be flawed, that it is
not up to us to arrive at one model, particularly as there is so
much diversity here, in 10 days. But if this turns out to be the
only option open to us then I want to be part of the process to
make sure that we achieve the best outcome. I should also mention
that the beauty of the 75 per cent requirement is that it would
ensure that parliament would need to be truly committed to
cooperating and the likelihood of its appointing a politician
would be greatly reduced.
If it is accepted I
believe this will make the model palatable not only to more
people in this chamber who were very sold on the idea of direct
election but also to people in the community who will ultimately
have to vote for it at referendum. I therefore second the motion
and commend it for your consideration.
Mr HAYDEN- I
oppose this for just plain practical reasons. This recommendation
is if the parliament by a three-quarter majority cannot confirm
the sole nomination by the Prime Minister as president then the
public elect the president. But what is the slate that candidates
are going to use? Is it only the one name on which there is a
deadlock in the parliament or is there some other procedure? If
there is only the one name, it scarcely seems to me to be a
meaningful election at all. It would be terrible if the public
decided they had had jack of all this procedure and they would
not vote for the person either or is there some other sort of
formula in mind?
Unless I
misunderstood arrangements, but I am looking here at Mr
Turnbull's proposal- and I might say that he has put a great deal
of energy into it; and I am one of those who happen to think we
probably would not be in here at this time if it had not been for
the diligent and unflagging efforts of Mr Turnbull to move this
country towards a republic. I oppose what he is trying to do but
I respect the energy and integrity with which he has done it.
DELEGATES-
Hear, hear!
Mr HAYDEN- I
am pleased others agree with that. Perhaps Mr Tully could
straighten that out for me?
CHAIRMAN- Are
you for, Mr Gunter?
Mr GUNTER- I
speak in favour of this amendment, Mr Chairman, in part because
the need for a three-quarter majority is quite evident from
having a look at the table of parliamentary representation in the
joint sitting since Federation. Delegates may remember that Mike
Elliott and I earlier in the Convention attempted to move an
amendment to entrench proportional representation for Senate
elections as has applied since 1949 so that a two-thirds majority
would be a bipartisan majority.
However, if you go
back to the pre-1949 situation, two-thirds majorities were
achieved by one side of politics alone on at least six occasions
in those elections, yet a three-quarter majority was not. For
example, at the high watermark of Labor's representation in 1946,
there was a clear 68 per cent majority and no bipartisanship
would have occurred under those circumstances. I do not think
that even under this model it would be appropriate for the
president to be appointed by parliament. You already know my
reservations about parliamentary appointment in any case.
As to Mr Hayden's
comment about the slate of candidates for presidential election
in the event of no appointment of the president by parliament,
those are matters that can be fleshed out in due course and
should be done in perhaps the way that Mr Hayden indicated in his
model, if he were so desirous.
Mr WRAN- I
must say that I am quite shocked that Mr Tully, who has argued
the case for direct election with such passion hitherto, has seen
fit to move this amendment which is a real Clayton's effort in
relation to a direct election. The whole purpose of having an
election by the parliament, as has been stated over and over
again in this chamber in the last eight or nine days, is to get
bipartisan support. The prospect of a name going forward in the
federal parliament where both houses are sitting and of that name
being rejected is very remote indeed.
All this amendment
does is give the public the impression that they are going to
have a chance to participate in a direct vote whereas in fact
they have absolutely next to no chance under this procedure of
ever engaging in a direct election at all. So I think this is a
phoney effort merely to get a headline. It has nothing to do with
the merit, and it does not serve Mr Tully's standing well at all.
Councillor TULLY-
I will make this point of order and I will make it seriously.
Until today, there has been no genuine endeavour to get the two
groups together. This does provide a genuine compromise between
the two groups.
Mr WRAN- The
other thing I would like to say is this: Mr Tully in his remarks
pointed out that, if this amendment was not adopted, his group-
whatever that is- will abstain or vote for the monarchy. You have
your conscience and I have mine. We will not succumb to any
threat about how you will vote because I am confident that the
majority of delegates here will vote for an Australian as their
head of state.
CHAIRMAN- The
question is that the amendment moved by Mr Tully be agreed to.
Amendment lost.
Mr
CLEM JONES- As this will probably be my last contribution to
the debate in this chamber, I would like to take a moment to
congratulate delegates on the high quality of debate and some
magnificent addresses. They have made me feel very humble indeed.
Also, Mr Chairman, may I take the opportunity of expressing my
appreciation to you and to the Deputy Chairman. I believe you
have a difficult task and you have done it extremely well.
DELEGATES-
Hear, hear!
Mr CLEM JONES-
I move:
In the light
of the fact that the bi-partisan model did not receive 50 per
cent of the vote and their clearly expressed and published
undertaking to take notice of the wish of the people in preparing
their final model, including particularly provision for the
election of a President by the people, was not fulfilled, the
model should include that provision.
Let me refer for a
moment to the fact that the direct election model group went a
long way in endeavouring to achieve compromise in the republican
camps, but one thing we could not be compromised on was our
integrity. Our promise to those who elected us, and that made by
others, was clear and unequivocal. We could not forsake our
promise but- and this is the second reason why I moved this
motion- others gave the same undertaking, namely that they would
support direct election if it were seen to be the wish of the
people. This undertaking has, in the last eight days in this
chamber, been totally denied by them.
They talked about
compromise, but compromised only on things they did, not
promised, and totally failed to fulfil the promise they did make.
I remind delegates that during the campaign that promise was made
loud and clear. In public forums and through the media the ARM,
while supporting presidential nomination by parliament, said if
the people showed the wish to have the president elected by the
people, as they have done over the last two weeks, their wish
would be given regard.
I recall a television
debate in which Sir James Killen, Sallyanne Atkinson and I
participated. Sallyanne is a very eloquent speaker and she
eloquently emphasised that the ARM would give a clear undertaking
that they will look at, consider and act in accordance with the
wishes of the people. Sallyanne is a highly respected person in
Queensland and every person who saw that debate would have
completely believed that they were going to get a president
elected by the people. It was quite clear that, if that is what
the people showed they wanted, that is what they would get. They
showed what they wanted, but they have not got it. I believe that
the result in Queensland was based on the fact that the voters
believed that that was what was going to happen. They were
listening to high-profile people and respecting them as such.
The other thing is
that it has been said that there was no proper model put before
this chamber and, in fact, that what we have today is only a list
of proposals. I want to make it quite clear to this chamber-
probably delegates have forgotten- that before the Convention
commenced we submitted, in accordance with the requirements of
the secretariat, a full and total model which dealt with every
clause that was needed to express the sort of republic that we
believe we need. It is all in there, every bit of it.
Unfortunately, with
the way things went and our desire to cooperate with our fellow
republicans, we did not put this on the table for voting. I would
like, if I may, to table it again. It was slightly amended during
the debate and now has been re-amended to go back to our original
principles with a few amendments, which in fact came from this
chamber.
CHAIRMAN- We
will incorporate that into the proceedings of the Convention.
Mr CLEM JONES-
Finally, no matter what has happened in this chamber and no
matter what people say, we must all stay with the principles with
which we live. We will not, I will not, and my colleagues from
Queensland will not support any moves wherever for a republic
which is a pseudo-republic and a president who is a puppet
president.
Ms HEWITT- On
a point of clarification, I do not understand this. It says:
In the light
of the fact that the bi-partisan model did not receive 50 per
cent of the vote and their clearly expressed and published
undertaking . . .
Who does he mean by
`their'? The ARM?
CHAIRMAN- I
think he means the participants to the bipartisan model. It is
the people who propose the bipartisan model. He might have meant
the ARM. Mr Jones, you meant the ARM, didn't you?
Mr CLEM JONES-
Yes.
CHAIRMAN- Mr
Beattie, are you for or against the motion.
Mr BEATTIE- I
am for the motion.
CHAIRMAN- Is
there a speaker against the motion?
Mr SUTHERLAND-
I formally oppose it.
Mr BEATTIE- I
know, as every delegate in this room knows, that this motion that
Clem has moved is not going to succeed, but I want to use this
opportunity to say a couple of things. Clem is 80 years-of-age.
He has come here with a commitment and a determination to put a
model before this Convention.
His team, the Clem
Jones team, ran in Queensland. It won the majority support of
those people who supported a republic. He went out and ran on a
direct election team. He had the courage and decency to go out
and consult and listen to people. He came here with the
determination to put up his model and he has done just that.
Everyone in this room should have the courtesy to respect the
courage with which he has done that. Clem, I for one say, `Well
done!'
CHAIRMAN- I am
sure the whole Convention endorses those comments. It is a
remarkable effort by somebody of the age of about 40, let alone
somebody at your age, Clem. Congratulations! The question is that
the amendment be agreed to.
Motion lost.
CHAIRMAN- I
put the question that item B, as amended, be agreed to.
Mr CLEARY- Can
you clarify what is being put?
CHAIRMAN- The
amendment moved by Mr Clem Jones having been defeated, we are now
considering item B, Appointment or Election Procedure, on the
bipartisan appointment model. It was amended. Therefore, I put
the question that item B, as amended, be agreed to.
Motion carried.
C. Dismissal
Procedure
Professor
WINTERTON- I move:
Delete
clause C and substitute:
(a) The
President may be dismissed by an absolute majority of the House
of Representatives on the ground of behaviour inconsistent with
the office. This shall not be justiciable.
(b)
Provision should be made for the House to be convened to enable
the House to consider the issue and not dissolved or prorogued to
prevent it.
(c) The
Prime Minister may suspend the President for 14 days to enable
the House to consider the issue within that time. The Acting
President provisions shall apply during the period of suspension.
I endorse entirely
the spirit of the original resolution. I see this amendment as
simply smoothing out some of the rough edges. The basic proposal
in the original motion was that the ultimate removal of the
president should be by the House of Representatives but that
there should be an initial period whereby the Prime Minister
could basically suspend the president pending endorsement by the
House. But this had two strange consequences: firstly, even if
the House disagreed with the Prime Minister, the president was
nevertheless basically sacked and was allowed simply to be
reappointed; and, secondly, that the vote of the House would
count as a vote of confidence, which would mean that the
individual members of the House would simply vote according to
party discipline.
This amendment has
three elements to it. The first one simply provides that removal
of the president should be by an absolute majority of the House
of Representatives. But it also states, pursuant to the idea of
the dignity of the President, that it should be `on the ground of
behaviour inconsistent with the office' and, in order to keep
these issues out of the courts, it provides expressly that this
issue is non-justiciable. So the first provision is basically
removal by the House of Representatives. The second provision is
that the House remain in existence or to be called together to
deal with the issue. The third provision takes up the spirit of
the original motion, but I see it as smoothing the rough edges by
providing for a shorter period- 14 days- of suspension to enable
the House to consider the issue and the interim presidency
provisions apply in the meantime.
Perhaps I could say
one or two things. One of the disadvantages of the original
motion is that it is incompatible with the dignity of the
president to be sacked by the Prime Minister. The president is
appointed by the people indirectly- we have emphasised that-
through the two-thirds vote and should be removed with the
authority of the people, through indirect vote, through the House
of Representatives. The original motion can lead to what I called
earlier, and others have called too, a game of constitutional
chicken whereby the president and the Prime Minister race to
dismiss each other.
If you look at the
original motion, you can envisage a situation whereby the Prime
Minister is summoned into the president's office; the president
summoned Sir David Smith, or his equivalent, and says, `Now make
sure we don't have any paper or pencil because the Prime Minister
can immediately give written notice that I am out of office. Keep
pencil and paper out of reach.' It certainly discourages what we
should be encouraging. We should be encouraging presidents to
give the Prime Minister notice. One of the principal criticisms
of Sir John Kerr was that he did not give Prime Minister Whitlam
adequate notice. This sort of proposal where there is immediate
dismissal is a severe disincentive to giving the Prime Minister
adequate notice. I have basically dealt with the principal
issues.
Sir DAVID SMITH-
Could Professor Winterton tell us whether this presidential
sin-bin would be in the grounds of Yarralumla or out in Dunrossil
Drive? Fourteen days suspension for a head of state! Talk about
dignity!
CHAIRMAN- We
will take that on board.
Mr
GARETH EVANS- I speak against the amendment and in favour of
the original dismissal procedure in paragraph C. For all
practical purposes now the Prime Minister can, effectively,
instantly dismiss the head of state's representative, the
Governor-General. The process involves reference to the Queen
but, basically, it is on the advice of the Prime Minister. The
sanction against misuse of that power at the moment is
essentially political. It has never been done in our history, but
if it were to be done cavalierly or without good cause or able to
be publicly and politically articulated, the political response
would be pretty swift and savage from the Australian community.
What our particular
proposal in paragraph C on dismissal procedure does, in fact, is
just bring that political consequence more rapidly to fruition,
in the sense that the Prime Minister, having made the decision to
sack the Governor-General for whatever reason, immediately has to
in effect face the House of Representatives and survive what is
in effect a motion of confidence in the House of Representatives.
If the Prime Minister of the day has acted without the support of
his own party or in a way that is so manifestly unconscionable
that he cannot win the support of the House of Representatives,
he will suffer a very swift political fate indeed. If there is a
party vote sustaining him in this situation, which is nonetheless
perceived by the wider population as indefensible behaviour, the
retribution may be a little longer delayed, politically, but it
nonetheless will be sure. I think, under those circumstances,
there is absolute clarity in the way that the particular proposal
is put to you at the moment. The no-confidence dimension of it
simply is a way of expressing the political dimension of it and
the political sanction that is meant to work if the dismissal
power is cavalierly applied.
The present paragraph
C has the virtue of great simplicity and directness. The
dismissal is accomplished by the Prime Minister directly, without
any uncertainty associated with suspension periods and swearing
in and the possibility of ambiguity or uncertainty as to what is
going on during that suspension period and who actually has the
power. The dismissal is complete and clear.
The motion of George
Winterton would introduce some new concepts which would generate
a whole new area of uncertainty. What is involved in
`misbehaviour'? Misbehaviour assessed by whom? It is not to be
justiciable so it is to be a matter simply for the judgment of
the Prime Minister of the day. But what do we mean by
misbehaviour? Is it personal misbehaviour, constitutional
misbehaviour, political misbehaviour or what? The point about
keeping it clean and simple is to say- and this is really the
point that Dick McGarvie was originally making- it is a
democratic sanction that continues to exist in a system of the
kind that we are introducing by the government of the day. So,
there is uncertainty about that. There would be uncertainty about
the timing issue were you to introduce the suspension provision
and not enable the dismissal to be accomplished immediately. I
think for those reasons and others as well, but it is getting
late and I will not bore you with them, the proposal as we
originally put it to you- quick, clean, succinct, easily
understandable, politically very effective, constitutionally
quite precise, legally precise, in its implications- is the way
to go. I urge you to reject the amendment.
Senator STOTT
DESPOJA- I reiterate the concerns that I expressed this
morning, not only about a process that essentially relies on the
whim, if you like, of the Prime Minister- albeit with
ratification by the House of Representatives- but also that the
proposal, as it stands now with the dismissal provisions,
involves a denial of natural justice. That is, if the Prime
Minister sacks or makes the head of state stand aside, and can do
so through written notice, then awaits ratification by the House
of Representatives and that ratification is not forthcoming, the
president, that head of state, is still not restored to office.
They are then eligible for re-appointment, but I do believe that
in this process you are denying natural justice in the case of
the president.
Senator HILL-
Very briefly, Mr Chairman, I strongly oppose this amendment. What
it does, in effect, is reduce the power of the Prime Minister
vis-a-vis the head of state as to what exists at present. One
message that has very clearly come through this Convention is the
desire for ongoing stability within the structure of our
constitutional system. A key part of that is to maintain the
power of the elected Prime Minister, albeit the indirectly
elected Prime Minister, as opposed to the head of state. I think
that if we come out of this Convention having reduced that power,
as opposed to the head of state, that will not be something that
will be applauded by the Australian people. I therefore urge that
this motion be defeated.
Professor
WINTERTON- I have three points. As Gareth knows, the
parliament would be the body to judge misbehaviour. Even though
it is vague, it would have to be parliament because it is
non-justiciable. But it is certainly better than his proposal
where there is absolutely no ground at all.
Secondly, the great
weakness of the original motion here, as of the McGarvie model,
is that people simply are unwilling to contemplate presidential
misbehaviour in respect of the exercise of reserve power. If the
president goes mad, exercises reserve powers wrongly and sacks
the Prime Minister, there is absolutely no recourse on this model
or on the McGarvie model, because the new Prime Minister will not
move a motion of dismissal in the House. You have to leave it in
the parliament. You cannot tie it to the Prime Minister because
the president could have changed the Prime Minister. It is simply
a fundamental point that both the McGarvie model and this
proposal do not address.
Finally, I am not
personally mad on the suspension idea. That was put in to embrace
the spirit of the original motion. I saw this motion as
basically, in the spirit of it, trying to smooth out the rough
edges.
CHAIRMAN- The
question is that the amendment be agreed to.
Motion lost.
Professor PATRICK
O'BRIEN- I raised this matter with Mr Jones. It may not
require a procedural motion as such but I seek your advice. On
round 2 of our voting this morning, the direct election model got
30 votes and the McGarvie model got 31. Let me explain quickly
the situation. I did a count and thought that the DPEG got up,
but at lunchtime there were three very experienced members of the
press gallery who also did a head count and thought that the DPEG
got up. I understand that some people might stand up and vote
differently-
CHAIRMAN- Let
me explain to you. Perhaps it might shortcut your intervention.
There should be going around about now a full tally of who voted
on each of those propositions and you will be able to make the
count yourself. Everybody's vote is identified in Hansard
and it is to be distributed as soon as it is available. I thought
it would have been distributed by this.
Professor PATRICK
O'BRIEN- It would suffice if people just checked it. It was
not a whinge, it was simply that three very experienced hands in
the press gallery suggested that I should do it.
CHAIRMAN- The
Deputy Chairman advises that he had asked for a recount. As a
result, I will ask him to respond.
DEPUTY CHAIRMAN-
The same point was made by another delegate as well as Professor
O'Brien. I asked Mr Bill Blick to have another examination of the
votes to do a recount, and that recount confirmed the original
count precisely. Of course, it all tallied up because we got the
151 votes at the end. I am satisfied about that and that when the
tally sheet comes out with the names associated with it it will
confirm it.
CHAIRMAN- The
tally sheets are to be distributed as soon as they are available.
They will be available not only to all delegates, but to the
media and the public as well.
I put item C- the
dismissal procedure in the bipartisan appointment of the
president model. Those in favour of the dismissal procedure, item
C in the bipartisan appointment as expressed in the procedure
before us, please raise your hands. Those against, please raise
your hands. The ayes are 80, the noes 13.
Motion carried.
D. Definition of
Powers
CHAIRMAN- We
now move to item D. I have received an amendment.
Mr
TURNBULL- I move:
The powers
of the President shall be the same as those currently exercised
by the Governor-General. The non-reserve powers, those exercised
in accordance with ministerial advice, should be spelled out so
far as practicable. As to the reserve powers, the Constitutional
conventions relating to their exercise should be incorporated by
reference. The Convention refers the Parliament to the partial
codification model (other than Clause 4) at pp 102-105 of the
Republic Advisory Committee Report.
This language is
intended to convey exactly the intent of the language in the
model before. It is a little longer, but hopefully clearer. The
intention is that the powers of the president shall be the same
as those currently exercised by the Governor-General. I think we
all agree with that. The non-reserve powers, which are those
powers which are exercised in accordance with ministerial advice-
and that is by far the bulk of the head of state's powers- should
be spelled out as far as practicable.
As to the reserve
powers, the conventions relating to their exercise should be
incorporated by reference. Without insisting that parliament take
note of it, we have referred parliament to the partial
codification model, other than clause 4. I have discussed this
with the Attorney-General and Gareth Evans, who is a seconder of
the motion. There is a general feeling among those men who are
more learned in the law than I that this will give parliament
sufficiently clear instructions to do its work and effect the
intention of the Convention. I recommend the amendment to you.
CHAIRMAN-
Thank you, Mr Turnbull. We have another amendment which I will
ask Ms Julie Bishop to give notice of at this stage.
Ms BISHOP- As
to Mr Turnbull's proposed amendment, I foreshadow support for the
amendment in principle, but would still wish to amend it to
incorporate the amendment that I proposed.
CHAIRMAN-
Would you foreshadow your amendment so that the delegates will be
aware of its intent.
Ms BISHOP-
Item D currently reads:
The powers
of the President shall be the same as those currently exercised
by the Governor-General. The non-reserve powers of the President
should be codified, and the reserve powers incorporated by
reference.'
I seek to delete the
words `incorporated by reference'- I would seek to make the same
amendment in Mr Turnbull's amendment- and include `and the
conventions relating to their exercise should continue to exist'.
So it would read, `the reserve powers and the conventions
relating to their exercise should continue to exist.'
CHAIRMAN-
Thank you. First of all, I want a speaker against Mr Turnbull's
amendment.
Mr WILLIAMS- I
want to make clear my position in relation to this, in view of
the comment Mr Turnbull made. He said I was comfortable with the
language. I am comfortable with the language in so far as it
expresses his wishes. I do not support it as a matter of
principle.
Mr HOWARD-
That is a very big difference.
CHAIRMAN-
Julie Bishop is foreshadowing an amendment. We are now dealing
with Mr Turnbull's amendment. When we have put Mr Turnbull's
amendment, we will deal with Ms Bishop's amendment. I need a
speaker in favour of Mr Turnbull's amendment.
Mr
HOWARD- I seek some guidance from Mr Turnbull and Mr Evans. I
wonder whether you could let the Convention know whether there
are any precedents for what is proposed here, that is, to
incorporate by reference when converting from a constitutional
monarchy to a republican system of government. It is my
understanding that the only precedent that has been cited in the
literature on this is South Africa in 1961. I would not have
thought that that was a precedent that many people would
necessarily want to clothe themselves with. But I think it would
be extraordinarily helpful for the Convention, and I mean this
very seriously. There are some people who genuinely entertain the
notion that you can holus-bolus transfer powers which draw their
authority from the prerogatives of the Crown and just transplant
them and assume that they will continue growing in the way that
they had in that environment in a republican environment, leaving
aside the argument as to whether you are for or against a
republic. There are a lot of people who have a concern that, once
the character of the powers is fundamentally altered, then they
cease to operate in the way that they operated under a
monarchical system of government.
I am not arguing the
toss on the threshold issue but I think it is extraordinarily
important and is something that has tended to be glossed over in
the whole of this debate. Secondly, I would have to say that I
share the concern that I think was implicit in Daryl Williams's
intervention about spelling out the non-reserve powers. I tend to
agree with what Daryl said on that. I think it is important,
before the Convention takes a vote on this- and my disposition at
the moment would certainly be to vote against this amendment- for
those who are proposing this to further enlighten the Convention
on that issue that I have raised about the incorporation by
reference of the reserve powers which owe their origin to a royal
prerogative into a republican constitution. It is one of the
intriguing issues that so far have been skated over in this whole
debate.
Mr GARETH EVANS-
So far as incorporation by reference is concerned, the only two
precedents of which I am aware, without having researched this
separately, are those referred to in the Republic Advisory
Committee report, one of which is South Africa in 1961- I think
it was a little bit of a cheap shot to be knocking that since you
were pretty supportive of the South African Constitution, as I
seem to recall, over most of that period.
CHAIRMAN- That
is a bit irrelevant.
Mr GARETH EVANS-
The other one is Ceylon as it then was- now Sri Lanka- in 1946.
The formula adopted in South Africa was simply this:
The
constitutional conventions which existed immediately prior to the
commencement of this Act shall not be affected by the provision
of this Act.
That is an
incorporation by reference, albeit of a very brisk kind. It is
acknowledging that conventions apply. It is not purporting to
spell them out, it is not purporting to describe or define them,
but it is incorporating by referring to them.
Again, in Ceylon, as
it then was back in the 1940s, the new Constitution said that the
powers of the Governor-General: . . . were to be
exercised as nearly as may be in accordance with the
Constitutional Conventions applicable to the exercise of similar
powers in the United Kingdom by His Majesty.
Again, an
incorporation by reference. Page 94 of the RAC Report- and
Malcolm Turnbull actually referred to this during the course of
an earlier debate- does set out a slightly more lengthy paragraph
which describes what an incorporation by reference might in fact
look like now. Let me read it to you:
The head of
state shall exercise his or her powers and perform his or her
functions in accordance with the Constitutional Conventions which
related to the exercise of the powers and performance of the
functions of the Governor-General, but nothing in this section
shall have the effect of converting Constitutional Conventions
into rules of law or of preventing the further development of
these conventions.
It will be understood
that that is an extremely minimalist statement. It does no more
than acknowledge the continuing existence of those conventions,
which Julie Bishop wants us to do in her proposed language. It
not only acknowledges them; it says they do continue to have
force. It does not get us into the argument- which would be an
impossibly difficult one to resolve in this context or, I
suspect, probably in parliament- of trying to define what those
conventions are. So what we are doing when we are talking about
the reserve powers-
Mr HOWARD-
That is fairly relevant, though.
Mr GARETH EVANS-
Okay, but what we are simply doing is saying, `We want some of
this stuff to be spelt out a bit more clearly than it is at the
moment,' where you do not even have the name `Prime Minister' in
the Constitution. So in relation to those powers which everybody
accepts are exercisable on advice, to the extent that it can be
done so far as practicable- and we are not saying it should be a
total effort- they should be spelt out. The notion that the Prime
Minister of the day should enjoy the confidence of the House of
Representatives and things like that should be spelt out.
As for the reserve
powers- that residual category of things about which there is a
great deal of argument as to whether they exist at all and, if
they do exist, the way in which they should be exercised- we are
not getting into that debate. We should simply say that such
conventions as are applicable to them continue to apply, and we
refer to them in this way. That is what it all means and I would
have thought it was pretty uncontroversial.
CHAIRMAN- I
need a speaker against.
Mr WILCOX- I
am against. I am glad that this matter has been raised and
raised, indeed, by the Prime Minister, because this amendment
says:
The powers
of the President shall be the same as those currently exercised
by the Governor-General.
It then says:
The
non-reserve powers, those exercised in accordance with
ministerial advice, should be spelled out so far as practicable-
Now, there is the
problem, because it goes on to say:
. . .
as to the reserve powers, the Constitutional Conventions relating
to their exercise should be incorporated by reference.
That point has been
made and it is something I particularly want to draw attention
to, and it is something that Mr Turnbull may be able to help us
with. Section 5 of the Constitution says:
The
Governor-General may appoint such times for holding the sessions
of the Parliament as he thinks fit, and may also from time to
time, by Proclamation or otherwise, prorogue the Parliament, and
may in like manner dissolve the House of Representatives.
That in my view is a
reserve power. I just think that, once you start fiddling with
reserve powers and non-reserve powers and you want to codify
them, you can be in all sorts of strife. I would like to hear the
proponents of this amendment tell us how that fits in.
CHAIRMAN-
Thank you, Mr Wilcox. Is there a speaker for Mr Turnbull's
amendment?
Mr
LAVARCH- Maybe also to allay ever so slightly the fears of
the Prime Minister, I could recount that the legal opinion of the
Commonwealth Attorney-General's Department certainly was, during
the exercise of looking at this question, that it was indeed
quite possible to have a constitutional provision which would
refer by way of reference the existing conventions. Confirmation
of that is contained in the appendix to the Republican Advisory
Committee's report in the opinion of the acting Solicitor-General
at that time, Mr Dennis Rose QC, and that certainly was the legal
advice of the Commonwealth at that time.
To take up the point
which Mr Wilcox was raising, the point of the codification which
is to be found at pages 102 and 105 of the RAC report, the
so-called partial codification, is to explain the circumstances
where a power such as Mr Wilcox referred to, contained at section
5 of the Constitution, is in fact where the president or the head
of state would be acting on the advice of the Prime Minister.
There is no attempt to take away that section and what have you.
I suppose the contentious part is in what circumstances the
parliament should be dissolved outside of the advice of the Prime
Minister. That comes within the domain of the reserve powers, and
this is a matter on which there are differing views as to what
are the circumstances where the head of state is open not to act
on advice of his or her ministers. That is governed at the moment
by a series of conventions; hence the reference to the existing
conventions being referred to the Constitution.
To summarise, there
are both examples in practical terms of countries that have gone
down this path and the advice of the Commonwealth that it was
quite open for to us do this in this context. It seems to me that
this is an appropriate way to proceed: a partial codification of
those powers which are certainly not controversial and leaving
those reserve powers where there is controversy as to their
extent to be governed by the existing conventions.
CHAIRMAN- Are
you for or against, Mr Muir?
Mr MUIR-
Against, Mr Chairman. I just want to make the point in relation
to this that the ARM have made the point that powers are
absolutely crucial in relation to any model for a republic. We
have before us five and a half lines which deal with the issue of
powers. They are vague; they say that non-reserve powers should
be spelt out so far as practicable. I find it disappointing that
we are here on the second last day of our Convention and we still
do not have a proper model for the republic.
CHAIRMAN- Are
you for or against, Sir James?
Sir JAMES KILLEN-
Notionally for. There are two authorities that clear the
position. The first is that of Harold Lasky, who in one of his
great works made this observation:
The mere
fact that we do not know the limits of the reserve powers, that
they remain to be invoked in one side or the other in the
twilight zone of crisis, is sufficient to evidence the difficulty
of the situation.
We never know where
the twilight zone of crisis will be. The other is the opinion
offered by a man who sat in this House for a number of years;
that is Evatt, who said this in The King and his Dominion
Governors:
Surely it is
wrong to assume that the Governor-General is a mere tool in the
hands of the dominant political party.
I am sure that the
honourable former Attorney-General, Gareth Evans, reflecting on
that, will agree that a lot of his labours during the course of
the last nine days have been in vain, because that is precisely
what he has been trying to do: make sure that the
Governor-General is a tool in the hands of the dominant political
party.
CHAIRMAN- I am
not sure I can accept that as being within the normal definition
of somebody in favour of the motion. The names of those who have
voted on all those earlier questions are being distributed,
Professor O'Brien. I call Senator Hill.
Senator HILL-
I take the opportunity to speak against the motion and also raise
a point- that is, if I was to have an indication there might be
10 supporters, I might foreshadow an amendment that would delete
all words after `Governor-General'. That would mean that this
Convention would confirm the powers as they currently exist and,
down the course, would leave it for the government and the
parliament to determine the extent to which they should be
codified or otherwise.
In doing so, the
parliament would obviously take into account the views of this
Convention that seem to be somewhat widespread on the issue. That
way, those who want to argue for codification, like Mr Evans,
will have another opportunity to do it another day. But it would
not be in any way something that is put to the parliament as a
determination of this Convention and thus would retain, I think,
a desirable flexibility.
CHAIRMAN- If
you foreshadow that amendment, it will be accepted as long as we
have 10 delegates in its favour. Can I see whether there are 10
delegates who support it?
Mr WILLIAMS-
On a point of order: it seems to me that exactly the same result
can be achieved in two different ways. I will mention only one
because it is the simpler way- that is, take a vote on the first
sentence and then take a vote on the rest.
CHAIRMAN-
Thank you. That would be a way to do it. I will accept that as a
basis of procedure. Mr Bruce Ruxton, are you for or against?
Mr RUXTON- I
am against the motion.
CHAIRMAN- I
need somebody in favour of the motion.
Mr MOLLER- The
Prime Minister asked for examples of countries or constitutions
where the incorporation by reference model has been adopted. In
addition to Ceylon and South Africa, it has been adopted in
section 49 of the Irish Constitution. Also, intriguingly enough,
although not in relation to prerogatives, it has been adopted in
the Australian Constitution where section 49 thereof incorporated
in respect of the powers, privileges and immunities exercised by
the houses of the Commonwealth parliament that they were to be
the same as those exercised by the Commons house of parliament at
Westminster.
That provision,
section 49, remained in force until 1987 when the Commonwealth,
pursuant to the provision in section 49 that it could otherwise
provide, enacted the Parliamentary Privileges Act. It might be a
good thing for his education if the Prime Minister actually
listened when somebody answered a question he asked, but that is
all I have to say.
Mr BRADLEY-
Point of order: for the benefit of members of the Convention, I
have in front of me article 49 of the Irish Constitution. It does
no such thing.
CHAIRMAN- That
is not a point of order, Mr Bradley.
Mr RUXTON- I
do not care if it is the Constitution from Ireland, Ceylon or
South Africa; I am looking at our own Constitution- section 5. As
far as Vernon Wilcox and I are concerned, we were put here to
safeguard the ordinary people in this country. If they are going
to start codifying section 5 of the Constitution, the ordinary
people in Australia are going to lose their safety valve.
We want to know- and
I brought it up this morning when I spoke- whether section 5 is
going to be incorporated in the powers of the new president, but
no-one said anything. No-one said anything at all. I would like
to know the answers of Mr Turnbull and the others because what we
have been hearing this afternoon is snake oil again. That is what
I say.
CHAIRMAN- I
thought I would call Mr Turnbull and we would wind up the debate.
I know there are several others who wish to speak.
Mr
TURNBULL- Let us have a bit of a reality check here. If you
take the view that it is absolutely impossible to completely
codify the reserve powers or, on the other hand, absolutely
impossible to continue the conventions relating to the powers of
the Governor-General into the office of a new head of state, the
only conclusion is that, because of this remarkable intellectual
or mechanical deficiency in Australians in their Constitution, we
can never lose the British monarchy.
Mr RUXTON
INTERJECTING-
Mr TURNBULL- I
do not think one single one of us- with the possible exception of
you, Bruce Ruxton- would believe that. However, in an endeavour
to bring a bit of harmony, when parliament and the
Attorney-General's Department come to consider this issue, they
will undoubtedly take into account incorporation by reference,
because, at the end of the day, if you want the constitutional
conventions to continue in the Constitution, out of an abundance
of caution any sensible lawyer is going to recommend- as the
Solicitor-General did to the Republic Advisory Committee report-
why not say that? Why not write it down? I really do not believe
that this government or any government is going to put nothing in
the Constitution about the powers of the head of state and just
leave it all to trust.
I am perfectly happy
that the government and the parliament will produce a very
competent job here, because the last thing they are going to want
to have is an embarrassing mess in implementing this exercise. So
what I would suggest we do is recast this clause and say:
The powers
of the President shall be the same as those currently exercised
by the Governor-General.
That is the point of
principle, and I understand we all agree on that. The amendment
continues:
To that end,
the Convention recommends the parliament consider:
I would not even
insist that they refer to the Republic Advisory Committee report,
because no earnest republican could spend a day without having
that valuable volume by his side.
Professor
WINTERTON- I have a point of clarification in response to the
Prime Minister and a question for the Prime Minister. Firstly, he
asked about other countries. As far as I know, there are no other
countries that provided that expressly, but it has worked in many
countries like India, Trinidad and Tobago and some where the
conventions have continued to apply.
Secondly, I want to
ask the Prime Minister this serious question. The concern he
raised, with all respect, is absolutely right. As he and others
have pointed out, the current conventions are conventions of the
monarchy. When you cut the link with the Crown, the question is:
how do they continue? What perplexes me is that the paragraph
Gareth Evans read out and so on would address this. If you do not
have such a provision, how would you envisage one would make the
link? I was perplexed. You raise the question: how do the
conventions continue? If you are having doubts about a provision
that says expressly they should continue, what else could one do?
Mr
HOWARD- I thank Professor Winterton for that question. I
raised it very genuinely, not in an argumentative fashion. I
think it is an issue that is not entirely free from doubt and,
with great respect to the Republic Advisory Committee, it is
something that raises the question of the extent to which you do
try to spell things out in any amendment.
Having listened to
this debate, I am more than ever convinced that what Daryl
Williams suggested is the prudent and also the practical and the
non-controversial way of dealing with it. We express the
principle, and that is what people want. I accept that, if you
are going to have this model, then the general guidance to the
government is to have the powers the same as the
Governor-General. What you do after that is obviously something
on which exhaustive tactical advice and so forth would be
obtained.
That is all I want.
When we get to drafting the legislation that will be incorporated
in the referendum proposal to be put to the Australian people in
accordance with the undertaking I gave at the beginning of the
Convention, I do not want a situation to arise where we are told,
`Well, look you have to put in this business to do with the
non-reserve powers and so forth,' if, in fact, we come to a
genuine bona fide legal view that there is a slightly different
way of doing it. It is just to give us a certain degree of room,
and I think it is prudent in these circumstances. I do not think
it violates the principle. That is the only purpose I had in
raising it. Frankly, I think the commonsense thing to do is to
forget the Turnbull-Gareth amendment and also to forget the
suggestion and just adopt the first sentence.
CHAIRMAN- I
propose to put the first sentence of Mr Malcolm Turnbull's
original proposal, which remains there in a separate fashion.
That is the sentence to which the Prime Minister has just
referred.
Motion carried.
CHAIRMAN- The
question now is the second part of that amendment, which has now
been modified by Mr Turnbull, be agreed to. It reads:
To that end,
the convention recommends that the parliament consider:
Amendment carried.
CHAIRMAN- To
that I understand you now have an amendment that is applicable,
Ms Bishop.
Ms BISHOP- I
think the last part of the amendment would read now:
In other words, that
the parliament consider a statement to that effect rather than
the words `being incorporated by reference'.
CHAIRMAN- Are
there any speakers against that amendment? There being no
speakers against, any speakers for?
Mr GARETH EVANS-
I do not know whether there is some agony about the expression
`incorporated by reference', but it means exactly the same thing.
A statement by the parliament incorporated in the Constitution by
way of incorporation by reference is a statement that those
powers continue to exist. Moreover, you can also make it clear,
as I read out, that they not only exist frozen in time but you
can spell out very clearly in an incorporation by reference
statement that they would further develop over the course of
time- nothing would inhibit their further development. So
everything, Julie, you are trying to achieve is, in fact,
achieved by that explicit provision that is there. I cannot,
frankly, see the point of continuing to rage against it, unless
you have some linguistic hang-up about those three words.
CHAIRMAN-
Thank you, Mr Evans. I would propose to put the amendment that
the last three words `incorporated by reference' be changed to
read: `and the conventions relating to their exercise should
continue to exist.' Ms Bishop, we have not got the words right
yet, have we?
Ms BISHOP- It
now says:
CHAIRMAN- I
want to make sure we get it right so everyone knows what they are
doing. What we are doing is we are deleting the words
`incorporated by reference'-
Mr GARETH EVANS-
The problem is one of clarity. If that is the point you are
making, would it accommodate you to say that they `continue to
exist and that this may be made clear by their incorporation by
reference in the Constitution'?
Ms BISHOP- No.
I just want `a statement that the reserve powers and the
conventions relating to their exercise continue to exist'.
CHAIRMAN-
Could you please read that final sentence so that we know exactly
what you mean.
Mr TURNBULL-
Mr Chairman, I raise a point of order. I have never seen such an
argument about semantics. The statement that Ms Bishop has up
there-
Mr WADDY- That
is not a point of order.
Mr TURNBULL-
No, wait a minute. The point of order is that she should first
move that that second dot point be deleted because what is being
put in its place means exactly the same thing. This is the most
pointless exercise I have yet seen in this convention, but if she
wants to delete it-
DELEGATES- Oh,
come on!
Mr TURNBULL-
No, no, no. I ask the federal Attorney-General, Mr Williams, when
he goes to implement the continuation of the powers of the
Governor-General in this new office, does he expect to consider
`incorporated by reference' or has he already cast it from his
mind? If he will consider it, that is all that we are saying.
CHAIRMAN- The
situation is that we have an amendment moved by Julie Bishop. We
have heard the views expressed by others. Ms Bishop, you wish to
proceed with your amendment, as I understand it. I think you
should finally clarify what the amendment is before it is put.
Ms BISHOP- I
wish to proceed with this amendment because I believe that the
issue of powers is a very important one. At this point, I am
trying to address the issue that the Prime Minister raised
whereby there is a question as to whether the unwritten rules
that have grown up around the exercise of reserve powers within a
constitutional monarchy continue to exist. It is a simple
statement. My amendment reads:
To that end,
the convention recommends that the parliament consider:
- * a
statement that the reserve powers and the conventions
relating to their exercise continue to exist.
CHAIRMAN-
Thank you very much, Ms Bishop. Mr Evans, you have some problems
with it still. Would you like to explain to us just what they
are?
Mr GARETH EVANS-
The problem is one of unintelligibility unless you add the words
`a statement that', which you have now done. At least it is
intelligible surely.
CHAIRMAN- Ms
Bishop suggested that the words `a statement that' be included.
We now have an amendment before the convention which has been
moved by Ms Bishop which is an amendment to Mr Turnbull's-
Mr TURNBULL-
We'll accept it, Mr Chairman.
Mr GARETH EVANS-
He has accepted the same thing so we have accepted it.
CHAIRMAN- I am
afraid that is not the way the convention works at the moment. I
want to make sure that everybody accepts it. The proposal is:
Is this right, Mr
Turnbull? Do you accept that?
Mr TURNBULL-
Yes.
CHAIRMAN- You
accept that. We therefore are in a position where the proposition
put by Mr Turnbull is now the new clause D. I have no further
amendments. The question is that D, as amended, be agreed to.
Those is favour please raise your hands. Those against please
raise your hands. Ayes- 88, against- four. I declare D, as
amended, carried.
Motion carried.
CHAIRMAN- I
have meanwhile received a proxy from Ms Hazel Hawke, which I
tender, requesting Mr Thomas Kenneally attend as her proxy.
E. Qualifications
for Office
CHAIRMAN- I
have no amendments to E- Qualifications for Office. Is there any
discussion of E? There being no discussion, I put the question
that E be agreed to.
Motion carried.
F. Term of Office
CHAIRMAN- Term
of Office- five years.
Mr RUXTON- I
was going to move the adjournment so we can go to your dinner
tonight.
CHAIRMAN-
Sorry, I do not accept the motion.
Mr RUXTON-
Have you cancelled your dinner?
CHAIRMAN- I
put the question that F be agreed to.
Motion carried.
CHAIRMAN- We
now proceed to the substantive motion. I requested that the bells
be rung, in accordance with the procedures that I announced
earlier. That should ensure that all delegates are included in
the proceedings. The question is that, if Australia is to become
a republic, this Convention recommends that the model adopted be
the model that we have just ratified, in accordance with the
successive motions that have been passed by the Convention. In
order that this voting may take place, ballot papers are to be
distributed.
Ms MARY KELLY-
I have a procedural request that the debate be adjourned until
tomorrow. I do this in order for us to have the final words
before we vote. This is not a trick; it will make no material
difference. I did not follow what happened to D, despite
concentrating. We are now voting on something that relies on our
handwritten notes to understand the complete model. That is why I
request it.
Ms HEWITT- I
second that motion.
CHAIRMAN- I
point out that the Convention has already adopted a procedure,
which we have been following. So that all delegates are aware of
where we are before I put the procedural motion, the final motion
was that we consider that model, having been ratified in each of
its individual components by the Convention, as the model that
would be adopted.
I think the
procedural amendment should go up first. I put the procedural
amendment. We will vote by a show of hands. Those in favour of
the procedural amendment that this Convention adjourn and that
that motion be put first thing tomorrow morning, please raise
your hands. Those against.
Motion lost.
CHAIRMAN- We
will now proceed to the vote. The vote is on whether that
bipartisan model, which we have agreed to by consideration of
each of the successive resolutions that have been put- that is A,
B, C, D, E and F- and with the successive amendments that have
been passed by this Convention, is the model that Australia
should adopt if it becomes a republic. Four delegates are not
present. If Mr Tom Kenneally is here, he has an entitlement to Ms
Hazel Hawke's ballot paper. Delegates Steve Vizard, John Anderson
and Pat McNamara are not here. Please proceed.
Mr TURNBULL- I
move:
That if
Australia is to become a republic, this Convention recommends
that the model adopted be the bipartisan appointment of the
President model.
Mr WRAN- I
second the motion.
CHAIRMAN- Is
anybody doubtful about the question?
Mr RAMSAY- On
a point of order: would it be in order to advise the Convention,
before the vote is taken, of any delegates who are voting by
proxy?
CHAIRMAN- I
understand that there are two, apart from those who were
recognised earlier today- being the leaders of government or
leaders of the opposition. The proxy for Mr Neville Bonner is
Professor David Flint and the proxy for Mrs Hazel Hawke is Mr Tom
Keneally, both of whose proxies have been awarded on
compassionate grounds.
Senator FAULKNER-
I raise a point of order. I had raised earlier with the
secretariat the importance of the voting instructions being
contained on the ballot papers that delegates received. This has
not occurred on this occasion. I think it is important that you
do clarify that for the benefit of delegates.
CHAIRMAN- I am
about to do that, Senator Faulkner. You have three options on the
ballot paper. The options are that you either approve, disapprove
or abstain. You can tick or cross. You vote once, in one of the
three squares. If you tick `In favour', then it means you support
the motion. If you tick or cross `Against', it means you vote
against it. If you abstain, you of course tick in that third box.
Is there any further questioning about the procedure?
If there is no
further question about the procedure, I ask you to complete the
box in front of you. When you have done so, I will ask those in
favour to stand and to hand in their ballot papers. I will then
ask those who vote against to stand and they will hand in their
ballot papers. Finally, those who abstain are to do likewise. So,
will you please fill in your paper and sign it, and then I will
proceed to ask that they be handed in. The signature is necessary
to be sure who you are. If you are a proxy, will you sign your
name as proxy for whomever you are representing.
I ask those then who
are in favour of the resolution and are ready to hand in the
ballot paper to please stand, and I ask the tellers to collect
their ballot papers. Please sit down when you have handed in your
ballot paper. Is there any other delegate who is voting in favour
of that resolution, that is, that if Australia is to become a
republic, et cetera, we adopt the model? Is there any ballot
paper not collected? If there is no ballot paper not collected,
can I have the tellers, please? Will those voting against the
resolution, please rise in their places and hand in the ballot
papers. As soon as you hand in your ballot paper, please sit
down. Has anybody who voted against the resolution, not had their
ballot paper collected?
Mr Vizard having
entered the chamber.
CHAIRMAN- Mr
Vizard does not have a ballot paper; but Mr Vizard now has one.
Mr Vizard has not voted, and I have not ruled that he can vote. I
am afraid, Mr Vizard, that you cannot vote. I suggest you resume
your place. We are now calling on those who are abstaining. Will
those who are abstaining please hand in their ballot papers. Mr
Vizard, you were not here at the time, so I am afraid you cannot
vote. The bells rang, the bells stopped and part of the procedure
is over, so I am afraid we cannot-
Mr VIZARD- The
bells didn't stop.
Mr CLEM JONES-
The bells are still ringing.
Ms THOMPSON-
Let him have a vote.
CHAIRMAN- I am
afraid that in parliament it does not work that way.
Mr HAYDEN- I
think it would be terribly unfair, and would be regarded as such,
if Mr Vizard's vote was excluded on what I regard as mishappence.
I would move a procedural motion when this count is finished that
I would like a recount, and that would allow him to cast his
vote.
CHAIRMAN- In
the circumstances, I think that where there are 152 delegates and
there are a few absent, I do not think it is unreasonable to
allow Mr Vizard to vote. On that basis, I will allow him to do
so. Mr Vizard, before you cast your vote, I am afraid that
everybody else had to show and tell, so you have to declare your
hand as to in which category you are going to vote. Mr Vizard, I
will go through the procedures. Those in favour of the
resolution- are you in favour of the resolution?
Mr VIZARD- I
am.
CHAIRMAN-
Thank you, you may hand in your ballot paper in those
circumstances. Mr Waddy, I allowed Mr Hayden to speak in the
circumstances; do you really need to speak at this stage or can
we finish the count?
Mr WADDY- I
do, Mr Chairman. I rise to support Mr Hayden.
CHAIRMAN-
There are two unused envelopes. That means there are 75 votes for
the motion, there are 71 against and there are four abstentions.
Therefore, I declare the motion carried that for Australia to
become a republic the Convention recommends that the model
adopted be the bipartisan appointment of the president model.
Delegates (75) who
voted "yes":
Andrews,
Kirsten
Ang, Andrea
Atkinson,
Sallyanne
Axarlis,
Stella
Bacon, Jim
Beattie,
Peter
Beazley, Kim
Bell,
Dannalee
Bishop,
Julie
Bolkus, Nick
Brumby, John
Carr, Bob
Cassidy,
Frank
Cocchiaro,
Tony
Collins,
Peter
Costello,
Tim
Delahunty,
Mary
Djerrkura,
Gatjil
Edwards,
Graham
Elliot, Mike
Evans,
Gareth
Faulkner,
John
Fox, Lindsay
Gallop,
Geoffrey
Gallus,
Chris
George,
Jennie
Green,
Julian
Grogan,
Peter
Handshin,
Mia
Hawke, Hazel
(proxy-
Keneally, Tom)
Hill, Robert
Hollingworth,
Peter
Holmes a
Court, Janet
Kennett,
Jeff
(proxy-
Dean, Robert L)
Kilgariff,
Michael
King, Poppy
Kirk, Linda
Knight,
Annette
Lavarch,
Michael
Li, Jason
Yat-Sen
Lundy, Kate
Lynch, Helen
Machin,
Wendy
McGuire,
Eddie
Milne,
Christine
Mitchell,
Roma
Moller, Carl
Moore,
Catherine
O'Brien,
Moira
O'Donoghue,
Lois
Olsen, John
Parbo, Arvi
Pell, George
Peris-Kneebone,
Nova
Rann,
Michael
Rayner,
Moira
Rundle, Tony
Russo,
Sarina
Sams, Peter
Schubert,
Misha
Scott,
Marguerite
Shaw, Jeff
Sowada,
Karin
Stone, Shane
(proxy-
Burke, Denis)
Stott
Despoja, Natasha
Tannock,
Peter
Teague,
Baden
Thomas,
Trang
Thompson,
Clare
Turnbull,
Malcolm
Vizard,
Steve
West, Sue
Winterton,
George
Witheford,
Anne
Wran,
Neville
Delegates (71) who
voted "no":
-
Andrew, Neil
Andrews,
Kevin
Bartlett,
Liam
Beanland,
Denver
Bjelke-Petersen,
Florence
Blainey,
Geoffrey
Bonner,
Neville
(proxy-
Flint, David)
Bonython,
Kym
Borbidge,
Rob
(proxy-
FitzGerald, Tony)
Boswell,
Ron
Bradley,
Thomas
Bullmore,
Eric
Bunnell,
Ann
Castle,
Michael
Chipp,
Don
Cleary,
Phil
Costello,
Peter
Court,
Richard
Cowan,
Hendy
Curtis,
David
Devine,
Miranda
Ferguson,
Alan
Ferguson,
Christine
Fischer,
Tim
Fleming,
John
Garland,
Alf
Gifford,
Kenneth
Gunter,
Andrew
Haber,
Ed
Hayden,
Bill
Hepworth,
John
Hewitt,
Glenda
Hourn,
Geoff
Howard,
John
Imlach,
Mary
James,
William (Digger)
Johnson,
Adam
Jones,
Clem
Jones,
Kerry
Kelly,
Mary
Killen,
Jim
Kramer,
Leonie
Leeser,
Julian
Mack,
Ted
Manetta,
Victoria
McGarvie,
Richard
McGauchie,
Donald
Mitchell,
David
Moloney,
Joan
Muir,
David
Myers,
Benjamin
Newman,
Jocelyn
O'Brien,
Patrick
O'Farrell,
Edward
O'Shane,
Pat
Panopoulos,
Sophie
Ramsay,
Jim
Rocher,
Allan
Rodgers,
Marylyn
Ruxton,
Bruce
Sheil,
Glen
Sloan,
Judith
Smith,
David
Sutherland,
Doug
Tully,
Paul
Waddy,
Lloyd
Webster,
Alasdair
Wilcox,
Vernon
Williams,
Daryl
Withers,
Reg
Zwar,
Heidi
Delegates (4) who
abstained from voting:
Carnell,
Kate
(proxy-
Webb, Linda)
Craven, Greg
Lockett,
Eric
Mye, George
Motion carried.
Councillor TULLY-
I believe I have a point of order. I move a dissent from your
ruling. The result is 75 to 71.
CHAIRMAN-
Could I ask you which ruling?
Councillor TULLY-
The ruling declaring the motion carried. Clearly, there is not a
majority of those voting in favour of that particular motion.
There are 75 in favour and there is a total of 75 who did not
vote in favour. It cannot be declared carried. This has to be the
biggest rort I have ever seen in Australia.
CHAIRMAN- I am
sorry, Mr Tully, the vote is declared carried on the basis of the
votes that I have read out. I am not declaring it has an absolute
majority. I am declaring that it has a majority. It will need to
pass all other proceedings tomorrow before it becomes the
official model accepted to go to a referendum. On that basis, I
declare it carried.
Mr RUXTON- Mr
Chairman, I have a point of order. I do hope that when you say
prayers tomorrow morning you say, `God save Australia,' three
times.
CHAIRMAN-
Before I proceed, I have several notices here. Firstly, there
will be a short meeting of the Resolutions Group in committee
room 1 as soon as these proceedings are adjourned. Secondly,
several delegates have apparently distributed their papers in
order to get the signatories of other delegates and I have been
requested to ask that if any delegates have those books, would
they mind handing them to the secretariat. Thirdly, I understand
it is Mr Jim Ramsay's birthday; we wish him a very happy
birthday. I declare the Convention adjourned.
Convention
adjourned at 6.10 p.m.
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Last updated: 21 October 2000
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