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The Foundation for National Renewal |
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The Constitutional Convention of February 1998 |
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A missed opportunity for much-needed reform. |
| Introduction | Delegates | Proceedings | Summaries |
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TRANSCRIPT OF PROCEEDINGS
CHAIRMAN- Professor Winterton has suggested that it might be helpful to delegates, instead of immediately proceeding to the next model, if there is a little time to put questions or probe the details of each model before we go on to the general debate. I therefore propose to allow some opportunity for that, although I do not intend to allow too much time. This is really Mr Chipp's suggestion from the other day. It seems to me to be worth giving an opportunity to talk on this before we go on to the next model.
Professor WINTERTON- I have, of course, expressed my opinion on what model I personally prefer, but I think I can be more useful to the Convention if I make suggestions as to how the proponents of each model could improve them. Perhaps I could do that very briefly with this model. As you know, I do not favour popular election, but I think there are some strengths and weaknesses with the model so, rather than move amendments or seek to get nine other people to sign, I think I can be more useful this way. If I may say so, I think its great strength is in the removal clause, although I suggest to the proponents that they obviously ought to include some provision for the House of Representatives to be convened if it is not sitting, or not to be dissolved or prorogued if it is sitting. It seems to me that its principal weakness in regard to the method of nomination is that it does not adequately take into account the public's wish to vote on candidates that the public might favour. Could I suggest to the proponents that there would be a lot of sense in combining this with the second model, the Hayden model. I can see what motivates the proponents of this model. They want parliament to put forward candidates who have broad support. If you are going to get someone like Sir William Deane, Sir Zelman Cowan and so on to stand in this kind of election, if that is ever to be possible, it could only be done on the basis that parliament has bipartisanly nominated them. I fully support that idea, but there is no reason why Mr Hayden's idea could not also be brought in. Other candidates proposed by a number of voters could be brought in as well. So I urge them to consider combining those two things. As to tenure, for several reasons, I think there is risk in linking it to the term of the House of Representatives. Firstly, there are different issues in a general election and a presidential election. You would not want the two to be mixed up together, which is inevitably going to happen because, as I understand it, everyone would want to keep politics out as far as possible. I know it is not achievable but, as far as possible, you do not want to encourage it out of a presidential election. Secondly, there is the point made by an earlier commentator that you would not want a president to take his or her term of office theoretically into account in deciding, for example, whether to grant a double dissolution. On the powers, my suggestions here are more for clarification. Firstly, there is no express reference here to incorporation of the conventions, and I think this is an oversight. Bill Hayden has this as paragraph 11. The movers of this I presume have no objection to it. The point in brief is that, as to the conventions of the monarchy existing now, it would be desirable to have some provision- as South Africa did in 1961- for these conventions to continue under the republic. Secondly, it is unclear in this model whether there are any grounds for dismissing the Prime Minister other than 4A and 5A. Thirdly, in regard to paragraph 5A, there is an element of ambiguity- and the same applies to Mr Hayden's model. If it is the intention of the movers that the Prime Minister can be dismissed on the ground of lack of supply solely when supply runs out and section 83 is breached, then could I urge them to consider adding to 5A of the Republic Advisory Committee's attachment 5A(1), in line 2, `contravening a fundamental express' or `an express fundamental provision.' Thank you.
CHAIRMAN- I think that was more of a speech about the proposition than comment or criticism that might allow exposure of the model itself. The purpose really was to allow exposure of the model. I thought Mr Chipp's proposition the other day was really to allow more exposure than anything else. I propose to allow brief dialogue about the model only. Dr SHEIL- Professor Winterton has exposed quite a few things. I wonder why, if the people are going to be brought into all this, the Senate has been left out of the equation. It is more representative than the House of Representatives.
CHAIRMAN- I think they can take that on board.
Ms O'SHANE- I want to be clear in my mind what exactly it is we are doing right now. Are we actually discussing each model as it is presented?
CHAIRMAN- No. Mr Chipp suggested the other day that, when we move a motion, to ensure there is a complete understanding of the issue, there be a little time allowed to expose that particular model. We are therefore not going to the general debate. I think Professor Winterton intended to do so, but the purpose was only to ensure that people understood the model. If there were questions on the model before we go to the next one, I was allowing a limited time for people to put questions on the model.
Ms O'SHANE- Your announcement this morning was that each mover and seconder would actually present their model and then we would go into general discussion and debate about it.
CHAIRMAN- We are going to do that.
Ms O'SHANE- I have to confess I was thoroughly confused by what George Winterton has just done.
CHAIRMAN- I think that his speech tended to be a speech on the model rather than originally intended. Mr Chipp's proposal, which seemed to me to get a good deal of support, was only that if people had questions that they wanted to put to expose the resolution, they could do so. It is not intended that we do more than ask and propose questions.
Mr RANN- I want to address some of the criticisms that have been explained over the past week of the direct elect model.
CHAIRMAN- I think this is a response. It is not a matter of responding to it. You will have plenty of opportunity to debate it. The purpose was only to expose questions you cannot understand about the paper before you. Otherwise, we are going on to the next model.
Mr JOHNSTON- I would like to raise a point with Dr Gallop. I do not know how feasible it is to restrict people's ability to spend either their own money or their supporters' money on a campaign. How does he possibly see such a bill being drafted and not being challenged in the High Court as undemocratic?
CHAIRMAN- I will ask in due course when he responds. At the end of the debate I am going to allow each of the movers of the proposed models to respond at the end of the debate, so that they have an opportunity to canvass any of the issues before we actually go to the debate. If there are no more questions, we will proceed to Mr Hayden.
MODEL B Mr HAYDEN- Before I commence, I have been asked by two of the signatories of my model to mention that they were signatories solely to allow me to get the model onto the floor of this Convention. I appreciate that, but it is important to understand that they are not bound in any way by anything that is in that model or anything I say. I move:
[A] Nomination Procedure 1. A person who receives the endorsement of one per cent (1%) of voters, by way of petition, enrolled on all Federal Division rolls at the time of nominating should be nominated to stand for direct election. 2. No voter should be able to endorse more than one candidate for election as the Head of State.
[B] Appointment 3. The Head of State should be elected by a national poll at which all voters enrolled on Federal Division rolls should be eligible to vote. 4. Election should be on an optional preferential voting system.
[C] Dismissal 5. Dismissal should only be for proven misbehaviour or incapacity. 6. Dismissal for misconduct should be on a resolution moved by the Prime Minister or his or her deputy and supported by an absolute majority of a joint sitting of the Commonwealth Parliament.
[D] Powers 7. The powers of the Head of State should be the same as those of the Governor-General. 8. The Constitution should expressly provide that non-reserve powers should only be exercised on the government's advice. 9. There should be a partial codification of the reserve powers in line with the Report of the Republic Advisory Committee recommendation (see pp 102-106). 10. The exercise of the reserve powers, whether codified or not, should be non-justiciable. 11. The existing conventions applying to the Governor-General should govern the Head of State. These conventions should be provided for, by way of reference, in the Constitution. 12. Obsolete powers should be removed.
[E] Qualifications 13. The Head of State should be an Australian citizen of voting age and enrolled on Federal Division rolls.
[F] Term 14. The Head of State should be appointed for a term of 4 years. 15. No head of State can serve more than 2 consecutive terms in office.
Mr Chairman, this is described as a people's Convention. It is not. It is a gathering of politicians, not just politicians from parliament, but politicians from outside of parliament, some of whom I have no doubt want to quite reasonably enter parliament at some stage. After nine days of politicking we are all a seasoned bunch. I do agree with the implication in Archbishop Hollingworth's comment about two days ago that this assembly is clearly factionalised. The factions are tightly disciplined and it limits the opportunity for free spirits to independently explore views and to look for compromises in propositions which are being put forward. In those respects, the factionalisation and discipline are as tight as any party conference I have been to. Saying that gives some explanation of the difficulty several people experienced in obtaining signatures for their models, and allows me to say how much I appreciate the kindness of people who were prepared to sign my model to get it on the floor. We must go away from this Convention with something. If we do not, the public will be very angry, and properly so. But we cannot go away with any thing because they will be just as angry, probably even more angry, for the way in which their wishes have been flaunted by delegates to this Convention. The only thing that is going to appease their anger is direct election; not a fudge on key principles like the Direct Presidential Election group model. A rose is a rose by any other name and so is a toadstool. Earlier this month, the Morgan polls showed that overall 50 per cent of Australians would vote for the McGarvie and the ARM model of a two-thirds election by parliament. But the best majority in the states would be three states. As things stand at the moment, these propositions are going to be doomed at a referendum. It may be argued as some have argued that there is an education process after this Convention up to the referendum. I fail to be persuaded that the proponents of that view will achieve in the next 15 months what has eluded them for the past five years. The only genuine democratic process open to the people to determine, in all important respects, is the one I put forward. Any voter can nominate. I accept there can be vexatious, eccentric people who can clutter up polls, as is becoming evident with Senate ballot papers. I put in there a petition of one per cent of voters from the national rolls, as a necessary precondition to nomination. Every voter can vote. Any person can nominate and every voter can vote. It is just nonsense for the people from the Direct Presidential Election group to say their model allows people to choose whomsoever they want. It does not. It allows people to choose whom they might prefer from a very limited slate of candidates. That is vastly different. That is not democratic. That is quite elitist. Under my model that is true democracy. It is the authentic practice of the principle- from the people, by the people, for the people. It is the only model that respects the community; the only real direct election proposition before this Convention. I must ask the people who put forward the other models: why are they so mistrustful of the ordinary people? Why do they have such a low regard for the good common sense and sagacity of ordinary people? After all, ordinary people elect us into parliament. Peter Beattie might be critical of some of the people who get into parliament that way, but Ron Boswell and I are rather glad it works that way. Why be so mistrustful of the people and their common sense? We trust them to elect candidates to this Convention and to parliament. But of course, there is no choice. We do not trust them; we have no choice. But where we do have a choice about going further, about allowing a vote to the people who voted for us if we are elected representatives here- as happened in my case when I was in parliament- no, we do not want that. Somehow we have got to restrict the people. They do not know what is good for them, but we are wiser souls and we will decide that within, at least, some limits. The people will be angry if there is no result, but they will be angry if there is not full participation in any result that goes out. Under my model people can nominate, people can vote. Reserve powers are partially codified. I notice that the Bolkus model, which was withdrawn yesterday, also provides that, in spite of a flurry last week about that sort of principle. The conventions will be alluded to by reference per the Republic Advisory report. One of the things that always worried me about election processes such as this one, the earlier ARM one or even the present ARM one, is that an elected president has a great deal of freedom and independence of government, and that is undesirable. But what I am proposing puts the head of state on a short leash, very much like the Governor-General. He can be dismissed for proven misbehaviour or capacity by an absolute majority of a joint sitting of the parliament. I do not know why other models have left the Senate out. Whether we like the Senate or not- and I have no problem with it as a house of review- they are part of the parliamentary institution, they are elected representatives and they should participate. This arrangement means that the Prime Minister will have to state a case publicly. It means he will have to have a seconder supporting him and that those opposed to it will have to state their case of opposition. It will all be done publicly and reported. If it is done capriciously by the Prime Minister, he will pay a high price, if not because of repudiation by the joint sitting, at the very least by public will. The public are not fools. I was in parliament for 27 years and I got close to being defeated a couple of times, which I did not care for, but that was not our fault and the public were wise. When governments go out, they go out for good reason and, when new governments come in, they come in for good reason- because the public have a great deal of commonsense and wisdom. In this arrangement, any person tending to be a demagogue would be putting his or her head in a hangman's noose and, as a result, the consequences would be sudden and decisive. At least it is as effective as anything else proposed in the other models and more effective than most. Overall, it is better because it is not smugly precious like the others- not pretending that some group of omnipotent, wise custodians of the people's destiny will make choices for them about who they should vote for. It respects the people. I mentioned the misnamed Direct Presidential Election Group. This consists of a confabulation of politicians choosing a handful of candidates for general election- it is two-thirds of a joint majority. Gosh, what a ballot round that is going to be from time to time! What sort of horse trading is going to go on? What sort of indignities will the names that are before the place be subjected to? On the basis of the submission of names, how will the parliament ever be able to get through the truckloads and truckloads of names which come through? What this boils down to once again is that we have a quality test. What is the basis of the quality test? Who do politicians think they are that they are able to better assess the quality of someone else outside for a representative office? We are all very ordinary people. The trouble with a lot of us is that, when we get into parliament, we think there is something special and indispensable about us and we are pulled up with a sharp jolt from time to time by the electorate. What is going to happen is that the political parties will end up carving up this process between them. The McGarvie model is far better than the other three models, but it still has a problem. It is trying to substitute a constitutional council for the present system. That will be seen by the public as a front for the government of the day. It is not a convincing replacement for the sovereign. Frankly, no self-respecting Premier would allow his Governor to go on such a body as a precaution against some sort of contentious action the council had to take, such as a dismissal in sensational circumstances. It is a thin armour plating to deflect flak from the government. Then we have the ARM model with a new coat of paint- an unsteady variation on an old theme. We are back to a committee of wizards and warlocks drawn from our midst- people very much like ourselves, but we are scarcely representative people, I would suggest to you. Eventually, this wise body will choose a short list of candidates for consideration by the Prime Minister and the Leader of the Opposition. The single nomination will come from the Prime Minister and the Leader of the Opposition, but who says so? There is no certainty about that. The Leader of the Opposition may well have his own agenda.
CHAIRMAN- Your time has expired, Mr Hayden.
Mr HAYDEN- Can I say something about some of the other models?
CHAIRMAN- No, I am afraid you have run out of time. You will have to do it later.
Mr CLEARY- I second the motion. I have great pleasure in following Bill on this particular question of the direct election. I think the people outside- the real public- will be laughing and will mock this Convention simply because it has shown such a distrust of the people. It seems that the educated people here- not all the people, there are many good people who are saying decent things about the people- are imbued with this notion that the only people who have knowledge are those who are formally educated. Jennie George, who works in the trade union movement, would surely laugh at that proposition. Throughout history, where have people come from? Are the only people who have contributed to our history those who have been educated in our universities? That is the problem; it is the assumption that runs through all of this. Any number of people in this place would praise democracy and praise the people but, when it comes to the crunch about giving the people the vote, what do they say? `They can't be trusted, they don't have the knowledge and they aren't formally educated.' I said yesterday- and I will say this as politely as I can to a number of young people: just remember, there is wisdom in the community. The wisdom does not just centre in a university tutorial. You learn things in the course of life from many people. Someone digging a ditch somewhere can give you a great many understandings about the world. Eddie McGuire from the ARM would have to concede that. He runs a football show that is in praise of ordinary perspectives on the game. It does not have to have the analytical writers in there giving a treatise on the game. People have all sorts of perceptions. It is probably true that the place is just full of the old bourgeois notions about the ordinary punter. I think it is intriguing too the way the media has addressed this question. I see them up in the gallery today. In the paper this morning what are we told? The ARM puts a little bit of sugar coating on a nasty toffee, and what do the media tell us? `We now have a democratic process; we are going to do a bit of consulting.' So they wheel out the standard old figures to tell us what a grand, participatory model we now have under the ARM banner. You must be kidding. The only way you can have true consultation is to go to the people. Bob Carr, the Premier of New South Wales, known around the place for reciting American history- the great American tradition, the tradition founded on the notion that the people are supreme- gets up in this place and says, `Don't you dare trust the people. Trust me, I am wise. I am a politician.' What are the people outside saying? They are saying, `We don't want to trust you not because you are not a good person.' It is not that the people who occupy the halls of power are not good people. There are many good people, many thoughtful people. The problem is the machines dominate to such an extent that the intellect is just suppressed. You do not get a divergent thought. We have had more divergent thoughts in this place over the last seven days because the machinery has not dominated.
Senator BOSWELL- Why did the people throw you out at the last election?
Mr CLEARY- I accept the will of the people, Ron. The people voted against me at the last election, so be it. I just cannot understand why we simply cannot offer the people a choice. The other major point is that the ARM model at a referendum is highly likely to lose. I just cannot see it winning. I know the ARM people say that the machinery will be out and the parties will support it but I do not think the public will. I think the public will see it for what it is. This Convention has been a fabricated arrangement. It was set up from day one by the Prime Minister to get a particular outcome. The people know that. They are saying it en masse in their letters and their phone calls. If you sit here thinking that they do not know anything, you are committing a deep sin, Archbishop. Just to finish, someone wrote to Pat O'Shane:
I am a resident of the ACT who is increasingly disgusted with the manoeuvrings of the Convention. The only terms under which I would vote in favour of an Australian republic in a referendum are that the head of state is directly elected by universal adult suffrage and that the powers of the head of state are clearly delimited in an amended Constitution. It seems that neither of these conditions are likely to be met. If they are not, I will vote against a republic. I will not vote for a false god republic.
Brigadier GARLAND- If we have words on paper, we need to know exactly how they are going to be implemented. The question I have relates to the nomination procedure. We have suggested here that we have one per cent of the voters to endorse any one nominee. That is going to require between 150,000 and 180,000 people. That is not easy for most people to do. You would have to have some sort of party machine behind you to be able to get that number. The second thing is that no voter should be able to endorse more than one candidate for election. I am not quite sure how that is going to be implemented. Archbishop Hollingworth found that the first person in- Ms O'SHANE- On a point of order: with all respect, Mr Chair, the delegate is entering into debate.
CHAIRMAN- He has asked a question at the moment. I thought I would wait until he finished his question, then I will ask Mr Hayden to respond. Have you finished your question, Brigadier Garland?
Brigadier GARLAND- What I would like to know is how you are going to implement this proposal.
CHAIRMAN- The question is there. I ask Mr Hayden to answer.
Mr HAYDEN- Pat O'Shane, it is not that he is speaking a lot; he is a slow thinker so it takes a long time for him to express a thought. Of course people should be required to get a substantial number of nominees because this is an election for a national position as president of this country. One would hope, and I thought the implication would have been rather clear, that a person nominating would have some national status, whatever it might be. On checking the nominations, I should not have thought this to be a terribly difficult task with a properly constructed form with electoral roll numbers against names and so on- I think it is still done that way. It should be capable of being processed through a computer arrangement rather simply and quickly.
CHAIRMAN- Any more questions?
Professor PATRICK O'BRIEN- Mr Hayden, I support 100 per cent of the things you said but there is a question and one that confuses many people: you sort of indicated that you are a constitutional monarchist yet you have put up a model supporting what I 100 per cent support. Will you vote for your model?
CHAIRMAN- I think that is not necessarily a question.
Mr HAYDEN- Wait a minute, let me make a point. I do not belong to the constitutional monarchist group. I have never been to one of their meetings. I have never joined them. I have consistently said I stand for the status quo because I am worried about the implications of processes of change. Those worries are still there but I have no problem at all in voting for this. The dismissal procedure satisfies a worry I did have about a demagogue. But, if it is defeated, I am not going to vote for the other half-bred sorts of things that have been put forward because they are gratuitously offensive to the Australian public and what it rightly expects to happen.
CHAIRMAN- Professor Winterton, I suggest you ask a question. We are not really at the stage of debating. The last one, I am afraid, was a debate and I do not intend to allow you to make that sort of contribution on this model.
Professor WINTERTON- A question on dismissal of a president: Mr Hayden, how do you plan to overcome the problem of a Prime Minister who has been dismissed? I just wonder whether you might not simply provide that the parliament can dismiss, not require it on the motion of the Prime Minister, in case the Prime Minister is gone. Also, what do you think about the issue of convening parliament if it is not sitting and preventing its dissolution or prorogation?
Mr HAYDEN- I agree that is a deficiency. All the models, as I look at them, have deficiencies, as you have already pointed out in respect of the one presented before mine. I presume from what the chairman said earlier that whatever is chosen will go back for some sort of scrubbing up and refinement, and things like that can be taken into consideration. But it is a very important point.
Mr MOLLER- I ask one question: approximately what is the voting population of Australia? Is it between eight million and 10 million? I am trying to determine what figure would encompass one per cent of voters.
Mr HAYDEN- Mr Jones tells me 120,000. I figured 100,000 as a rough calculation.
Mr MOLLER- Speaking as someone from Tasmania, 120,000 would be over 25 per cent of the Tasmanian population, let alone the voting population. It is half the electorate so we would probably never see a Tasmanian president under this model.
CHAIRMAN- I hope the person might be known outside Tasmania.
Mr HAYDEN- Some of these special provisions and concessions are made for Tasmania. Someone might like to move an amendment: `except in the case of Tasmania, where only 0.005 per cent of the enrolled voters are required'. CHAIRMAN- I
call on Mr McGarvie to move his model. I remind each of the
speakers that motions have to be moved as well as seconded at the
appropriate time so that the model gets on deck. ·=============== Last updated: 21 October 2000 | |||
