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Constitutional Convention: Introduction  The Constitutional Convention of February 1998

Federal Election October 2004:
Which Candidates Trust the People?

TRANSCRIPT OF PROCEEDINGS
Thursday, 12 February 1998
Page 3

MODEL C

Mr McGARVIE- I move:

 

MODEL C

President chosen by the Prime Minister and appointed or dismissed by a Constitutional Council bound to act as the Prime Minister advises

 

In moving the adoption of model C, I make a comparison between that model and the model that I expect will be its main rival. What was called the Turnbull model but is now better described as the Turnbull camel model-

 

Mr TURNBULL- Never!

 

Mr McGARVIE- seeks to reinvent the basic unit of our system of democracy. Our ancestors a century ago were wise enough to retain the basic units developed in the states since the 1850s with their balance between governor, parliament, government and courts and joined them together in a federation with a similar unit for the Commonwealth. I repeat Bagehot's wise words:

 

What is unnecessary in Government is pernicious. Human life makes so much complexity necessary that an artificial addition is sure to harm; you cannot tell where the needless bit of machinery will catch and clog the 100 needful wheels; but the chances are conclusive that it will impede them somewhere, so nice are they and so delicate.

 

The Turnbull camel model reinvents not only one of the needful wheels but a whole host of them. Invented during the long night before last, the model has had no exposure while mine has been open to scrutiny for nine months. Their model has obviously been designed in a rush to get the numbers on the floor of this Convention, not to maintain the strengths and safeguards of our democracy for future generations.

Its fundamental flaws would see it confined to the wastepaper basket in a referendum and give impetus to the weakening of the bonds of our Federation as in Canada. Nominations are to be published. Overseas tabloids will have a field day with the more ridiculous of them. It transfers to the opposition final say on the president instead of the political responsibility staying with Prime Ministers who have exercised it so well. For the Prime Minister and Leader of the Opposition to reach their deal, it will have to survive the vetoes of the party rooms and will produce relative mediocrity.

Mr Turnbull has said, `No former active politician could conceivably be our head of state under the methodology we have proposed.' That would forfeit the advantage to the nation of such experienced people as outstanding governors-general Hasluck and McKell. Parliamentary election is to occur without debate. In this media powerful community there is bound to be a public inquiry, and anyway the debate will start in the media, the Internet and elsewhere as soon as a name gets to the party rooms. Baseless allegations of disgraceful conduct will get saturation media coverage as in the case of Judge Clarence Thomas's nomination to the Supreme Court of the United States. There will be many who, like me, would never allow their name to be put forward.

 

Senator FAULKNER- One down, 18 million to go!

 

Mr McGARVIE- Different kinds of people will become president than those who have been Governor-General. The Prime Minister's right of instant dismissal demeans the president to a position less than that of any base grade clerk. The misconception of 1975 that the Governor-General would have been dismissed instantly on a phone call from the Prime Minister to Buckingham Palace becomes the reality of this model with all its sorry consequences. The lessons of history of the unique advantages of decisions by one being implemented by another with the time for second thoughts and political sense to exert themselves were obviously overlooked during the long Tuesday night. The Turnbull camel model is a sadly misconceived one.

Delegates, I put to you that the model I support should be put to the people in the first referendum because it alone has, in reality, the capacity to resolve the republic issue. It should not have to wait for the second referendum after the scrutiny of a failed first referendum has revealed the flaws of the Turnbull camel model. That is the road to the Canadian impasse.

Mr Turnbull himself has said that my model is a `blindingly obvious minimal development. It is a perfectly sensible model if you start from the premise of having absolutely minimal change'. That premise is the safe one for democracy. Professor Winterton has said my model is not a republic. The Republic Advisory Committee said that `all that is required to convert Australia into a republic is to remove the monarch'. Agendas other than becoming a republic have intruded. The monarchists brought in their big guns last week to criticise my model with singularly little effect. Their prime complaint is that it is only the monarchy which keeps our constitutional conventions binding. That myth comes from reading English textbooks.

Any observer of Australia knows that, with our harsh constitutional and political culture, conventions are in practice binding here only if a practical penalty for breach leaves no real option but to comply. As the system, its operation and penalties remain the same in my model, the conventions remain binding.

We must not destroy the institution of head of state, which Australia has developed in the office of Governor and Governor-General over 200 years. We should heed the words of my distinguished predecessor as Governor, Dr Davis McCaughey, in his 1987 Boyer lectures. Walter Bagehot wrote:

 

`The characteristic danger of great nations, like the Romans or the English, which have a long history of continuous creation, is that they may at last fail from not comprehending the great institutions they have created.' That applies to the languages, the literature, the art and the music of people, and of peoples, as it does of the institutions of government, of the law, of commerce and of science.

 

With our institutions of government we must resist the tendency we have developed towards historic buildings, which that great Governor-General Sir Paul Hasluck identified when he said:

 

We have a lust to destroy in Australia. It is not that Australians are cynical- they are just unaware of what they are doing. They really think they are engaged on work of national progress and are unconscious of being on work of national destruction. What we need to spread throughout this land is the idea that before you knock something down you take a second look at it. We need to decide whether you knock it down or whether it is valuable enough to keep.

 

Delegates, I put it to you that you have faith in Australians, when the position is identified and argued before them, as it has only started to be this month, seeing the dangers to democracy in the other models and the safety to democracy of the model whose adoption I now move. We must all remember that the eyes of history and posterity will be upon each one of us for the way we vote today. We must put in our forefront those of future generations, unable to vote or be represented here today, whose democracy is at issue.

 

Professor CRAVEN- I second the proposal. I sense the mood of the Convention is not in favour of a harangue, so I will be brief. I am proud that I am standing here putting before you the model of this Convention which is the only model that is not a model attached to a faction. It has emerged as an idea rather than as a series of numbers. I am proud that I have no idea how many votes it has in this Convention, although I understand that if I get the person who has been doing the counting for Councillor Tully we actually have 170 votes out of 152!

I do not want to come before you and pretend- and I think I may be one of the first people to do this- that our model is perfect. There are no perfect models in this Convention. Those looking for the 100 per cent model are doomed to failure. We have copped our bit of ridicule. We have had the `three wise men'. Somebody else has now got the wizards and whatever it was.

 

Mr WADDY- The warlocks!

 

Professor CRAVEN- Yes, the `wizards and warlocks'. We will no doubt get the `wimps and the wallies'- they are all coming out. We can laugh at it too, but we know that, at the end of the day, it is a misrepresentation. The Constitutional Council is not the head of state. The head of state is not going to be some sort of geriatric goanna limping from crisis to crisis. It is merely a postage box for the appointment of the head of state- and that has been a misrepresentation of that model. It is a fair thing to say that the McGarvie principle, as I called it the other day, of dismissal of the head of state by the Prime Minister moving through parliament has been pretty well adopted in most of the other models. That is an unconscious tribute.

I put it to you that all the models have problems. We are going to have to work on it. The time for compromise, regrettably, is not yet over. The direct election people have never moved from their original position. They still cannot explain how it is going to work. The bipartisan model still has problems of whether it will actually be bipartisan. No doubt they can be worked on, but the McGarvie model still has one fundamental, lucid advantage. It is a simple, achievable republic. If the people are so in favour of a republic as we are told- and as I am inclined to believe- then they will vote for that republic.

I put it to you that it is a republic, and there is a simple test of this. We are, in a sense, metaphorically cutting off the head of the Queen. Someone else did that before- Oliver Cromwell. Was not Oliver Cromwell's Commonwealth a republic? If so, this is. I think we should remember that.

Nobody here can say that their model is going to win. I think this model should win, but if it does not win, if perchance it does not commend itself to the Convention, then I will look very carefully at the model that does win. I will look very carefully to see if amendments may be moved and if compromises may be reached. If that model is the one that we cannot call the ARM model and we cannot call the Turnbull model, but we may well be able to call the model of the bench of bishops, then so be it- I will look at the model of the bench of bishops.

However, I would say one thing: we must remember the dreadful consequences of stalemate. We must remember the dreadful consequences of not coming up with a model. As I have repeated again and again to this Convention, no doubt to the point of irritation, those consequences are five more years of constitutional destabilisation and then, I believe, constitutional catastrophe. That is not something that I am likely going to be driven to agree to.

Finally, I pay a personal tribute to Mr McGarvie as a person who has made a great contribution to this Convention, who has informed its deliberations, and who has done a very great thing for this Commonwealth of ours. I second the motion.

 

Mr WADDY- I rise on a point of procedure. I would have hoped that in the goodwill of this Convention and the traditions which we have established in the last nine days it would be possible for a professor or anybody else to address his arguments to the intellect of ourselves and the Australian people, without making extravagant remarks about the Queen. I will not dignify it by repeating it. It is irrelevant to everything else that has been said and I ask that it not happen again.

 

Mr BEATTIE- I might add, Mr Chairman, that I think we could do with a little less individual attack as well. Let me raise the issue that I am seeking clarification on. Mr McGarvie, when you referred to the model, you referred to it being the Turnbull-Campbell model. It is on the Notice Paper as being the `bipartisan appointment of the president' model. I am just curious as to who Mr Campbell is.

 

Mr McGARVIE- Not `Campbell', `camel'.

 

Mr BEATTIE- I see, it is camel.

 

Mr McGARVIE- Campbell is innocent.

Mr BEATTIE- I see. I am obviously reading too much of that London press you talk about.

 

Mr WRAN- Mr McGarvie, at the working party consideration of your model, you conveyed to us the upper and lower age limit for the members of the Constitutional Council. Could you remind me of what those limits were?

 

Mr McGARVIE- Certainly. I will give you the reason for them.

 

Mr WRAN- First of all, give me the limits.

 

Mr McGARVIE- The lower limit is 65; the other limit is 79. I know this draws derision from some of those in the younger generation who have nothing but derision for those of retirement age, but the reason is that they must be people who have retired from a permanent constitutional position so we will not run out of them. The lower age of 65 is to cover those who have not really served as judges, who have been judges for a year or so and then have retired. They would be cut out by the early retirement age. The other limit is for obvious reasons.

 

Mr WRAN- My second question is, in relation to dismissal, your paper reads:

 

The President will be dismissed within 2 weeks of the Prime Minister advising the Constitutional Council to do so.

 

What if the Constitutional Council refuses to do so?

 

Mr McGARVIE- Mr Wran, I expected some dorothy dixers, but not from you. There will be, as you will recall from reading my papers, an express provision in the Constitution, not legally enforceable but a clear statement, that the Constitutional Council is obliged to act on the advice of the Prime Minister. There will be a provision that, if the Prime Minister chooses to advise- we must remember that the word `advice' is used in a very special way in the constitutional context- that binding request is made in writing to a point, and the members of the council will be obliged to do so within two weeks or will be publicly dismissed for a clear breach of the Constitution. I am sure Mr Wran, who is a partly retired man at least, will agree with me that, when one reaches the age of retirement, to be publicly dismissed for breach of a constitutional duty is something that such people would avoid at all costs.

 

Professor WINTERTON- I have three questions, Mr McGarvie, if I may. The first one is you do not expressly provide for continuation of the conventions, but I presume that is a part of your model.

 

Mr McGARVIE- Professor Winterton, I am very glad to answer a question. I am sure that as my friend you will not mind if I describe you as the most monarchist republican I have ever met, because your notion of the conventions has also come from English textbooks, not from observation of what actually happens in Australia. Conventions apply in practice because they are backed by a practical penalty so that the person has no real option but to comply. Because the system will remain exactly the same under the model that I support, those conventions which are binding now will remain so.

 

Professor WINTERTON- Perhaps I can ask since they are conventions-

 

Mr McGARVIE- Is this another question or a second part of that first question?

 

Professor WINTERTON- Perhaps I could just ask my three questions if you do not mind.

 

DEPUTY CHAIRMAN- You have had one, so you can ask two more.

 

Professor WINTERTON- I can add another one. There is no rule that you are limited to three. I said three to start with but-

 

DEPUTY CHAIRMAN- No, but we need to move on.

 

Professor WINTERTON- I will be quick. One is really a supplementary question. Firstly, where is the problem in stating expressly that they should continue since the present conventions are conventions of the monarchy? Let me just finish the other two. Secondly, why no term of office? I think it would look very strange to people if the president does not have a term of office. I cannot see that it is incompatible with your model. Why not? Thirdly, how do you respond to the fatal structural flaw of your model that a president about to be dismissed can always dismiss the Prime Minister and end the whole process? How do you overcome that totally fatal flaw?

Mr McGARVIE- There is no need to make a statement that the conventions apply. That would bring the courts into the political process, and the worst thing you can do is to bring the courts into the political process. It would stultify the political process and it would do great damage to the courts. What you say about being able to dismiss each other was the misconception to which I referred in my main address. In practice, the assumption that there be immediate dismissal upon a prime ministerial phone call to Buckingham Palace is just plain wrong. The Queen has a right to counsel. The Queen has a right to seek information and to inquire. There would be a time delay. There would be time for the political process to operate, for the colleagues of the Prime Minister to bring pressure on the Prime Minister. So the position will remain exactly as it is, and that is entirely satisfactory.

 

Professor PATRICK O'BRIEN- A very simple and direct question, Mr McGarvie. With great respect to you and your position, do you think that the Australian people will ever be fit and proper to elect directly their own head of state? If so, when do you think that the Australian people will become fit and proper to do so? If you do not believe that the Australian people will ever be fit and proper to directly elect their head of state, why not?

 

Mr McGARVIE- I said the other day that the Australian people are a wise people. Being a wise people, they will be far too wise, when the implications of the direct election models are put before them, to throw out the democracy that we have inherited. That is the short and complete answer.

 

Mr VIZARD- Mr McGarvie, much of what you said was by way of contradistinction to what you termed the Turnbull camel model, which I think is an unfair naming. But, that being the case, I have a question on the McGarvie peacock model. The problem with peacocks is that they do not look at other things; they spend much of their time looking in the reflection of themselves.

 

DEPUTY CHAIRMAN- Less preamble to the question, please. We dealt with the preamble last night.

 

Mr VIZARD- The question is how, having regard to that, the lack of nexus with the Australian people and the fact that your model is built on the status quo, do you expect people of indigenous background, people of different gender, people from smaller states, to penetrate to the position of head of state?

 

Mr McGARVIE- I have had the advantage of talking to numerous citizens in three states and one territory about this. They understand the implications immediately. Unfortunately, the debate has been conducted in a way that did not introduce them to any. They have learnt more in the last month, and especially during this Convention, with the aid of the media, which deserves credit for it, than they did in the five years of the debate. They are very quick learners. They may not have written theses on political science, but history has shown they understand practical reality and they know Australians.

 

Dr SHEIL- Mr McGarvie, in your presentation you said you had taken high legal advice and been advised that all that was necessary to convert Australia to a republic was to remove the monarch. I put it to you that, if Mr Turnbull got on his camel, went to England and wiped out the entire royal family, it would have very little effect in Australia because the Crown is the operational instrument here, not the monarch.

Mr McGARVIE- Dr Sheil, you misheard what I said. What I said was: that is what the Republic Advisory Committee said was involved in becoming a republic. I agree with you, and I dealt with that in my response, you will remember, to Mr Tony Abbott. It does involve eliminating both the monarchy and the Crown and my model does that completely.

 

Mr TANNOCK- Mr McGarvie, I have two questions. The first one relates to the necessity for the Constitutional Council to accept the Prime Minister's advice- whatever that advice may be. What happens if the Prime Minister proposes, in this secret conclave, a Governor-General who is blatantly political in a partisan sense? Are they bound to accept it?

 

Mr McGARVIE- That is a very good question. It brings home something that is often overlooked in looking at the system that is usually referred to as the `articulated system', in which one with political power makes the decision, and others without political power implement it. In fact- and I speak with some experience, having been Governor; indeed, the experience of Amnesty International is an excellent example- when they are being looked at people tend to act more responsibly than if they are not. The council, like the Queen, would have the right to counsel the Prime Minister. If it was someone unsuitable, they could counsel.

A Prime Minister would be very reluctant to face the risk of being counselled by three people who have community respect that a particular person was inappropriate. Ultimately, if the Prime Minister insists, just as is the case with the Queen, the council would be bound to act on the advice, but the Prime Minister would have to accept political responsibility for that. Our history has shown that prime ministers have accepted and have acted with great discretion in exercising that responsibility as the elected head of the elected government.

 

Mr TANNOCK- I have one more question. The age range for members of this Constitutional Council is 65 to 79 and the ex-officio appointees according to their seniority, as I understand?

 

Mr McGARVIE- No, according to their date of retirement, most recent retirement- first priority.

 

Mr TANNOCK- Okay, but they remain as members of the Constitutional Council until they reach 79?

 

Mr McGARVIE- No. As you will remember from when you read that lot of papers I sent to you, what happens is that, except for the period during the time advice has been given and is still being acted on, it has a changing membership. No-one gets control of it because the most recently retired has priority. It is something that, in the ordinary course of events, it will only ever do anything about every five years. There are bound to be different people every five years.

 

Mr TANNOCK- What I am leading to is: what if they are physically unfit for office? Who determines that?

 

Mr McGARVIE- Again, you will remember from reading my papers that the High Court will have jurisdiction to declare beforehand that someone who would otherwise be eligible is unfit, in the ordinary way in which that can be done.

 

DEPUTY CHAIRMAN- At the end of the questioning, I propose that we bring on the fourth model.

 

Ms THOMPSON- Mr McGarvie, I have two short questions. Firstly, under `qualifications' you state that the president must be an Australian citizen, but otherwise no qualifications are specified. I assume you actually mean that the president must be an Australian citizen within the terms of section 44 of the Constitution or be entitled to vote or be aged 18 or something of that nature?

 

Mr McGARVIE- Anything unnecessary in government is pernicious, as I have mentioned. There is absolutely no need to do that. I want to get people here away from thinking like lawyers to thinking about the way a constitution operates. There is not a ghost of a chance of a Prime Minister recommending for appointment someone who infringes section 44. It is quite unnecessary.

Ms THOMPSON- The second question that I have is in relation to the temporary provision to allow a woman to be on your constitutional committee. Can you explain why you regard it as appropriate to have a temporary position for 30 years?

 

Mr McGARVIE- Yes. I was the original Chairman of the National Discrimination Commission on Employment and Occupation. In 1973, when we started doing our work, there was enormous discrimination in this country against women. There is still a good deal of discrimination, but the change has been dramatic. The community has seen that there is no justification for it. While I was governor, I went to many secondary schools and the schools that were most keen to talk about these issues and who often had the best understanding of them were the girls schools. The discussion was very often led by women. I am confident that, within 30 years, women will have caught up.

 

Ms THOMPSON- Mr McGarvie, some of us would argue that we would be confident that men might have caught up.

 

Mr McGARVIE- It is not part of my approach to treat women as second-class citizens. That is why it is temporary.

 

Mr BRADLEY- Mr McGarvie, as you are aware, many of the delegates here lack a willingness or a capacity to understand the distinction between a Governor-General as a constitutional head of state and the role of the Queen in the appointment of a Governor-General. How will you enable them to understand the distinction between your president and the Constitutional Council that appoints the president?

 

Mr McGARVIE- Mr Bradley, you are speaking about the moments before I started speaking. It has changed; they understand now.

 

Mr BRADLEY- That is great. I hope they understand the current system better now, too.

 

Ms RODGERS- Mr McGarvie, you said we should not bring the courts into the political process, but does not your proposed automatic formula quite possibly provide a Constitutional Council comprising three judges? In WA, we have had a retired judge as Governor and our Lieutenant Governor is the Chief Justice. Could this not happen under your formula?

 

Mr McGARVIE- They will only be retired governors and judges because it is essential not to have a conflict of interest between an existing position. You must not overlook the fact that, although some judges become governors, there will be other components. My predecessor was the head of a university college and a minister of religion. Sir Paul Hasluck, the greatest Governor-General we have had, was a journalist, a historian, a member of parliament, a minister and a governor. Practically never will it go beyond retired governors-general, governors and lieutenant governors, but you must have that full line because the system cannot operate without someone to fulfil the head of state role.

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