|
TRANSCRIPT OF PROCEEDINGS
Thursday, 12 February 1998
Page 4
The Most Reverend
PETER HOLLINGWORTH- Mr McGarvie, I have listened very closely
to your argument from the beginning to the end. This Convention
is greatly indebted to you for everything you have done. There
has been consistent misinterpretation of what you have said and I
think it comes down to the critical thing that I have not heard
an answer to. I suppose it is this business of ageism. Would you
consider an alternative option? For example, do they have to be
retired governors? Would it not strengthen the federal system,
for example, if serving governors were on the Constitutional
Council?
Mr McGARVIE-
Thank you for that question, Archbishop. The fatal error that was
made in India in the 1940s when they set up their state system
without having the state governors properly, practically bound by
binding conventions was that everyone assumed that those in
future would be liberal, relaxed gentlemen like themselves- as
the textbook writers say- and that they would comply with
conventions. It is enormously important to look at the
practicality of conventions being applied.
In India they made
the mistake that the one who has the right to dismiss is not the
state premier, not the chief minister; it is the president. That
has led to fatal error- I do not need to remind delegates of what
has happened at the state level in India. For governors who are
serving, it is their responsibility. The penalty that is imposed
on them is dismissal, but at the instance of the Premier. If you
had state governors exercising a function without it being bound
by a practical penalty, the system would be inclined to run amiss
in a country where political passions run as deep as they do in
Australia. For example, in relation to a president, it would be
the Prime Minister who, under my model, would have the effective
decision on dismissal, but the Prime Minister could not make an
effective decision about the dismissal of a state governor. As we
are catering for a century or centuries ahead when conditions
might change again, that would be, I regret to say, an
unfortunate deficiency which would come to be regretted as much
as the deficiencies in India.
DEPUTY CHAIRMAN-
Thank you very much, Mr McGarvie. Before I call Mr Malcolm
Turnbull, Brigadier Garland earlier this morning questioned
whether a response had been received to a point of clarification
that he sought from the Attorney-General. The relevant paragraph
appears at the bottom of the second column of the Hansard
report, at page 539.
I am advised by the
Chief Hansard Reporter that the Hansard log records the
following response from Mr Gareth Evans to the question: Yes. I
have noted the Hansard log and confirm that advice. That
response will be included in the final version of the official
transcript. I now call Mr Malcolm Turnbull to move model D.
MODEL D
Mr TURNBULL- I move:
MODEL D
Bi-Partisan
Appointment of the President Model
A.
Nomination Procedure
The
objective of the nomination process is to ensure that the
Australian people are consulted as thoroughly as possible. This
process of consultation shall involve the whole community
including:
. State and
Territory parliaments
. local
government
. community
organisations, and
. individual
members of the public
all of whom
should be invited to provide nominations
All
nominations should be published.
Parliament
shall establish a Community Constitutional Committee which shall
consider and propose a short-list of candidates for consideration
by the Prime Minister and the Leader of the Opposition. The
Committee shall:
This process
for community consultation and evaluation of nominations is
likely to evolve with experience and is best dealt with by
ordinary legislation or parliamentary resolution.
B.
Appointment or Election Procedure
Having taken
into account the report of the Community Constitutional
Committee, the Prime Minister shall present a single nomination
for the office of President, seconded by the Leader of the
Opposition, for approval by a Joint Sitting of both Houses of the
Federal Parliament. A two thirds majority will be required to
approve the nomination which shall be done without debate.
C.
Dismissal Procedure
The
President may be removed at any time by a notice in writing
signed by the Prime Minister. The President is removed
immediately the Prime Minister's written notice is issued. The
Prime Minister's action must be presented to a meeting of the
House of Representatives for the purpose of its ratification
within 30 days of the date of removal of the President. In the
event the House of Representatives does not ratify the Prime
Minister's action, the President would not be restored to office,
but would be eligible for re-appointment. The vote of the House
would constitute a vote of no confidence in the Prime Minister.
D.
Definition of Powers
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.
E.
Qualifications for Office
Australian
citizen, qualified to be a member of the House of Representatives
(see s. 44 Constitution).
F. Term
of Office
Five years.
The bipartisan
appointment model, unlike the one moved previously, has not
flowed from a single mind uncorrupted by the opinions of other
people, and if that is a fault, then so be it. The bipartisan
appointment model is genuinely the result of many ideas, many
people and an effort to accommodate many different aspirations.
Mr McGarvie in, I assume, a generous remark, described it as the
`Turnbull camel model'. It is certainly not the Turnbull model,
but I take `camel' as a compliment. Camels have great endurance,
are fleet of foot and survive in the desert long after other
animals have died of thirst.
I will speak briefly
about some of the other models. I have a quotation, which is very
pertinent, from Mr Hayden's excellent autobiography. He writes:
More to the
point, a presidential system based on a national election to the
office of head of state will result in more not less friction
than our system of political government. It is reasonable to
anticipate that this would happen more frequently in a
presidential system, especially where a strong national campaign
was successfully mobilised behind a charismatic presidential
candidate by one party while strong local campaigns gave control
of the houses of parliament to an opposing party.
These words have
always been of great guidance to me- as, indeed, have of all Mr
Hayden's thoughts, and I felt it important to share them with you
today.
I noticed that Mr
McGarvie cited as a merit of his model that it involved the
decisions of one being implemented by another- that is to say,
the decision of the Prime Minister would be implemented by a
constitutional council. He made it very clear in his remarks
today that, of course, the decision is the Prime Minister's, but
it is this council of genial retired governors- like Mr McGarvie,
no doubt- who will implement it. This, Mr Chairman, is a recipe
for immense confusion.
Most people will
think that the council actually appoints the president. If you
think that is drawing a long bow, if you think that ordinary
Australians will not be confused, then I would refer you to page
135 of the Hansard of these proceedings where Dame Leonie
Kramer, Chancellor of the University of Sydney no less, proceeds
to criticise the McGarvie model on the basis that the
Constitutional Council is not necessarily qualified to appoint
the head of state. Dame Leonie was mistaken, but if the
chancellor of the University of Sydney is going to be confused
and misled by this, how will ordinary Australians who are not so
well educated and astute and who have not been following the
debate so carefully react?
We republicans
believe that power should be exercised and seen to be exercised
by those people who have the responsibility. It is an utter
nonsense to cloud the issue and confuse people and pretend that a
group of wise, old men, and perhaps one woman, are making the
decision when in fact it is nothing more than a partisan
political decision. Those who advocate prime ministerial
appointment, with great respect to Mr McGarvie, and he is the
only person who has put a name to a model in these proceedings-
the only person- would be better emulating the practice of most
countries in the world that have non-executive presidents- that
is to say, presidents with similar powers to our
Governor-General- and have that person chosen by parliament. Why
would it not be a motion of the Prime Minister supported by a
majority of the House of Representatives?
The people understand
that the parliament manages the country. They understand the
Prime Minister is the head of government. Why not have a
transparent mechanism? Why not respect parliament? Why not uphold
parliament? Why confuse and muddy the waters with this
Constitutional Council? I am fully expecting that, if the
bipartisan appointment model survives the exhaustive ballot
today, somebody will move that instead of a two-thirds majority
it be a simple majority of parliament. We do not think that is a
better model than ours obviously, but at least it is transparent.
At least people will understand what is going on instead of being
bamboozled by this council. Anyway, that is enough of Mr
McGarvie's model. I will concentrate on the merits of the
bipartisan appointment model.
I would like to take
delegates firstly to the nomination procedure. I would remind
delegates that this is essentially a draft: all of these models
are drafts. If this bipartisan appointment model survives into
this afternoon, there will be every avenue open to this
convention to move amendments to finetune it, to refine it, into
something that the majority of the convention support. I would
ask delegates in looking at it not to be overly concerned with a
detail here or a detail there. The thing to focus on is the
principle.
What is the principle
of the nomination procedure? The principle is that the Australian
people should be involved, that the Australian people should be
consulted. Is it really so outrageous that people, community
organisations and state and territory parliaments should be asked
what their opinion is on an appropriate president? State
governments and territory governments are already consulted about
judicial appointments. This is a perfectly appropriate course of
action in a democracy.
There has been some
concern about our suggestion that nominations should be
published. Mr McGarvie suggests that this is an appalling
suggestion. During the work of the Republic Advisory Committee,
we spoke to Sir Zelman Cowan about this very matter. Sir Zelman
said that there would be no more dishonour in being nominated to
be head of state and not being chosen than there is dishonour for
an actor to be nominated for an Academy Award and not win it.
What possible dishonour could there be in that?
If a nomination was
published, if I, for example, nominated Mr Wran or Mr McGarvie,
no doubt when they were contacted by the press in the midst of
the hundreds of names there would be they would say with great
charm, `I am very flattered that Mr Turnbull has nominated me but
I will reserve my views as to whether I would be interested in
this appointment until I get a call from the Prime Minister,'
which is exactly what judges and barristers do today when their
names are floated as being potential judicial appointments. Let's
face it: this goes on now.
When Bill Deane's
term comes to an end there will be speculation about his
successor just as there was speculation about Mr Hayden's
successor. All we are doing is formalising a process and allowing
ordinary people to get involved. So we do not see any harm in
nominations being published. But let me say this: if that is a
big issue, it is not a die in the ditch issue for us if delegates
are concerned about it. Why? Because all the leading nominations
will be published in the press anyway. The only thing that this
ensures is that ordinary Australians who are not necessarily of
great interest to the media will get their names published.
We have proposed a
Community Constitutional Committee. Let me just outline the
principle behind that. The principle is that in the sifting and
assessment of these nominations which must be done- plainly that
has to be done- it should be done by a group of people that are
not a bunch of middle-aged men from Sydney and Melbourne. What we
are talking about is having a group which has women, indigenous
people, geographical diversity so there are people from the
smaller states- a recognition of the nature of our society. This
does not have to be a body of 100. It could be a body of 10 or 12
or 15. Plainly it cannot be too big. That is the core principle.
If you think about
it, what else would parliament do? Do you really imagine that in
appointing a group to assess these nominations parliament would
sit down and say, `Let's get seven, white middle-aged
Anglo-Celtic men from Sydney and Melbourne. Of course, they would
not.
Mr RUXTON-
Hey, hey, hey!
Mr TURNBULL-
Bruce Ruxton would certainly approve of that- in fact, he's
nominating. But, again, I would emphasise we should focus on the
principles. Lois O'Donoghue, Gatjil Djerrkura and I have spoken
about this morning. We are open to suggestions how this language
could be improved, refined or whatever. We, unlike others in this
room, have no pride of authorship in this document. This language
is as a result of discussions between Mr Wran and myself and
Gatjil and Lois. We are not pretending to be writing the great
Australian novel. We want to get some input into this, but I
think the principles are valuable.
I will just talk very
quickly about dismissal. We acknowledge that prime ministerial
dismissal is the best option. We have no argument with, if you
like, the principle of Mr McGarvie's proposal. Again, we feel the
mechanism to enshrine that principle is better effected by an act
of the Prime Minister ratified by a simple majority of
parliament. If there was great commitment to Mr McGarvie's
Constitutional Committee, if there was any role for it, the role
would be in dismissal but certainly not in appointment.
Let me just say in
conclusion, very briefly, that the key to this model is
bipartisanship. There is more to democracy than winner takes all.
There is more to democracy than 50 per cent plus one. We have an
opportunity here to improve the quality of our public life. We
have the opportunity to say that one public office in this
country shall be the result of cooperation between the two
leaders in our parliament that will have bipartisan support and
through those representatives the support of the vast majority of
the Australian people.
Dr O'DONOGHUE- I second
the proposal. I came to this Convention as an appointed,
committed republican but with an open mind about the model. I am
not a member of the ARM. But after receiving the 10 models
submitted on Tuesday, overnight I considered carefully the merits
and the benefits of each model and decided that the ARM model had
been significantly improved by adoption of a simple and
inexpensive nomination process for candidates for the presidency
that also had public participation. I believe this revised model
offers the best prospect for indigenous involvement in the
nomination and selection of candidates and the best prospect for
an indigenous candidate to succeed.
A number of us are
giving our support to the model that we believe will deliver the
best results for the widest range of Australians. This is not to
say that we are giving up on other aspirations or that other
constitutional issues are less important but, if we are to come
out of this Convention with something that has meaning and
something that the Australian people can begin to consider, we
need to give them something of substance.
The Aboriginal
delegates who support this model have listened to the debates,
attended meetings of delegates and argued in the corners and
corridors of this place from early in the morning to late at
night- like many of you. I have also spoken to members of the
community as they wait in the queues in Kings Hall and as they
leave. They have listened and understood, as they have listened
to debate in this chamber, and not too many of them support the
direct model.
We are acutely aware-
and I mean the Aboriginal people who support this- that many
things have been promised to our people and few things have been
delivered. By supporting this model of a head of state, we are
signalling that there needs to be progress sooner rather than
later. We need to be part of the process of change, having an
influence on it rather than standing back and waiting for the
perfect moment to occur. There are very few perfect moments and
we cannot afford to wait.
In our proposal, the
establishment of a community constitutional council can reflect
the diversity of the Australian people with regard to gender,
race, age and geographical representation. It is important to
have an open and transparent process. Our proposal picks up the
most important aspects of the direct election models which call
for greater participation by the people. In comparison, however,
our proposal is cheaper than a direct election model and other
proposed models. We also believe this revised ARM model- and I
understand there is to be further revision- is representative of
the people and, therefore, likely to receive favourable
consideration at a referendum.
I urge all delegates
to deliberate over these concerns and realise that this is the
best and most viable option that will meet the widest range of
our concerns for the selection of a new head of state. I commend
the bipartisan appointment of the president model to you and I
second the motion.
Mrs GALLUS- Mr
Turnbull, I understood you to say, and do correct me if I am
wrong, `Don't worry about the details, they can be worked out
later; trust me.' The only line you left out was, `Trust me, I am
a politician.' I do not think, at this stage, that that is good
enough. We do need a few details in this model.
My first question
concerns what you have left open: how many do you envisage will
be on this constitutional community council? Is it three, five,
15, 50 or 500? Do you have any idea at this stage what sort of
number you are looking at, or is this just to be worked out later
as one of those little details?
I have other
questions: how does parliament establish a community consultation
committee? You have just said, `Parliament establishes.' Is this
the Prime Minister, a majority of the House of Representatives,
two-thirds of the House of Representatives, two-thirds of a
sitting of the joint houses or does each party get to nominate a
few? What happens there?
You have said also
that the number of nominations will be published in the paper.
But I also understood you to say during your speech- and I may
have been wrong- that all the leading names would be published.
Could you clarify that? Will it be every name or just the leading
names? Could you tell me what sort of procedure of selection the
community council would undergo to sift through these 20,000 or
so nominations that it receives? Will it receive principles from
the Prime Minister or from the parliament? Will it be left to
itself to say, `Look, this guy looks like a good chap and the
other 19,999 don't'? What sort of procedure will be used to
select them?
Mr TURNBULL-
Thank you, Chris Gallus. The document- I don't know whether you
have had time to read it; I am sure you have been very busy with
parliamentary matters- says:
This process
for community consultation and evaluation of nominations is
likely to evolve with experience and is best dealt with by
ordinary legislation or parliamentary resolution.
I trust that answers
your question as to how it will be dealt with. We have great
confidence in the Australian parliament to be able to take on
board the principles here and, by a resolution of the House of
Representatives, by a resolution of both houses or by enactment
of special legislation, whichever is appropriate, to come up with
the appropriate model.
In terms of how many
people should be on the committee, I do not have an answer for
that. It is clear that a committee of 100 is too big and a
committee of three is too small. We have all been involved in
lots of committees. It plainly has to be a workable size. You are
grinning, Chris Gallus, but you are a member of parliament and
you seem to regard it as ludicrous for us to suggest that the
Australian parliament-
Ms O'SHANE- I
have a point of order, Mr Deputy Chairman. The delegate is
entering into debate. I understood that this part of the
proceedings-
DEPUTY CHAIRMAN-
I think your point is well taken. The question is just seeking
information. I think, too, that questioners will be well advised
not to be provocative and not to personalise.
Mr TURNBULL-
The point is that we have great faith in our parliamentary system
of government. We believe that the parliament is well capable of
working out a committee that recognises diversity appropriately
and is of a size that is workable.
In terms of
publishing the nominations, our proposal is that all nominations
be published. The point I made about leading names is that if you
were not to publish all the nominations, if you said that
nominations would not be published, the leading names would get
into the media anyway. By saying all nominations should be
published, all you are conceding is that people who are not
particularly newsworthy should have their nomination recognised.
As far as the
procedure for the committee is concerned, I would think that a
body of people that would sit on this committee would have a
pretty good idea of what Australians need in a head of state and
would hardly need direction from the Prime Minister, nor would it
be appropriate to get direction from the Prime Minister in
recommending a short list to the Prime Minister and Leader of the
Opposition.
DEPUTY CHAIRMAN-
There are a lot of questions and I would ask, if it is possible,
that people make their questions short and try to make them
non-provocative. You make your answers short as well.
Brigadier GARLAND-
In relation to the Community Constitutional Committee, I think we
need to know a little bit more detail. Can you tell us how long
people will be appointed and give us some idea of the numbers?
The second question relates to paragraph E, where you talk about
reserve powers incorporated by reference. Would you explain what
you mean by that and how you are going to do it. The next
question relates to paragraph E, where you have said, `Australian
citizen qualified to be a member of the House of
Representatives'. Why has the Senate been left off their list; is
that just an omission or was there some reason for leaving the
Senate out? Do you intend, in this particular model, that there
will be any gender balance in relation to the appointment of
heads of state; that is, a male, a female, a male and a female?
Could you spell that out for us?
Mr TURNBULL- I
would refer you to my answer to Ms Gallus. As for the number of
people on the committee and its term of sitting, plainly it would
only sit when there was a need to appoint a president. It would
sit, presumably, every five years or thereabouts. As for the
number of people, I think that would be best dealt with by
parliament. There is a lot of consideration that can go into
that. As I said, I think you have to balance the need for
diversity versus the need for workability. I think it is a
commonsense issue.
As far as the
definition of powers is concerned, you asked for an explanation
of incorporation by reference. The sort of language that we and
everyone here who has referred to that concept is talking about
is language in the Constitution along these lines:
The
president shall exercise his or her powers and perform his or her
functions in accordance with the constitutional conventions which
are 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
those conventions.
I have spoken to Mr
Williams, the Attorney-General, about this. We would also refer
the government, if this motion were to go through this afternoon,
to what I would call the non-contentious parts of the partial
codification model on pages 102 to 105. What I mean by the
contentious part is the section headed `Constitutional
Contravention', which is an innovation for which I think it is
generally felt here that there is not sufficient support. Many
also feel there is not sufficient need for it to be incorporated
in the Constitution.
Mr RUXTON-
Gender balance?
DEPUTY CHAIRMAN-
Gender balance is in the text.
Mr TURNBULL- I
am sure the committee will take that into account, Brigadier
Garland.
DEPUTY CHAIRMAN-
It is in your text.
Mr TURNBULL-
Yes, I know it is.
Mr GUNTER- I
raise a point of order. At what point was it proposed to move on
from questions on this particular specific to the general debate?
DEPUTY CHAIRMAN-
I make the point that we had nine or so questions for the
McGarvie model. There are about an equivalent number of questions
here. The current list is: Kevin Andrews, Senator Stott Despoja,
Mr Bullmore, Mary Kelly, David Muir, Geoffrey Blainey and George
Winterton. If you want me to I can draw the line there. I will
put in Kerry Jones and I will draw the line there. Then we will
go on to the general debate. It is obvious that many of the
issues that will be canvassed in the general debate are being
dealt with now in a fairly efficient way.
Mr ANDREWS- Mr
Turnbull, I am surprised that, after five years, we have very
little detail and we are being told that we should be trusting of
the process. It is a bit like that old line, `I will still
respect you in the morning.' What happens when you do not get a
two-thirds vote? Is this process allowed to go on? Can a joint
sitting of parliament suspend its deliberations on the matter?
Where is the end of this?
Mr TURNBULL-
That is a very good question, Mr Andrews. Again, I am surprised
that a second member of parliament seems so unwilling to
recognise that parliament has the capacity to incorporate these
principles into legislation.
Mr ANDREWS- It
is a question, give us some detail.
Mr TURNBULL- I
am answering the question. I am giving you the detail. As all
delegates know, we have already agreed that a casual vacancy in
the office of president would be filled as is the current
practice by the senior state governor. If the Prime Minister and
the Leader of the Opposition were not able to agree on a new
president, then all that would happen is the senior state
governor would serve as administrator until they did. No doubt
public opinion would in due course compel them to grow up and
agree. But there is absolutely no vacancy in the office or lacuna
or anything like that.
Mr ANDREWS-
This is my second of three questions. You say, Mr Turnbull, in
the proposal that `a two-thirds majority will be required to
approve the nomination which shall be done without debate'. Why
should not the parliament be entitled to debate the person who,
after all, is to represent the people and this is the way in
which the people are having some say in the choice of the
president or head of state? Why should that be refused? Secondly,
even if that inquiry cannot occur, when the 10 nominations are
put forward, what is to stop the parliament or a committee of the
parliament, at that stage, carrying out, of its own volition, an
inquiry into the suitability of those nominations before it even
reaches the Prime Minister's stage of the process? Do you accept
that such an inquiry can occur? If so, how do you then avoid the
Clarence Thomas type of situation?
Mr TURNBULL-
It is perfectly obvious that an inquiry of the kind you refer to
could not occur without the support of the government or at least
the opposition. What we are proposing is a mechanism whereby a
constitutional committee-
Mr ANDREWS-
Can I just interrupt and say that Mr Turnbull is having a go at
me. He should know that parliamentary committees can initiate
inquiries of their own volition, particularly in the Senate.
DEPUTY CHAIRMAN-
This is something you can raise at the debating phase.
Mr TURNBULL- I
would like to answer the question without being hectored by Mr
Andrews. The underlying concept here is that the Prime Minister
and the Leader of the Opposition agree on a single nomination.
There is no debate simply because by doing that you ensure there
will not be the sort of character attacks or criticisms of that
single candidate. That is done to protect people's reputations.
It is a standard procedure in many other constitutions for
parliamentary appointment.
As far as the issue
of a committee having an inquiry into the morals of a potential
candidate for president, they could do that today, if they chose,
for a potential candidate for the office of Governor-General or
indeed a candidate for the bench. The fact is that, because the
government and the opposition agree, does anyone seriously
suggest that any parliamentary committee could conduct an inquiry
into anything without the support of either the government or the
opposition?
Professor PATRICK
O'BRIEN- If you have a real parliament, yes, but not the
poodles that you want, Mr Turnbull.
DEPUTY CHAIRMAN-
You will have plenty of time to repeat those lines no doubt at
length in the formal debate. Do not do it now, Professor O'Brien.
Mr ANDREWS- My
final question is: before we get to the panel of 10, Mr Turnbull-
DEPUTY CHAIRMAN-
Can you not raise these points as matters of debate? They are not
seeking information.
Mr ANDREWS- I
am, Mr Chairman. We have been provided with no detail of this
model. If Mr Turnbull seriously expects that we as a Convention
are going to vote for a model when he cannot provide us with any
detail that speaks for itself. If that is the situation, I will
sit down now because there is no detail.
DEPUTY CHAIRMAN-
You are not now asking a question, you are debating.
Mr ANDREWS- I
will ask a question, if I can get on with it. My question is
this: Mr Turnbull, in this bipartisan system, will there not be
politicking and lobbying in relation to the appointment of the
Constitutional Council and then the activities of that council or
committee in relation to coming up with the 10 names? Will that
not occur?
Previous Page
Next Page
·===============  ===============·
Last updated: 21 October 2000
| 
