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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 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?

 
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