The Foundation for National Renewal   The Constitutional Convention of February 1998

Federal Election October 2004: Which Candidates Trust the People?

TRANSCRIPT OF PROCEEDINGS
Thursday, 12 February 1998
Page 5

Mr TURNBULL- I imagine that there will be discussion by whatever process you have to consider nominations which will come up with a short-list or even perhaps a medium list. But at the end of the day, the Prime Minister and the Leader of the Opposition will agree. I am sure Mr Beazley, as the Leader of the Opposition and a potential future Prime Minister, will be able to enlighten you that leaders, at least in this parliament, are a little bit more responsible than you are suggesting.

Senator STOTT DESPOJA- I have two quick questions. I recognise this is a bipartisan model. Are you prepared to make it a cross-party model? In the nomination stage, will you include, with the Leader of the Opposition and the Prime Minister, the leaders of any parties with party status in the federal parliament?

Mr TURNBULL- We could certainly take that on board. I would be concerned that that might make it too cumbersome. If you sought to move that as an amendment, you could do so. My own off the cuff response would be that I think, realistically, that could make the process too cumbersome. There is a certain simplicity about what we have proposed, which I think has a deal of merit, although I recognise the special position of the Australian Democrats in regard to your remarks.

Senator STOTT DESPOJA- My second question is in relation to dismissal proceedings. I understand that the Prime Minister has the power to dismiss the head of state in written notice with 30 days ratification by the parliament. I note that, if the parliament does not ratify the Prime Minister's action, the head of state still cannot be restored. I acknowledge reappointed but not restored. Is there an issue of natural justice here?

Mr TURNBULL- Not really. I think the point is that, if the president is dismissed, he or she can be reappointed. If the Prime Minister has acted without the support of the House of Representatives, it is undoubtedly the end of his or her political career and then it is really up to the new Prime Minister and the Leader of the Opposition to decide whether they want to reinstate the president. I think there would be something unseemly with someone being removed and then waiting at a Colombey-Les-Deux-Eglises in the Australian bush to return to power 30 days later. Obviously, they are eligible for reappointment.

Mr BULLMORE- Mr Turnbull, as you moved your bipartisan model, you quite passionately deliberated that it would be absurd if the people were not consulted. Could you please explain how you intend to consult the majority of the people without a direct election?

Mr TURNBULL- You consult people by asking them to express their views- in the normal way that the community is consulted by different groups, governments and so forth. Direct election is not the only way to ascertain community opinion. A lot of people may not have a view or an opinion on who should be the president. Why should they be forced to express a view in this context? It is perfectly possible to achieve widespread community consultation without the formality of an election, as you know.

Mr MUIR- Mr Turnbull, in relation to this model, apart from the two-thirds parliamentary majority, which has always been a part of your position, the balance of it appears to have been cobbled together very quickly and there are some vague concepts where I need some clarification. There are three issues. In the nomination procedure, you speak of the process of consultations. That is the first one. Then you say that parliament shall establish a community constitutional committee, and then in the appointment, you talk about `having taken into account the report, the Prime Minister shall present one nomination'.

If I could just go back to the first one, the process of consultation, it is not clear what that means in relation to what you have established here. People can attribute to the word `consultation' all sorts of meanings, and in fact it could well be a meaningless concept. In relation to the parliament establishing a community committee- and I need clarification- does that mean that the parliament shall appoint each of the committee members? Lastly, in relation to the Prime Minister taking into account the report of the committee, does that mean that the Prime Minister not necessarily follows the recommendation of the report?

Mr TURNBULL- We approached this from a pretty commonsense point of view, Mr Muir, and we asked ourselves, firstly: if you were to go to the people and consult- go to state parliaments, go to territory parliaments, go to community organisations- and solicit their views, you would obviously get a wide range of opinions. Plainly, there has to be a mechanism for processing them. That could be done by a couple of distinguished members of the civil service in the privacy of an office in a government building here, but I think it is more likely that a committee of some kind would be established to assess them and prepare a short list, prepare some recommendations or whatever.

So we asked ourselves, having established that commonsense would suggest a committee would be established, what should that committee look like? That is why we are expressing the principles that the committee should reflect the diversity of Australia in terms of geography so smaller states and the bush are not left out, in terms of race so indigenous people are present at the table, in terms of gender so it is not all men, and so forth. I think this is just a matter of commonsense. I am not troubled by the thought that parliament will be able to put this into a workable framework consistent with these principles.

Mr MUIR- I still have no clarification. Will the parliament appoint each of the committee members?

Mr TURNBULL- What we would suggest is that the committee be appointed by a resolution of the parliament, yes.

Mr MUIR- So the answer is yes?

Mr TURNBULL- The answer is yes.

Mr MUIR- Thank you. The process of consultation is still pretty vague.

Mr TURNBULL- Consultation with whom? There is consultation with the Prime Minister and the Leader of the Opposition. Do you mean with the people?

Mr MUIR- It is in this. I am asking you what you mean by `The process of consultation'. Can you explain what you mean by that?

Mr TURNBULL- The process of consultation, at least as I understand it, is soliciting people's opinions, discussing them with them, giving them feedback, having a discussion in exactly the same way as all of us do in our lives in endeavouring to shape public opinion or influence or whatever. You talk to people and consult. You do not just lecture them; you do as much listening- and that is what would happen.

Mr MUIR- I still have a very vague notion of what you mean by that. The last point, which I still do not have an answer to, is whether the Prime Minister can, under your model, ignore the report of the committee?

Mr TURNBULL- There is no question. The Prime Minister and the Leader of the Opposition could in theory turn to the committee and say, `We utterly reject your suggestions; they are all bad and we are going to appoint someone else.' But, if you think that is politically realistic, frankly, I think you are dealing with fantasy. The reality is that the committee would produce a short list of people that they would regard as being qualified, and the Prime Minister and the Leader of the Opposition would agree on at least one, and that person would be nominated.

Ms MARY KELLY- My question is about powers. It was part answered by a previous question, but I want to make sure I have it right. It is prompted by the strange brevity under what is the definition of powers compared with the thorough detail that was in earlier models. By codification, do you mean the Republic Advisory Committee general drift minus section 5A?

Mr TURNBULL- What I mean is the Republic Advisory Committee partial codification model, pages 102 to 105, minus clause 4, which is the clause relating to the head of state having the ability to seek an advisory opinion from the High Court. That is a contentious one. It is perfectly plain there is not sufficient support for it here, or indeed recognition for there being sufficient need. The balance of the provisions in that partial codification model are absolutely non-contentious, as far as I am aware.

I have spoken to Mr Williams about it. I think we should simply refer to the parliament as a reference point. Again, as we said in that report, drafting is an art not a science. The principle is that the non-contentious rules relating to the exercise of the head of state's power should be spelt out in the Constitution for the purpose of clarity. Where there is an area of reserve power in that field of constitutional convention, that is incorporated by reference.

Ms MARY KELLY- So with that suite of things, that would allow the premature dismissal a la 1975 to still occur?

Mr TURNBULL- It would indeed.

Professor BLAINEY- Can I ask Mr Turnbull a question about the vital dismissal procedure, which I think is relatively new in the form we now have it. My worry is that if a situation like November 1975 should occur again, under this model, if I understand it correctly, the following would be the course of events. Let us say that parliament is not sitting and the Prime Minister decides that the president should be dismissed. Under this formula, it can be done with great speed. Presumably, there is an acting president- and I am not fully clear who is the acting president-

Mr TURNBULL- I will answer that.

Professor BLAINEY- or what prestige he or she would have in such a delicate and vital crisis. What is more, under the proposal, parliament does not have to be recalled for 30 days in order to resolve or sanction the action of the Prime Minister. I therefore wonder whether, with political passions already running high, the country might be in a very dangerous state indeed.

Mr TURNBULL- Professor, thank you for allowing me to highlight a very important merit of this proposal. It is widely regarded here that, although dismissal is a very remote possibility- it has never happened- it is something that we have to cater for. It is widely felt that the Prime Minister must have the right to dismiss the president. That is to say that if the president and the Prime Minister cannot get on, the Prime Minister must prevail.

That is certainly the case at the moment. If the Queen is advised by the Prime Minister to dismiss the Governor-General, she is bound to do so. This mechanism recognises that in a transparent fashion, but- and here is a very important point- at the moment the Prime Minister can recommend to the Queen that she sack the Governor-General and appoint one of his cronies, stoolies, buddies or whatever in his place.

Under this model, the president may be dismissed but the Prime Minister cannot appoint a replacement of his own motion- that can only be done with the agreement of the opposition- and, in the interim, the senior state governor, over whom the Prime Minister has absolutely no control and has had no role in the selection of, stands in as administrator.

So you give the Prime Minister the power to remove the president, but you retain the integrity of the office. You can remove the man or the woman, but you retain the independent integrity of the office because a replacement cannot be effected on the sole say of the Prime Minister. With great respect, delegates, I believe that that is a considerable virtue of this proposal.

Professor BLAINEY- The other question was: given the high excitement and the near chaos in the 30 days, I wonder if you would consider a reduction of that period?

Mr TURNBULL- I would suggest you move that as an amendment, Professor Blainey, and we will certainly take it on board.

Ms SCHUBERT- I move a procedural motion that, in light of the time ticking away that we still have left to debate all the models across the board, we now move into debate about the substance of the models, rather than continuing this discussion.

Motion carried.

CHAIRMAN- I propose to identify the way in which we are now going to proceed. We have a large number of people who have their hands up. Mr Turnbull suggested, and I think I am inclined to agree, that we probably need to go through for at least an hour on this general debate. We had proposed to allow five minutes but I think it might be better if we allowed three minutes. I urge delegates to try to keep their remarks within that three minutes. We will start our voting at 12.15 instead of at 12 o'clock- that will give us a full hour. Yes, Dame Leonie?

Dame LEONIE KRAMER- Could I please seek leave to make a correction to a remark that Mr Turnbull made which related to me?

CHAIRMAN- Certainly.

Dame LEONIE KRAMER- In his criticism of the McGarvie model, he had me saying some things which I did not say, and all I would like to do here is to refer him to pages 135 and 136 of the transcript of proceedings in Hansard on 4 February.

CHAIRMAN- I have a few people who have had their hands up. I call Ms Pat O'Shane first, to be followed by Mr Lloyd Waddy.

Ms O'SHANE- I rise to speak in support of the direct election model. The people of Australia do not want `just a republic' as proposed in the McGarvie model. Our fellow Australians want democracy. We, the people of Australia, can only have a truly democratic system of government through a democratic republic: that is, a system of government in which the people's will is supreme.

The direct election model proposed by our team, moved this morning by Geoff Gallop, delivers such a model. You will note, Delegates, fellow Australians, that, under our proposed model, nominations for the head of state may be made by any Australian citizen qualified to be a member of the Commonwealth parliament and by all of the levels of representative government in this country- the Senate, the House of Representatives, state and territory parliaments and any local government- obviously a process of direct involvement of the people.

Millions of Australians have stated their desire for this republic. More particularly, at this very moment, they say they want the option of a popular election for head of state. In the course of the past week, we have received hundreds of faxes, letters, e-mails and telephone messages, letting us know this, not to mention Newspoll, the Morgan poll, et cetera, which politicians and other conservatives try to scornfully dismiss. The direct election model which we propose delivers the goods. You will note that, in our proposal, the election of a head of state shall be by the people of Australia, voting directly by secret ballot with preferential voting by means of a single transferable vote.

Hundreds of thousands of our fellow Australians want reconciliation between indigenous and non-indigenous Australians. The direct election model proposed by our team allows reconciliation to advance. Only through a direct election model will Aborigines and Torres Strait Islanders have a real opportunity to participate in the process of creating the head of state. Under other models, Aborigines would only be able to participate in the time-honoured paternalistic way, that is, by the grace- not always gracious- of the elite. I have to say on this floor that I sorrow for the proposal put up by my fellow Koori Lois O'Donoghue this morning when she proposed what she did, given that it was only a few days ago that she stated that ATSIC elections be conducted only by direct election.

CHAIRMAN- Thank you, Dr O'Shane. I have a long list of people. I am trying to give everybody a go and I am trying to pick them from different sides and different factions. I have quite a number of your names down, but I have too many down at the moment to give you all a position.

Mr HAYDEN- Mr Chairman, I raise a point of order. I noticed before that the clock is not giving speakers five minutes. It is cutting it short by about a minute. It is down to about 2* minutes.

CHAIRMAN- It is three minutes now, as I announced a while ago, Mr Hayden. I suggested that, in order that we can accommodate as many speakers as possible in the hour that is available, for this purpose we allow three minutes. At the end of it, each of the proposers of the motion will be allowed another five minutes to respond in any way, if they wish to do so.

Mr WADDY- The house is presently engaged in discussing four models to reduce it to one, and then this afternoon that one model will be put under immense scrutiny when any part of it may be amended by the movers or by those sponsored by 10 people. We, who are opposed to any of these models, rise to deny the statement made by Professor Craven earlier that there are no perfect models in this Convention.

On the whole, I think any unbiased observer would notice that what is going on at the moment in all the models is to give the new creature, president or whatever you call him eventually the same powers as the Governor-General. All this debate so far is about who you can trust to appoint him and who you can trust to get rid of him and who you can trust to get on the list and who you can trust to work out who might do that. Of course, in the present system there has never been a crisis of trust. The Prime Minister is trusted to nominate a statesman and always has done so; the Queen has always appointed the person nominated, and none of these issues arise at all.

In the Gallop model, we are confronted with Dr Gallop saying, `We are creating a new political institution.' So symbolism has gone from day one. He is completely clear that he is creating a new political institution. We are living in a new era. This is the era of new politics.

The Hayden model is designed if you can get 120,000 signatures- and he could not get eight for his model- and Australians for Constitutional Monarchy in four years has three times the membership of the ARM, and we got to 20,000 in five years. He said, `A demagogue would be putting his head in the hangman's noose.' Let me remind the house that it is to protect ourselves from a demagogue getting away, that we or you are trying to create, that all the confusion arises. No-one has anything to fear from the Queen of Australia, and no-one has ever suggested it.

Under the McGarvie model, it is designed by four gentlemen and ladies to work on an honour system of people who will protect their reputations. It strikes away the monarchy and there go all the conventions. It exists on hope; it is hopelessly elitist, and I do not think it will receive much support.

The Turnbull camel-O'Donoghue model is key to bipartisanship. No-one has mentioned that bipartisanship depends on how you fiddle the electorate. Before we had proportional representation, there were many majorities where there would have been one side of parliament appointing against the other. You are confusing politics with the legalities of the state. At the moment the Governor-General acts above politics. All your systems are bringing politics into it. I thank the house for the indulgence.

Mr SAMS- Mr Chairman and delegates, I want a republic for this country and I want it soon. It is why I have supported and signed model D, the O'Donoghue model. If you do not want a republic, which a lot of people here do not, then vote for a model which will not be supported by the major political parties and will therefore be doomed to failure. If we entrust our parliament with the enormous responsibility of governing our lives and making laws for the governance of this country, why is it so wrong that we cannot entrust them as our representatives with finding and selecting a symbol of national unity as a ceremonial head of state?

Surely the argument that we need a popularly elected head of state would have more force and consistency if we applied the same principle to the Prime Minister, and no-one seriously has put that proposition. Ask the punters out there if they would like to elect their Prime Minister, and I guarantee you that you will get the same result as you will get for asking them if they want a popularly elected head of state.

I am not one who is spooked by opinion polls. Get any pollster to ask the right question and you are guaranteed to get the answer you want. I have, like Peter Beattie, a great faith in the Australian people that, when the arguments are put, when the debate is had, when the arguments are developed, they will readily appreciate the dangers of what is now seemingly so popular. On the subject of opinion polls, I was astounded when some delegates the other day were trumpeting the Newsweek poll showing that Australians supported by 56 per cent a popularly elected president. Last week we were told that support was as high as 70 or 80 per cent. I would have thought that a collapse of that magnitude was more a cause for mourning than for celebration.

Those who argue for a popular election say that any Australian should be able to seek and secure the highest office in the land, whereas parliamentary election will produce a politician from politicians. I reject this view absolutely. Popular election will restrict it to an elite group of people, an elitist group of people, and I believe we would not see an Aboriginal appointed, we would not see a migrant, not see a scientist, not see a journalist and, dare I say, not see a trade union official. Most certainly you would not see anybody from outside New South Wales and Victoria. We all want a right for any Australian, no matter what their birthright or financial means, to have an opportunity to achieve the highest office in the land. Popular election will deny that.

This is the time for real leadership. This is the time that we are called upon to make a decision. It is not the time for platitude and rhetoric. It is not the time for this country to go down the path of popular election. What will history think of us if we allow this Convention to be used as a publicity stunt or a platform for grandstanding? I say: do not condemn the republic to the drain of history by supporting a model that has no chance of support from the major political parties and therefore no chance of survival at a referendum.

Ms MARY KELLY- I want to talk about the relative and absolute merits of the direct election model and in doing so make some comparisons with other models. I think ours has got about five clearly superior characteristics. One of them is in the eligibility clause, where we appear to be the only group that has dealt with the current unfair provisions about dual citizenship. We ask that where people have forsworn allegiance to a foreign power that be sufficient. Secondly, on the nomination process, we listened when people said that there should be a role for parliament; we listened when people said that direct election is too broad and messy. Everyone is involved in our process. The more diverse sources of evidence you have, the less likely cloning is to occur.

But mostly it is about powers. I am astounded that the new ARM model has squibbed on section 5A, on codification of powers, and left intact the possibility of the only known crisis we had, which was in 1975. We have not squibbed. We did listen when people said, `No, we do not want to strip the Senate of the power to block supply.' `Okay,' we said, `but we had better tidy up what happens afterwards so it is not left open as it has been in the past.' Our tidying-up way of doing that was to say, `Yes, the new President Governor-General can still dismiss, but not alone in a premature or absolute way. They have to seek some advice, and so on.' That is what is in section 5A, and that is what has been left out. I think that is actually a significant betrayal of what people would expect from a codification of powers.

The second last point is that ours is winnable. That is not its main strength, but I still believe that out there in the community any model that has direct election in it will overcome other models. But mainly I think its absolute merits lie in the fact that it has the best chance to harness that civic energy that is out there that is exhibited in the desire for direct election, to say to people, `Lessen your alienation- re-engage with the process.' That is our common quest and it has the best chance to do that. It not only gives people what they want; more significantly, it gives them what they need.

Mr RUXTON- Mr Chairman and delegates, when I got out of the unit this morning and saw this headline- `Mr President'- I thought, `Oh my God, they've elected him!' However, it seems to me that the rift is just as bad as it was yesterday and last week. I want to speak about the Gallop method quickly. First of all, in relation to the nominations, I think they can scrub B and C; A is enough. With regard to short listing and a two-thirds majority of both houses choosing three candidates, I believe that a two-thirds majority on political lines has only been achieved about three or four times since Federation, for goodness sake! Then Mr Beattie went on about politics influencing referendums. I will have you know that I have seen both parties- both Liberal and Labor- lie in bed together to change the Constitution, and they have still been dudded.

In relation to the Hayden model, its weakness is of course one per cent on a petition. That means that the person would have to get 120,000 signatures at least, and I think that is nigh impossible. Money and politics would come into it. In relation to the McGarvie model, any Australian can nominate to become the Governor-General for the Prime Minister to appoint. Couldn't you imagine chaff bags of mail going down to Dick Pratt's Visy Board for goodness sake? Also, Professor Craven mentioned Cromwell. That is all right. He was the first President of the United Kingdom and look what he did in Ireland, if you don't mind. Then there is Mr Turnbull- the Godfather. Ninety-seven years have passed and there have only been four times when there has been a two-thirds majority in the parliament.

We will have general nominations from everywhere, and again they are going to come in from everywhere. Then a community constitutional committee is going to select them. I tell you what, that is where I become very suspicious. You would be better off with the RSL. All of these models have deliberately left out section 5 of the Constitution. In my book, it is the only safety valve for the people of Australia where the president or the Governor-General may prorogue the parliament or dissolve the House of Representatives. Now you are going to codify all of this business, different sections of some constitutional committee that has been held in the past.

I go along with Kevin Andrews. When that nomination from Mr Turnbull's model goes before the parliament, there will be one candidate and no debate. Oh, for goodness sake! I have never heard anything like it in all my life. I tell you what, after all I have heard this morning, I have come back to the conclusion that you are destroying the best system on earth. We are the freest country on earth. It is no good mentioning the United States of America. That is no good at all. They murdered their presidents and other people. Thanks a lot.

Mr BEAZLEY- Bruce, I have here Cromwell's shilling. It says `Commonwealth of England'. When are you going to campaign against the title of our republican nation?

Mr RUXTON- I am going to be campaigning against you!

Mr BEAZLEY- You always have and I am still here. Mr Chairman, I would like to lend my support to the bipartisan appointment of president model, which I signed on to yesterday, which I think is a very good one. Can I just remind all delegates here, particularly on the republican side who are advocating various different models-

Professor PATRICK O'BRIEN- Mr Chairman, I raise a point of order.

CHAIRMAN- Must you, Professor O'Brien?

Professor PATRICK O'BRIEN- Yes. Correct me if I am wrong, and if I am wrong I apologise, but there are many people who had their hands up. I noticed that Mr Beazley walked up to you a moment ago and talked to you and you were writing with your pencil-

CHAIRMAN- He is the alternative Prime Minister of Australia. As far as I am concerned, he has a priority. I do not accept the point of order and call on Mr Beazley.

Mr BEAZLEY- Can I just say this to all those who are advocating different republican models: whenever this referendum is held to change things, the only permanent thing that will change, if the change occurs, will be to move from a system of constitutional monarchy to a republic. It is unthinkable that we would go back to a constitutional monarchy after having taken a decision to make that change.

Anything that is subsequently arrived at will be subject to the normal tests of the Australian Constitution and will be capable of further refinement and change. But to bring our Constitution home, to nationalise our Constitution, it is that prior question which is absolutely critical. When we go out and advocate this change- and it will be difficult to get it through- to the Australian public we must remember that. That is the prior question and we must unite behind it. Anything else can be altered as time goes by.

The good thing about this particular model is that it has combined some of the good elements from all the republican models that have been put forward. There is a complex process of community consultation. It is not necessary on any of these models to dot every `i' and cross every `t'. That will be done by parliament when it puts forward a referendum proposal and this Constitutional Convention ceases to exist. We will be able to get from this direction, I think, a very good formula that people will be satisfied with.

This model contains that essential element of the proposal, that is, a parliamentary process to secure the election of the president- and a bipartisan one at that. I happen to think that that is absolutely critical. That is what ensures that a non-political person that the public can identify with will come through, without producing a train wreck in the Constitution itself. Both those things must be achieved by whatever outcome it is that we secure here. Finally, it has a process of dismissal which leaves the centre of power in the elected government. I think that is critical too.

What has been put forward here is a good hybrid model; one that can, I think, be advocated effectively, but one that must be advocated by all political parties if it is to succeed. I have been enormously encouraged by the contributions of Liberal delegates here. There is a degree of confidence that what is a very transparent model that ensures a bipartisan approach will, at the end of the day, secure their support, which will be absolutely vital when this question ultimately is put to the Australian people.

 
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Last updated: 21 October 2000