Transcript of Proceedings - 12/02/98 HTML Page 7

The Foundation for National Renewal
Working for a better Australia through constitutional reform

	The Constitutional Convention of February 1998
	A missed opportunity for much-needed reform.

Introduction

Delegates

Proceedings

Summaries

TRANSCRIPT OF PROCEEDINGS
Thursday, 12 February 1998
Page 7

CHAIRMAN- Regrettably, your time is up. To briefly summarise the three models, I call on Dr Gallop, Mr Hayden, Mr McGarvie, and then Mr Malcolm Turnbull. I urge you to contain your remarks within the three minutes allocated before we proceed to the voting.

Dr GALLOP- I will try to address the points that were made with specific reference to the model. George Winterton raised some issues. Some of those were what I would call of a technical nature and, to quote Malcolm, I think they could certainly go off to the drafting committee. It is true, however, that the nomination process was specifically kept open and we left it to the federal parliament to sort out those nominations rather than to build specific details into how they would do that.

It is also true that the House of Representatives election will be on the same day as the presidential election. Our group chose that because we believe that would be an important way, first of all, of dealing with the objection of cost and, secondly, making it absolutely clear that the election for the Prime Minister in the House of Representatives was determining who the government of the day was and the other election would be held in respect of who the head of state would be. By separating the two in fact you had the chance of creating rival power bases.

George Winterton's point in respect of including the word `express' after `constitutional contravention' is something that we could certainly have a look at down the track. In respect of Bill Hayden's criticisms of our model, they are somewhat difficult to come to terms with, Bill, because you are the most radical and the most conservative delegate and those two things at the same time, so it becomes a little bit difficult to respond. But we do have a system of representative democracy in Australia, and we have tried to build that in our model of nomination with the ultimate power of choice and decision being left with the people.

I believe my colleague from Tasmania Jim Bacon dealt very adequately with your proposal for a petition. There have been only four petitions since 1980 with over 120,000 votes and each of those of course has been organised by major bodies, major political parties and organisations. Your model, Bill, will give power to very powerful people in our community who could determine the process.

Adam raised a question in relation to the High Court. We did discuss this matter and the possible implications for the freedom of expression decision. That is why we are saying to put into the Constitution itself a provision that parliament will be required to make laws to regulate the election. We believe that would get around any potential High Court challenge on that issue.

Finally, may I address one issue that has been raised by speakers from the Australian Republican Movement? Might I point out to all of those speakers that the model that they are accepting in this parliament today, which remains virtually silent on the question of reserve powers- indeed, this Convention has really endorsed a much stronger version of reserve powers than I would have expected a Constitutional Convention to do- and has no comment about what may happen in a supply crisis in Australia, is giving more power and more authority to a future head of state to do what happened in 1975 than either the current system that we have or the system that we have advocated in the direct presidential election group.

Delegates, with those comments, I urge you to give serious consideration to our model. It has been well thought out. It has been considered in the context of this Convention by responding to your arguments. I think the one thing that we have done that the other models have not done is give a direct say of the people in Australia as to who their future head of state will be.

CHAIRMAN- Dr Gallop, I have an amendment which has been distributed to your model. It was moved by Ms Kelly and seconded by Catherine Moore and endorsed by 10 members of your group. It states:

In the "shortlisting" question, after the word "candidate", add: "at least one of whom shall be a woman and one a man"

Dr GALLOP- I accept that.

CHAIRMAN- The particular model when it is considered will have that amendment as part of it.

Dr GALLOP- What that will mean is that there must be at least one man and one woman amongst the three candidates who are running for president.

Mr HAYDEN- Geoffrey Gallop made the observation that I am both radical and conservative at the same time. There has often been some truth in that. For instance, in economic management, when I was Treasurer in the Whitlam Labor government I was both terribly conservative in macro-economic management and sought to be rather radical in micro-economic management in redistributed terms; that is, where it is safe and proper to be radical I am prepared to do so and when it is going to be dangerous then I will be conservative.

If I believe that the changes being proposed are going to be dangerous, then I will be conservative about them but if I can see a break for change, given the fact that the Prime Minister asked us to come up with something, then I will be radical. My radicalness extends to the model before you in my name. It stands against all others. It genuinely respects the role of people in a democracy. The criticism has been made of it that the number required to complete a petition- one per cent of the voting population- is altogether too high. I do not accept that, but if someone wanted to move an amendment one could look at it. I do not accept it because we are talking about a national election for a national leader. If a person cannot get 120,000 votes nationwide, they scarcely have the credentials with the public to be a national leader.

Political parties no doubt would engage in this but do not forget that as a ceremonial head of state with very limited reserve powers the person will be presenting themselves on their background and performance, their acceptability in the community and the status which people give them. If that sort of person who stands out from the fray engaged in by the run-of-the mill politicians in the community cannot organise a number of notable points around the community campaigning for him or her to get 120,000 signatures, there is something terribly defective in their claim to be a candidate for the role of head of state.

The final point I wanted to make is simply that this resolution is going to sort out the sanctimonious republicans. We can all be sanctimonious. I do not do a bad job myself from time to time, when it is needed. There have been a lot of sanctimonious repulbicans running around demanding a direct election but finishing up with a model which restricts the opportunity of people to select their own candidates. `They cannot be trusted,' the sanctimonious republicans say, `People like us know better.' They want to set up a sort of filtering system which will get rid of the sorts of people Phil Cleary was talking about earlier. In my view that is quite wrong. That is a denial of a basic tenet of democracy we know it.

Mr McGARVIE- Those of us who support model C do so without pretending there is any radical change, without pretending that human nature will improve if it is adopted. I remind delegates that this debate started not because there was dissatisfaction with our present system of government but because a view was held by a number of people that we should become a republic. My interest in this originated only when the Republic Advisory Committee asked me as Governor of Victoria to look at the question which at that stage was the question of finding a model for a viable federal republic which would make minimal change and retain the effect of the existing conventions and system of government.

I looked at that. It seemed to me that Australia had provided the answer. The evolution had gone so far in the last 200 years that that small step which is involved was the only step to be taken. It is as Australian as the gum leaves. It comes from Australia. It carries with it all the strength of the binding convention, binding for practical reasons. Delegates who have a prime concern for our children and grandchildren and those after them will give very careful thought to it and I am sure they will give support to it.

Mr TURNBULL- I do not think Mr McGarvie or anybody else has a monopoly on concern for their children and grandchildren. We are all committed to the future of this country. We have all worked very diligently and with integrity to develop a model that can be considered by the Australian people in a referendum. We are all concerned for the future.

Let me talk briefly about the principle of the bipartisan appointment model. It confirms the existing parliamentary system we have in Australia without any amendment save that we remove the British monarch as our head of state; that we have an Australian citizen as our head of state; and, instead of that person being appointed by the Prime Minister in his or her sole discretion, that person is appointed by a bipartisan decision of both sides of politics. Bipartisanship is an important value, and it is one we believe ought to be encouraged by this Convention.

It has been said that those who do not support direct election do not trust the people to make a decision. We all trust the people to elect every member of every parliament in Australia. Those parliaments make our laws; those parliaments choose our heads of governments; those heads of governments nominate the ministers that manage the affairs of the Commonwealth, the states and the territories of Australia. Of course we trust the people, but we do not any of us suggest that every public office should be elected. Nobody has suggested that every judicial office or any judicial office should be elected. Why not? Because the obvious answer is that office should be held and conducted impartially.

Delegates, the office of president of Australia, just as the office of Governor-General of Australia is today, is one which involves an important role as constitutional umpire. An umpire must be, by definition, impartial and, ideally, would have the support of every section of the Australian community. We have offered a proposal, a set of principles, which will ensure that person not only is impartial but has the support of both sides of politics.

I commend it to you, but I would urge you to bear in mind that it is a set of principles. It is something that we can refine this afternoon, but we should not pretend that we are writing the Constitution amendment bill. Our job is to define principles and to present them to parliament for parliament to incorporate in a Constitution amendment bill. We should focus on principles and not detail.

CHAIRMAN- I am advised that Mr Patrick McNamara is not present. As there is no proxy, no votes will be recorded against Mr McNamara. Before we proceed to the voting, I understand that Brigadier Garland wishes to raise a point of order.

Brigadier GARLAND- Mr Chairman, I rise to make a point of order on the voting system about to be commenced. On Tuesday of this week I asked why I was being denied my constitutional rights to vote on each model. I said the way the instructions on voting for models appeared to me was that in round one we are being presented with five or six or seven resolutions- in fact, it is now four- but that the delegates who are sitting on the floor get one vote in relation to all of the resolutions. Mr Turnbull replied, `But you have a vote on each one.' I noted that if it meant a vote on each model I will excuse them; that is, the Resolutions Committee. As it reads now, they will have one vote to be directed in favour of one of these models. That to me means that we get one vote in respect of voting on all models or an abstention. I suggest an abstention is not a vote.

I was not sent here by some 79,000 voters to abstain from voting. As the chairman said in relation to my question, the intention is that every delegate will have a vote on each occasion. I notice that the system of voting provided in the green issued yesterday is that delegates may vote by putting a cross or a tick to indicate his or her choice, and there is a box for No Model/Abstention. There is no provision to vote against each model, and delegates are denied the right to vote no, rather than to abstain. To abstain is to forgo your vote. It is akin to voting informal at any election.

Sir, this is not a party preselection ballot. We are not at Botany or Bankstown voting and having somebody out the back on a motor cycle to run the results to another venue. I believe that all delegates have been misled by the decisions made by the Resolutions Committee. This denial of the delegates' constitutional right to vote `no' rather than to abstain is, I believe, unjust and throws doubt on any vote taken on these models. It does not declare a legitimacy on any result, and it could be thrown out because of that. I object most strongly to being misled.

As I noted on Tuesday, I could smell a gerrymander being put forward by the Resolutions Committee. It now is on the table to be exposed to the whole of Australia. Therefore, I move:

That at each and every round of voting, each delegate be required to cast his or her vote for or against each republican model or any other proposition put forward.

I have tabled that.

CHAIRMAN- Thank you, Brigadier Garland. I have received a copy of your motion. However, I would point out that, first, we are proceeding in accordance with the resolution adopted by this Convention on 10 February. The process of voting was outlined at that time. I would point out to you that, on the ballot paper that has been distributed, the identification is `no model' which means you can vote against it or abstain. I would suggest that what you do if you wish to vote against each model is cross out the word `abstain'. Indeed, if you look at the ballot paper, you will see that `abstain' is in small print and `no model' is in capitals. You need only cross out `abstain' if you wish to vote against each particular model. In those circumstances, I rule there is no point of order. I do not accept your motion. I propose to keep-

Brigadier GARLAND- I then request that my name be recorded as being against this system of voting, which is unconstitutional so far as the delegates are concerned.

CHAIRMAN- Your point of order will certainly be noted in the minutes and your point of view will certainly be there for any to read. Can we then proceed to the voting. I am going to speak about the voting papers in a moment.

Mr KILGARIFF- Mr Chairman, I raise a point of order. Do you want to pursue the amendment I have moved to model D?

CHAIRMAN- I meant to proceed on it before Mr Turnbull concluded. We have a further amendment which has been moved by Mr Michael Kilgariff and seconded by Mr Liam Bartlett. I understand, Mr Turnbull, that it has been accepted by 10 members of your group. Is that correct?

Mr TURNBULL- The amendment is a proposal that the reference to nominations being published be deleted. That certainly has some support here. I would suggest that, assuming the bipartisan appointment model survives into the afternoon, all amendments will be dealt with then. I think that is the more appropriate time.

CHAIRMAN- Unless it is accepted by all the members of your group-

Mr TURNBULL- It is not accepted by all of them.

CHAIRMAN- In that case, we will deal with it if it survives this afternoon. The reason I put the other amendment in Dr Gallop's proposal is that I understand all the members supported it and it was not, therefore, the convention to take a decision. It was for the group, and the model that we will consider will be the one as amended by the members of that particular support group for the model.

Mr TURNBULL- Mr Chairman, it certainly does have, I concede from the signatures, quite a bit of support. I think it is something that is better debated by the whole Convention this afternoon.

CHAIRMAN- In that circumstance, it will be debated this afternoon. I will not put it at this stage. The voting procedure, you will recall, was outlined by the resolution passed by this Convention the other day. I shall read it so every delegate is aware of what we do. It says this under the heading `Round 1':

- Assume five models-

in this instance we have four models-

Chairman to advise each delegate that he or she has one vote to be directed in favour of one of these models (or abstention).

- Delegates to stand in their places, or otherwise prominently indicate their position, and have their votes recorded by tellers.

- Chairman to announce number of votes recorded for each model.

We then assume that whichever one has the lowest number is eliminated for the subsequent rounds.

The system will be as follows. The ballot papers are now going to be distributed. On the ballot paper itself is printed the name of the delegate, a descriptive title for each model plus the `no model', as I mentioned in answer to Brigadier Garland, or `abstain'. If you wish to vote against the model you cross out the `abstain' and your name will be recorded as a `no model' vote against. If, on the other hand, you wish to abstain you cross out `no model' and your name will be recorded as an abstention. There is a box beside each title and in those boxes you may place either a tick or a cross. If you put either a tick or a cross that will be taken as a vote in favour of that model. You need vote only in one box.

Could I have a little quiet, please. I do not know whether everybody understands the system; I do not think some members do. You will have four boxes, plus that vote for no model or abstention. You vote only once and you put either a tick or a cross in one of those squares. If you are voting against you cross out `abstain'; if you are abstaining you cross out `no model'.

There is a space for each delegate to sign. The purpose of that is to ensure that the person who has received a ballot paper is the person who has voted. Your name will then be recorded. What we will be doing at this stage is telling you the numbers, but your names and how you voted will be accumulated and put in Hansard in just the same way as when we have a division in the House. The reason we are doing it this way and not dividing is that the facilities here do not allow for an easy division, nor do we have the capacity to have tellers who, in a reasonable time, might be able to come to a result. But your names will be recorded. As I say, you have a name on the ballot paper and you will sign.

When you have completed your ballot paper you then tear off that ballot paper from your list and hand it in when I call you. I will allow a little time for you to vote. What I intend to do is to then call for those in favour of model A. When I call for those in favour of model A, you will indicate or stand and your paper will be handed in- so everybody will see on television which model you are supporting!

We will then proceed to model B. If you are supporting model B, you will stand and again, having torn off your paper, you will hand in your bit of paper, and so on with C, D, against and abstention so that we can have the separate identification of the way in which you are voting.

Could I have a little more quiet, please. I know some of you know how to vote early and often but some are not quite so experienced.

Each delegate will receive the same number of ballot papers as there are ballots, including one ballot paper with the status quo as a model, which is of course the one that we will deal with in the second last round. Three special ballot papers will be distributed in case special ballots are needed. If not, we will not worry about those until we get to them.

In each round when voting you will rise in the way I have explained. The ballot papers will be collected by officers of the Convention secretariat and placed in those boxes that are identified on the table. The count will be taken in front of us. When all votes are lodged the ballot papers will be stored in the envelopes labelled `round 1', `round 2', et cetera. They will be collected and identified in separate envelopes so we will know that they can all be recorded simultaneously for Hansard.

In the event of two models coming equal last there will be a special ballot. I think it is important that delegates understand this. In the event of two models coming equal last there will be a special ballot in which only those models will be voted upon, except in the second last round. So if two of the proposed models receive the lowest number of votes but equally, there will be another vote. In the event of any special ballot resulting in a tie, further special ballots will be taken as necessary. Any ballot cast for a model not in contention, including the status quo, will not be counted. I will explain that in the second vote.

Are there any questions on the voting procedure before we proceed to our first vote? If there are no questions, has everybody received a ballot paper? If anybody has not, will they please signify? If everybody has received a ballot paper, we will proceed towards the first ballot. You have your ballot paper in front of you. You have your name on the top. You should sign your ballot paper and vote once on the ballot paper for that of the alternatives which you support. I ask you now so to do. If delegates are ready, can I ask those delegates who support Model A to rise in their places or otherwise indicate so that their ballot papers can be collected.