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The Foundation for National Renewal |
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The Constitutional Convention of February 1998 |
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A missed opportunity for much-needed reform. |
| Introduction | Delegates | Proceedings | Summaries |
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TRANSCRIPT OF PROCEEDINGS
Councillor TULLY- I have a point of order, which I wish to come up and speak to formally, in respect of the declaration of that vote. The rules are silent in respect of the detailed method of voting, and they are silent in terms of whether or not- I am sorry, I will continue; I will not see people shaking their heads. There is no provision in here for a resort to the standing orders of the House of Representatives or otherwise. In other words, resort must be given to common law. I would like to refer to Joske's Law and Proceedings at Meetings in Australia. I will read for the benefit of delegates- this is quite important- a reference to this. It reads:
Consequently, where a majority of those present is required, a motion may be defeated by a number of those present abstaining from voting . . . So where a simple majority of those present was necessary-
It is quoting a particular case-
and, of the 35 present, 16 voted for the motion and eight against it, while 11 did not vote at all, the motion was lost.
Sir, prior to your putting the vote, you indicated that it would be based on the number of those persons voting.
DEPUTY CHAIRMAN- Yes.
Councillor TULLY- Clearly, those court cases indicate that the abstentions must be taken into account. They exceed the number of persons voting for, and, to avoid the possibility of court proceedings in respect of this matter, I indicate to you on the basis of this document that that vote must clearly be declared as lost.
DEPUTY CHAIRMAN- I am deeply grateful for the advice of Councillor Tully on a number of matters. I draw his attention to the eighth edition of Joske's Law and Proceedings at Meetings in Australia. I draw his attention to the beginning of the paragraph that he read, where there are some words that appear to have eluded his attention and certainly have not received the benefit of the green highlighter. It says:
Rules of a body may prescribe a particular method of voting and may abrogate the common law method which requires merely a majority of votes.
I rest my case. It has been passed by a majority of votes.
Councillor TULLY- I move dissent from your ruling, Sir.
Professor PATRICK O'BRIEN- I second the motion.
DEPUTY CHAIRMAN- You are very welcome. Councillor TULLY- I will be brief in my motion of dissent. Even though you have quoted that, I am not sure you have quoted any provision of these rules which indicates that we have abrogated the provisions regarding common law because, clearly, it is silent. I asked you prior to the vote whether or not all the votes being taken into account would be counted. I asked whether or not in those circumstances it would be an absolute majority of all delegates or whether it would be a simple majority of those voting. People had three choices when voting: for, against or abstain. The rule at law is quite clear; I challenge anyone to show me where it is wrong in law. There are no provisions in the rules which we adopted either on the first day or progressing through this particular Convention or in the debating procedure for this stage of the proceedings yesterday and today. I believe that quite clearly there is a majority of 79 votes against- either as No or Abstain- and only 73 in favour.
Professor PATRICK O'BRIEN- I second the motion.
DEPUTY CHAIRMAN- In the case of a ruling against the chair, there is only one speaker for and then the chair responds. The rules of debate, which you all, including Councillor Tully, agreed with at the beginning of these proceedings, make no provision for an entrenched majority. Early on in the proceedings, the Chairman was asked to rule as to the kinds of majorities which would operate and to distinguish between a simple majority and an absolute majority. There is no rule in the procedures- and it may have been an oversight on the part of Councillor Tully that he did not provide for it- that says that there must be an absolute majority affirming a particular motion. We take it, and it is the normal common law rule, that an abstention means a refusal to take a position. So, in that case, if you are looking at a-
Professor PATRICK O'BRIEN INTERJECTING-
DEPUTY CHAIRMAN- Professor O'Brien, you are expert on very many things, but I doubt whether the rules of procedure is one of them. You do not need to go past Joske. Joske is absolutely clear. Joske says that the rules of a body may prescribe a particular method of voting and may abrogate the common-law method. We have not done so. The common-law situation is maintained. I am glad to see a few judicial nods, which I take to be approval. The result is that a majority of those who voted cast a vote for or against the proposition. There is clearly a majority.
Mr TURNBULL- I move that the question be put. Motion carried.
DEPUTY CHAIRMAN- I put the question that the Deputy Chairman's ruling be disagreed with. Those in favour please indicate. There are four in favour. Motion lost.
Mr HAYDEN- Mr Deputy Chairman, on a non-legal but practical basis, I think on the Prime Minister's criteria there is a clear view emerging. The clear view is 79 votes No and Abstain, and Yes 73. That is the clear view as distinct from any legal interpretation.
Mr HOWARD- Can I offer a clear view on that?
DEPUTY CHAIRMAN- Please.
Mr HOWARD- Mr Deputy Chairman, when I spoke a few moments ago I reminded people of precisely what I said at the beginning of the Convention. I said:
I inform the Convention that if clear support for a particular republican model emerges from this Convention-
I repeat the words: `a particular republican model'. The only commonsense interpretation of this Convention is, firstly, that a majority of people have voted generically in favour of a republic. In fact, 89 out of 152 voted generically in favour of a republic. Secondly, amongst the republican models, the one that has just got 73 votes is clearly preferred. When you bind those two together, it would be a travesty in commonsense terms of Australian democracy for that proposition not to be put to the Australian people. Moreover, it would represent a cynical dishonouring of my word as Prime Minister and the promises that my coalition made to the Australian people before the last election. I would hope that the next resolution is carried unanimously and perhaps put without too much more debate. DEPUTY CHAIRMAN- We now proceed, unless there are any more procedural motions, to the fourth resolution. I understand that is to be moved by Malcolm Turnbull.
RESOLUTION "That this Convention recommends to the Prime Minister and Parliament that the republican model, and other related changes to the Constitution, supported by this Convention, be put to the people in a constitutional referendum."
That this Convention recommends to the Prime Minister and Parliament that the republican model, and other related changes to the Constitution, supported by this Convention, be put to the people in a constitutional referendum.
The Constitution of Australia belongs to its people. They will make a decision as to whether this proposal will be accepted by them or not after parliament has considered and enacted the principles and resolutions of this Convention into a constitution amendment bill. It is clear that there is an overwhelming preference of this Convention for the bipartisan model. I appreciate and congratulate the Prime Minister's remarks. I would urge you to vote now to recommend to the Prime Minister and parliament that the bipartisan model and other related changes to the Constitution, supported by this Convention, be put to the people in a constitutional referendum.
Ms HOLMES a COURT- I second the motion. Deputy Chairman, Delegates, I quoted Tim Winton on the first day, and I am going to read it again:
You've never seen people relish the lighting of a lamp like this, the way they crouch together, cradle the glass piece in their hands, wide eyes caught in the flame of a match, the gentle murmurs and the pumping and the sighs as the light grows and turns footprints on the river beach into long shadowed moon craters. Let your light so shine.
Our lights have shone for the last two weeks, particularly the lights of the young people who were here. We have crouched; we have cradled; we had been wide eyed; we have lit the match; we have had murmuring and pumping; we have had sighs. Some people have said that the model we have come up with, which has a majority of supporters in this house, is a camel. I say it is a beacon to take us into the 21st century. I am delighted to second this motion of Mr Turnbull's, to send this motion out to the Australian people so that they can tick that final box, so that we can have a head of state and so that we can burst, as Tim Winton says, into the moon, the sun and the stars of who we really are- Australians: perfectly, always, every place, us.
Professor PATRICK O'BRIEN- I would like to speak against the motion.
DEPUTY CHAIRMAN- No, just resume your seat. I will give you the call. There is a proposed amendment to item 4 on the Notice Paper, moved by Kerry Jones and seconded by Bruce Ruxton. That motion seeks to delete the word `supported' and replace it with the word `identified'. For the amendment to be allowed to proceed it requires leave of the Convention. I will ask for those who are prepared to give leave for the amendment to go ahead.
Mr HOWARD- Can you just repeat it? I was conferring with my learned counsel. DEPUTY CHAIRMAN- We might need to have a count. I was asking whether there was leave granted for the amendment to be moved by Kerry Jones and Bruce Ruxton to delete the word `supported' and substitute the word `identified'. Leave in this case means 50 per cent of those present. Could I have an indication of those in favour of granting leave. Because you do not call for votes against, leave just requires more than half of those present. The figure in favour of granting leave is 69, so, paradoxically, it is not possible for leave to be granted.
Senator ALAN FERGUSON- I raise a point of order. You said 50 per cent of those present. How do you know there are 152 present? I know of at least one who is missing alongside me, and I do not know whether other people might not have left the room.
Mrs GALLUS- That person is sitting over here; she is not missing.
DEPUTY CHAIRMAN- Is there a desire to have a count? No. The indication is that it is only a minority.
Professor PATRICK O'BRIEN- I am speaking against the motion. I congratulate the ARM on getting 73 votes. This is not a football match and I am not a so-called poor loser, and what I have to say is not motivated in any way by that footy game. I repeat that I congratulate the ARM and the other people who supported that motion in getting 73 votes. I only wish that we had got 73 votes for our model, and we did not. Having said that- and here comes the `but'- I do oppose the vote. I will vote against this being put to referendum. The reason is this: it is not a majority of the delegates. I, maybe mistakenly- I am not challenging the chairman's ruling anymore- did believe that whatever went to the people would have to receive the votes of at least a majority of delegates. I know for a fact that some delegates here understood that in abstaining they were actually voting, and that happens to be the case. So I am not the only person under the misapprehension.
DEPUTY CHAIRMAN- We have dealt with that matter. This is a different question.
Professor PATRICK O'BRIEN- It is not; it is the same question.
DEPUTY CHAIRMAN- With respect, it is a different question, and I direct you to talk to the question before the chair.
Professor PATRICK O'BRIEN- All right. I do not believe it should be put, for the reasons that I have given. I do believe that if the ACM votes to support the motion then they will come across to Australian people as being principleless. Remember that Mr Malcolm Turnbull a week ago offended many of the ACMers by saying that he thought they were going to vote strategically to make sure that at the bottom line the model they thought could not get through the Australian people would get up. That is what they have done, and they have betrayed their principles if they voted that way. I oppose the motion and here I stand. Mr COWAN- Like all delegates, I came here to address the questions that were put in writing to us by the Chairman on behalf of the Prime Minister and reinforced by the Prime Minister in his opening address just recently. There is consensus among Australians about two things. The first is that they like the system of government, the freedoms and the quality of life our constitutional monarchy provides, and secondly, they would like an Australian head of state. If it can be done, then do it. But do not- whatever you do- weaken those first points. As a state representative, I would like to add another qualification or two. The first is the need to protect the federation, and the states' constitutional responsibilities, and the powers within it. The second is to preserve representative parliamentary democracy within the states. I include in that the delegated authority of the states: local government. I support this particular motion because it is necessary for us to have a referendum so that all Australians can determine whether they do or do not want to be a republic. But I reserve my right to make sure that in putting that referendum those particular points that I have made are protected and preserved. I have seen, for 25 years of political life, the powers of the states encroached by the inventions of the High Court and by the financial powers of the Commonwealth. The last thing this country needs is a republic that promotes centralism.
Professor BLAINEY- First, could I say that, while I do not support the proposition that I hope is go to the Australian people, I do congratulate the republicans on their victory. Even I felt a slight lump in the throat when I saw your jubilation and the jubilation of people in the gallery when you had the numbers. I congratulate you and I wish you well. I will not go any further. I felt, when the vote had been taken, that perhaps John Quick of Bendigo should have been here. He, in many ways, is author of this event. He came to Australia in the 1850s as a child and set to work in the stamp mills and in various labouring tasks. Eventually he got himself an education. He was the man at Corowa who believed that, ultimately, in a difficult question in 1893 when Federation seemed doomed, the only way to revive it was to bring in the people, and we have seen that happen in the last fortnight. I congratulate you, Mr Prime Minister. You have taken this unconventional decision to involve the people in debating this important question. It is not always an easy decision to hand power to somebody else but you have done it and I congratulate you. May I just say that when the republican movement began to gain momentum after Mr Keating's announcement, it was not realised then, because it was so long since we had had a major constitutional change that involved the emotions as well as decisions about power, by many politicians nor by the media, what an enormous task it would be to enlist the public in seeing the issue as important and seeing its implications. Mr Keating grasped the issue to himself and pushed forward to a considerable degree, but he kept public out of it, and he kept the opposition out of it. From memory, Mr Kennett nominated me as the Victorian representative, but since I was against the republic I was not chosen, although Mr Turnbull would have been perfectly happy for me to be there. Ultimately, it is debate that brings out the difficulties and the significance. Debate is vital. It is all important. When I think of the 1890s and that slow movement towards Federation which was ultimately accomplished, it was incredibly difficult. Even Sydney, which was then the biggest city in Australia, said, `We don't think we want Federation.' In the first referendum that great city voted against Federation, and that is why they got the great prize of Canberra, as a bribe. If only three train loads of voters in Queensland had changed their mind, Queensland would not have voted for it. Western Australia came in very late- very late indeed. I think we face an issue as difficult as the issue that was faced in the 1890s because it really combines two things. It is a debate about symbolism. You and I came with our own ideas of symbols, and I would be very surprised if any one of the 152 here really changed their mind about symbols in the space of the last fortnight. But the other question, the most difficult question, is how you apportion the powers, how you appoint the president and how you dismiss him. That is a very difficult question. I believe it must go to a referendum but the debate must be on a very substantial scale throughout the nation. I hope that debate takes place and the decision, whatever it is in 1999, is decisive.
Mr TIM FISCHER- I support the printed motion as it properly completes the business of this Convention. It was so drafted by the Resolutions Group and I support it as one who supports the existing Constitution and one who, enjoined with John Howard, Alexander Downer and so many others at the last federal election, went forward with a policy to provide for a convention delivered in spades and for a vote of the Australian people. We have the Prime Minister's confirmation this day that that too will be delivered and delivered in the year 1999. I think we should all accept the result of the Convention- win, lose or draw. We now should formally recommend it to the Prime Minister and the parliament. For my part I will be guided- as will all Australians, I am quite sure- by the will of the Australian people. I will put as much effort into the debate as I can to see that these very important matters are fleshed out fully. You do not lightly tamper with your Constitution.
Mr GARETH EVANS- Those of us who embarked on this republican journey together some time ago have come a remarkably long distance in this last fortnight. There is no questioning the historical significance of what we have decided in these last two days and no questioning the historical significance of the motion we are about to clearly pass to put the bipartisan model to a referendum. Let us face it: we have come only half the journey. The referendum campaign will be phenomenally significant and a crucial test of the goodwill of us all and the maturity of this country. Forty-two referendum questions have been put over this century; only eight of them have been successful. No referendum proposal that has ever been put to the Australian public which has been associated with a substantial body of organised opposition has ever been successful. Every amendment proposal which has been defeated has in fact had a substantial body of organised opposition- usually from one or other of the major parties at the national level or on some occasions coalitions of small states and state politicians. Very few referendums have been on issues which are inherently capable of capturing and lifting the national spirit. Perhaps there has been only one such in our national memory, and that was the 1967 referendum to recognise the place of our indigenous people in our national life. That did capture the national spirit. It passed in all six states with a majority overall of something like 91 per cent. Maybe this referendum, after the benefit of a year or so of campaigning and thought and consideration, will prove to be another such example. But we certainly cannot assume that. That is the role and responsibility, accordingly, of all of us here who have participated in this debate and produced this result. So far as my friends in the ACM, the monarchist camp, are concerned, I cannot expect you and I do not ask you to do anything other than vigorously express the no case and campaign against the referendum, as you undoubtedly will. To my republican colleagues, however, in particular those who found it so difficult to join in the consensus with their fellow republicans this week, I urge you to think, think and think again about what is at issue here and about this historic opportunity that we now have that might not easily recur- it certainly will not recur before the historically symbolic, exciting and moving event of the turn of the century- to move the community on behalf of what it is that we all believe in. If we do want an Australian to be this country's head of state, we have a heaven sent opportunity to get there and I hope you will be with us. I will understand perfectly if, right to the wire, you continue to take the view that you took this fortnight. That is what many of you, after all, were elected to do. But with this fortnight past us and the referendum campaign under way I hope and trust and if I prayed I would pray that you join with us in that. There is one final group to whom I make a specific appeal- a group of people with a very specific role, set of responsibilities and historical opportunity- and that is the political leadership of this country, those political leaders at the state and federal levels who have hitherto taken the view that they cannot support this. This is an historical opportunity. If I had the time I would read you the most moving letter of all. But I just make the point that by all means take the parliamentary opportunity, Peter and your colleagues, and state leaders, to further refine it. But understand the nature of the task and the spirit that is upon us and help us carry the game forward.
That the Convention grant leave for Mr Clem Jones to move a further amendment.
This will be the last time I speak. It is probably appropriate that in my last speech I should differ from our Prime Minister. I do not believe we have a model to go forward, a position where we have clear support for anything which is the wish of the people. Motion lost. Mr CLEM JONES- My view is that the proceedings during the last 10 days show quite clearly that the model to be put before the people is a model which is not acceptable to the rest of the people in Australia. I would like to quickly quote from a letter addressed to Mr Malcolm Turnbull which I received today. It says:
I sent a delegate, Mr Clem Jones, to the Convention with the idea of a popularly elected president. In view of the fact that the model did not get preference, I find it offensive to say the least that he has taken it upon himself to disallow me the chance to have my say at a referendum on the bipartisan model. While I can appreciate the fact that he was sent on a particular ticket, his narrow-minded and egotistical attitude is beyond my belief. Will you please tell him that on my behalf.
There is no need because he sent me a letter too. The letter goes on:
I am an ordinary Australian. Let me have my say.
That is what we want
to do, of course: let the people have their say. This is the
first, out of over 250 letters that I have received since I have
been here, which suggests that the people are not almost 100 per
cent behind the proposition that we put forward: that we must
have a president elected by the people. ·=============== Last updated: 21 October 2000 | |||
