The Foundation for National Renewal   The Constitutional Convention of February 1998

Federal Election October 2004: Which Candidates Trust the People?

TRANSCRIPT OF PROCEEDINGS
Friday, 13 February 1998
Page 9

Professor PATRICK O'BRIEN- In a conversation over a beer last night with His Grace Archbishop Pell, I discovered we have certain friends in common and we have become very friendly towards each other. In that spirit I said to him, `Your Grace, it is not surprising that you support this model because, as a high hierarch in one of the world's most hierarchical organisations, it is to be expected that you would support a hierarchical model.' I do not say that with disrespect. It is my view, and he knows it is my view. I told him that at the Irish Ambassador's party. I also would remind His Grace and everyone else that, indeed, the methods by which His Holiness the Pope are elected are more democratic than the methods proposed in this document.

As to my friend and former student, Kim Beazley- for whom I have great affection- I thank him for his warm and jovial remarks. I would just remind him that I would love to embrace him, if only he would embrace democracy fully. I would say to Kim, and other members of the Labor Party, that the Labor Party was, in my view, the party of democracy. It was the party of giving the battler a go. It was the party that pioneered the right to vote in Australia. It was the party that pioneered getting away from property qualifications for upper houses.

But now it has stopped short of that. It is supporting hierarchy; it has become reactionary. That is why, Kim, I cannot embrace you on this matter. Please come around to the democratic side and we will all embrace each other. Now, Kim said, `Trust us,' but he forgot to say, `The cheque's in the mail,' or, `I'll respect you in the morning.'

Finally, I will make two quick points. The term `bipartisan' is newspeak. It is not a bipartisan model; it is the model through which the Prime Minister would essentially, in secret, pick one name out of a hat and then that name will go through a wheeling and dealing process. This person is going to be sacked in a letter from the Prime Minister. If this office is going to be the protector of the Constitution, as most people expect the head of state to be, how can such a person be the protector and upholder of our constitutional rights? He cannot be. So, all in all, we cannot vote for this model. We must not vote for this model. We must hang out for a democratic model.

Mr HOURN- I am pleased today, after seven years of posturing, to now have a model put before us which we can debate in seriousness. We have had 100 years to scrutinise our present system and only a short time to have a look at this one. But a quick scrutiny shows that this cobbled up, insipid, compromise of a republic model that has been put before us does not hold up.

The nomination system is tokenism. Mr Turnbull says that it is not, but it is a clear system of tokenism. It will deliver only a warm fuzzy feeling and nothing else. Some people will have the opportunity to put forward nominations, but they will go to a parliamentary committee. When I think of committees they always remind me of a definition I once heard of committees being a cul-de-sac designed to lure ideas and then strangle them.

At the end of the day, the Prime Minister will have the ultimate decision and it really is tokenism putting up nominations from local governments and community organisations. I cannot see myself having a nomination considered. I do not think my local council in Subiaco will have one. I do not think my local member, who is an Independent, will have much say in it.

The appointment by a two-thirds majority of parliament needs very close scrutiny. History tells us that only four times in our parliamentary history has there been a two-thirds majority in parliament, and history shows us every day that parliament is a hostile place. There will be deal making, there will be horse trading. The Leader of the Opposition could derail the process. There is a great deal of uncertainty.

But the main difficulty with this model is the dismissal powers. There will be an incredible increase in the executive power of the Prime Minister under this model. The model tells us that the powers of the president should be the same as those currently exercised by the Governor-General. But the powers and independence of the new president are going to be nobbled. The protector of the sovereignty, as the Governor-General is now, will not be the same for the president. How can a president be a neutral constitutional umpire if he can be sent off the field by the Prime Minister?

The balance of our present system is going to be upset. At present, the balance is about right between the head of state, the head of government, the parliament and the people. But this will remove a very important check and balance. There will be an increased power of executive government and executive power by the Prime Minister.

As a West Australian, it should be pointed out that West Australians have a couple of things they think about passionately: one, they do not like being told what to do by eastern staters; and, two, they do not like more centralised power in Canberra and more power to politicians. They also do not like being sold a pup and have the wool pulled over their eyes.

I think delegates need to look very carefully. I do not think any of us want to be associated with failure. This is a cobbled up model. It is a model for celebrities. It is a pseudo democratic model. It is a republic at any price. If we vote for this model we will be replacing a maligned monarchy with a less popular republic for elites. Delegates must remember that they are going to have their vote counted. I do not think anybody here wants to be remembered for backing a loser. That is what this is going to be.

Ms O'SHANE- The question that this Convention supports the adoption of a republican system of government based on the bipartisan appointment model in preference to there being no change to the Constitution is a trick question. To vote against it is to vote in favour of a constitutional monarchy. Earlier this morning on the floor of this chamber I, along with over 100 of my fellow Australians, voted for a republic in principle- in principle. I did not vote for just any republic.

I came to this Convention on a platform of a just republic, not just a republic. I am sorry to realise that, having been involved in the discussions over the last 9* days, this model is just a republic. It barely gets into the category of republic even then because it continues to maintain a Constitution which was designed for a constitutional monarchy system of government. If we are to change to a republic- most particularly, if we are to have a just republic- then we need to design a constitution for a democratic republic of Australia. This model is a long, long way from doing that.

Over the course of this Convention I have heard a number of comments made by people both within this chamber and outside the chamber that to have a democratically elected head of state would mean that the head of state then became a political player in the power stakes. The answer to that problem is not to say, as so many have said, that therefore we should not have a democratically elected head of state. Rather, the answer is to say that therefore we have to strictly codify the powers of the head of state. But it does not stop there. We must also spell out in a constitution for a democratic republic of Australia the respective roles, authorities and powers of the Prime Minister and cabinet and government's responsibility to parliament.

I also happen to be a very strong advocate of proportional representation. Another issue that has been raised on this floor is the function of the Senate and its powers. In a truly democratic society the continuation of a house of review, the principles underlying which are located way back in the days of strong aristocracy, can no longer be worn by a democratic republic of Australia. We must abolish the Senate eventually and ensure that we have proportional representation represented in our House of Representatives. I will not be voting against it, Mr Chairman; I will not be voting for it. I must abstain.

Mr McGUIRE- Fellow delegates, this model deserves your support because it has evolved through a great system of democracy. Half the delegates here are here because we were elected by the people directly; half have been appointed by the people elected by the people directly. For two weeks we have lobbied, voted, discussed, amended and voted again and we have come up with the Convention model- it is the Convention model. The fine line we walk to accommodate everyone here today is personified none better than by the Costello family. Peter wants less community involvement; Tim would like more. If we cannot get one family to agree fully, what hope do we have with 152 strong-minded people? That could be a good thing. I have been uplifted by the intelligence and passion of the speakers over the fortnight but if, when this question goes to the vote shortly, you vote not on the work of the Convention on behalf of the people of Australia but on personal principle brought here a fortnight ago then we should have gone and played golf for two weeks and turned up today to put our hands in the air.

Direct election republican delegates, McGarvie republican delegates and all other republicans wrestling with this point: let us remember what we are here for. Whatever the route- direct, McGarvie, ARM or any other- the ultimate result is to get an Australian as a head of state. Voting for a republic, as we did earlier in the day, is a bit like voting for free beer- a good idea, but we need the model to get it up. Some say to me, `Don't worry, it is inevitable; it will come eventually.' That is rubbish. This is the vote to tell the Prime Minister that republicans want a republic and to give our people something to vote on.

It has only taken a hundred years to get this far! Who knows when we will get another crack? Why would we have any ongoing constitutional conventions if a clear message does not emerge from this vote? Those of you with republican blood coursing through your bodies have now got to stand up and look into your hearts. Do you want a republic? Do you want an Australian head of state or don't you? That is the question we are voting on in the next 10 minutes.

Lloyd Waddy, I will quote former Prime Minister Paul Keating. He said once, `In the race of life always back self-interest because at least you know it is trying.' Now the time is to get off self-interest and get back to what we are here for.

Tomorrow we will all wake up and all the petty jealousies, the personality clashes, the personal animosities and the lobbying of the last two weeks will be gone. A lot of us will probably not even run into each other ever again; a lot of us will. But, fellow republicans, at the end of the day when you wake up you have to make sure that you have voted the right way on this. In conclusion, a no vote or an abstention is a vote against an Australian as a head of state. Remember that tomorrow morning when you wake up and remember which way you voted.

Mr CLEARY- Mr Chairman, can I just make a point of clarification?

CHAIRMAN- No, you cannot speak without a microphone. You have asked me if you can get on the speakers list; there are about 30 waiting. There is no point of order. I call on Mr John Brumby.

Mr CLEARY- A point of clarification?

CHAIRMAN- No, not at this stage.

Mr BRUMBY- Mr Chairman and delegates, I want to strongly support the motion before the Chair. I want to strongly support the bipartisan model, which is clearly the preferred republican model coming from this Convention. Like everyone here over the last two weeks- indeed over the last few years- I have had to look long and hard at what is the best republican model for Australia; what is the best model to give us an Australian head of state.

I have looked long and hard at direct election because I can understand its appeal to many of the people who make up this Convention. I was attracted by the Irish model because Mary Robinson stood there as an example. But when you look at the Irish model, Mary Robinson is the exception; she is not the rule. The Irish model is no model for Australia and, in fact, between 1973 and 1990 there were no elections for president in Ireland because the political parties simply agreed on a joint nomination. Far from producing passion, energy and dynamic presidents, the Irish model produced one president, Eamonn de Valera, who was elected at the age of 76 and elected again at the age of 83. The Irish model is no model for Australia, and Mary Robinson was an exception.

The essential question here for the direct election people is this: if you have an honest debate, there are only two choices- an American-style presidential system or a Westminster system of government. If you have got a Westminster system of government, the preferred republican model- the best republican model- is the bipartisan model, with two-thirds appointment by parliament.

I have looked very hard at the option that the Hon. Richard McGarvie put up because he is an eminent lawyer and was a great Governor of Victoria. The strength of Richard McGarvie's argument was that in the two-thirds model there was a problem if you wanted to dismiss a Governor-General or a president. With respect to Richard McGarvie, the two-thirds bipartisan model has taken up that concern; it has taken up that criticism. Dismissal now is by a simple majority vote of the House of Representatives; in other words, entrenching the authority of the Prime Minister and our Westminster system.

So we have made the modifications to the model, we have got the best of both, and I appeal today to all of those delegates- the direct electees and particularly the McGarvie people, the 22 of them who voted for Richard McGarvie's model- to acknowledge that the two-thirds bipartisan model we have here today is the best compromise. It polled twice more than any other model which has come before this Convention, and it is for that reason the most preferred.

This convention is a once in a century opportunity for us to become a republic, for us to appoint an Australian head of state. Let there not be squabbling amongst the republicans. Let us not wish the moment away. Let us get a system which expresses the way we are, the way we want to be, and not the way we were 100 years ago. Some 90 people, as against 50 people, in this Convention want a republic. I urge all republicans to get behind the bipartisan model, which is clearly preferred.

Mr PETER COSTELLO- I thank Eddie for referring to our family and the contribution that we could make. I suggest that if the Convention would like to delegate power to us, I am sure we could fix this over a Christmas dinner. In fact, if you want a constitutional monarch and an Australian head of state, we have a sister!

I am for change. I think that Australia should become a republic. I do not believe this is an optimal model. I think it is a hybrid on a hybrid. Nobody would have designed this a priori. It does not have sleek lines. It does not have design. It is a compromise. What is more, I do not think the work is finished. The work is not finished because when the forefathers of the Constitution came to the convention in the 1890s, they drafted the clauses of the Constitution, the actual words.

You will recall that the Prime Minister said in his opening address that it was detailed work. With all due respect, this model is basically throwing back into the parliament very important questions. In Part 4, it is throwing back that the Convention recommends that the parliament consider various powers and how to draw them. In Part 1 it is throwing back a nomination procedure, and not one to be put in the Constitution but one to be separately enacted. The work is not finished.

One thing we know is that we will have a referendum and that this model will go to it. If you ask me- and this is the way I think Archbishop Pell put it- if this is the best you could get, would you go for it, then that is one question, but another trick question is: do you prefer this to the current situation? All I say is: we do not know yet. I have not given up on it because I will be in the parliament, and I will be seeking to try to improve it. We do not know yet whether it will be preferable.

In answer to what Wendy said about the consultation provisions, I did not think they were a good idea because I do not think you will be able to keep the consultation a secret. One of delegates said, `We have dealt with that- we have a clause in this part that says that the committee shall not disclose any nomination.'

Let me tell you how this town works. In the morning, you go down to Aussie's Coffee Shop and you say, `Who is up for the High Court next week, Aussie?', and he tells you. Then you go up to the press gallery and you say, `What's on in the cabinet agenda next week?', and they tell you. If you still have not figured out what is happening, you ask the Comcar driver on the way home. You have put a clause in here that says it is going to be confidential, but it means nothing. If Mary Gaudron has nominated Michael McHugh and Michael McHugh has nominated Mary Gaudron, you will read about it in `Melba' within 24 hours.

The point I make about that is that it puts people who are up for consideration in a very difficult position, to which Malcolm, who came, like Nicodemus, by night to try to steal my vote on this, said, `Don't worry about any of that: the parliament can ignore it.'

Mr TURNBULL- I did not say that. That is outrageous!

Mr PETER COSTELLO- It would not be a good start to get off on that basis. That is a matter for the parliament to legislate. Australia will move on. I think Australia should move on. I think this should go to the referendum. But I think that the outcome of this question is not essential to that. It is not an essential question and I believe the work should continue and be finished. That is why I will not be voting either for it or against it.

CHAIRMAN- As there are so many speakers, we will allow more time for debate on the issue immediately after we resume at 2 o'clock.

Mr MUIR- This question No. 3 poses a crisis of conscience for those who believe in the sovereignty of the people and electing the President. The dilemma for us is that, if we vote no, we support the monarchy; if we vote yes, we support a bipartisan model which can hardly be called bipartisan. It is in effect a two-legged camel which does not do the job. The Prime Minister controls the whole process, from the nomination to the appointment to the dismissal. Near enough is not good enough for Australia. Those who want change and believe in the sovereignty of the people and are not happy with the few words that have been cobbled together by the ARM and others should abstain. At the end, however, it comes down to an examination of one's own conscience. I for one am not going to bend to any emotional blackmail.

We in the Clem Jones team put together a complete model for a republic after listening to the people of Queensland. It is not Clem's model, it is not Ann Bunnell's model, it is not my model- it is the model of those who voted for us in Queensland. This two-legged camel is not going to get across the line in a referendum. A referendum on a two-legged camel is going to put the republican cause in Australia a long way behind. We believe there will be only one chance to get a republic in Australia and that chance needs to be taken with the direct election by the people. We will not achieve incremental change. Some people here today have said incremental change would be achieved: you get bits and pieces of a republic in and you can then go to elect a president. I do not believe that can happen. You need a head of steam to get constitutional change in this country. I believe the head of steam will be diminished by a bits and pieces republic.

Mr VIZARD- Before I make my remarks, could I just place on the record my indebtedness to the Convention and to the chairman for allowing me to hand in my piece of paper during the vote yesterday. It was greatly appreciated. I particularly wanted to acknowledge my gratitude to Mr Hayden and Mr Waddy for their gestures. Thank you very much.

Firstly, let me say I support the brave and wise words of Archbishop Pell. We seek to find consensus. We seek to find a common model. I know some delegates are struggling with the model, particularly with the approval of a head of state by joint sitting of the parliament of Australia. They say it is a great impediment. You are struggling with the role of parliament. You say that politicians will get in the way. You say that politicians may contaminate the model. But here is a distinction between politicians who may come and go and the great institution of parliament. It is the parliament, not any politician, which is the cornerstone of our Australian democracy. This is parliamentary democracy, and 100 per cent of Australians believe in parliamentary democracy. Parliament is truly democratic. Power is concentrated, but in a diffuse way.

We cannot go around being patriotic yet demeaning our parliament. We cannot demean our parliament without demeaning our democracy, our history, our country and our traditions, including the British ones we have inherited. What we have achieved we have achieved very largely through parliament. We entrust to the parliament the responsibility for the defence of the nation, the making of peace and war, the making of laws and the collection and distribution of revenue. If you think this is the best country in the world, nothing has done more to make it so than that institution- the institution of parliament. It will do nothing for Australian democracy to diminish the parliament, to decide at this point in our history that the parliament is just a collection of politicians who cannot be trusted. It will be a vote of no confidence in an institution we won 150 years ago and affirmed our faith in 100 years ago. We should be reaffirming our faith in parliament now. The parliamentary election of a president is not only the truly democratic method of election but the truly minimalist republic. It makes the least changes to our basic democratic structures and traditions.

Those of you who are on the cusp of a decision: if the greatest risk that you face here today is to endorse a model which has at its heart the Australian parliament, the touchstone of Australian democracy, and if the greatest risk is that you reaffirm to the Australian people the centrality of that great Australian institution, which is already entrusted with every aspect of our daily life from foreign affairs to health, from education to the nation's defence, then you are risking no more than you risk daily in your continuing mandate to parliament. You will have discharged your duties if you give the people of Australia a clear model upon which to vote at a referendum. But you will have acted beyond reproach if that model is enacted upon the cornerstone of the very parliament that unequivocally shapes their lives, their history and their future. I urge you to vote for this motion.

Mr TURNBULL- A point of personal explanation. I do not propose to compound-

Mr RUXTON- I did not hear him. Is he closing the debate? He has had a second time. He got two starts at the microphone.

CHAIRMAN- He is not closing the debate. He is making a personal explanation.

Mr CLEARY- I sought the same request from you and you would not let me come forward.

CHAIRMAN- Mr Cleary, you did not seek to make a personal explanation.

Mr TURNBULL- I do not propose to compound the unfortunate lapse of his normally impeccable good manners in Mr Costello citing a private conversation with me. I have not said anything to him or anybody else that is inconsistent with what we have said here today. Mr Costello is, however, quite right when he says parliament can ignore that proposal for community consultation. Of course it can. It can ignore everything we recommend but it will ignore these recommendations at its peril. I have no doubt that the parliament will take this into account.

CHAIRMAN- I have received a proxy from Mr John Anderson for Senator Nick Minchin. The hearing is suspended until 2 p.m.

Proceedings suspended from 12.53 p.m. to 2.00 p.m.

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Last updated: 21 October 2000