CONSTITUTIONAL

CONVENTION

[2nd to 13th FEBRUARY 1998]

TRANSCRIPT OF PROCEEDINGS

Tuesday, 3 February 1998

Old Parliament House, Canberra

The CHAIRMAN (Rt Hon I. McC. Sinclair) took the chair at 9.00 a.m. and read prayers.

CHAIRMAN - In accordance with the resolutions passed and amended yesterday morning with respect to the revised rules of debate and order of proceedings, I table, and will ensure they are circulated, amended rules of debate and orders of proceedings for today's conduct of business. In addition, I table a list of 827 submissions to this Convention received from members of the Australian public. In so doing, I explain that there is to be a summary of each of those submissions provided to all delegates. The full submissions are available in the secretariat and will become part of the proceedings of this Convention. I also extend to members of the public who have sent those submissions our thanks for their input into our deliberations.

I also will table three proxies that have been received. The first is from the Premier of Victoria, the Hon. Jeff Kennett MLA, wishing to advise that he has requested Dr Robert Dean MLA, the Victorian Parliamentary Secretary for Justice and the state member for Berwick, to be proxy on his behalf. The second is from Sue Napier appointing the Hon. Michael Hodgman QC, MP to represent Mr Rundle, the Premier of Tasmania, instead of Mr Groome, who had been the nominated proxy. The third is from Senator Alan Ferguson, who has had a recent death in his family, appointing the Hon. Tony Abbott MP to act as his proxy until the end of this week.

On a procedural issue, we have had a request from the media to take shots of a working group in session. I know this will disrupt the proceedings of working groups and recognise that it is not terribly practical but, unless there is any objection, I propose to agree, subject to the invasion being brief, to arrange with one working group at its commencement of proceedings this afternoon a brief photo session. The secretariat will make arrangements with the convenor of one of the working groups for this purpose.

The first item on today's agenda is endorsement of the membership of the resolutions group. There were 25 nominations to the resolutions group, five of whom are women. We had one list with only four women, and we found that one group had not had nominations received, so two additional names have been added to the resolutions group. In view of the resolution suggesting gender equality in the constitution of the resolutions group, the Deputy Chair and I accepted all the nominations of women and have chosen six men in order to provide a balance, with an odd number to allow resolution. I also propose that Barry Jones be the non-voting chairman of the group.

The Resolutions Group will be delegates Lloyd Waddy, Malcolm Turnbull, Wendy Machin, Jeff Shaw, Pat O'Shane, Moira Rayner, Daryl Williams, Julie Bishop, Stella Axarlis, Gareth Evans and the Most Reverend George Pell.

The motion moved by the Hon. Neville Wran and seconded by the Reverend Tim Costello is:

That the proposed arrangements for membership of the Resolution Group be endorsed.

Motion (by Mr Wran) agreed to without dissent:

That the Convention endorse the proposed membership of the resolutions group.

CHAIRMAN - We now move to receive reports from yesterday's working groups. We have allowed, as you will recall, 15 minutes for each report. Each working group can use that whole 15 minutes. If you wish for the rapporteur or the chairman alone to speak for that 15 minutes, you may do so. If, on the other hand, three of you wish to use five minutes or some other multiple within that 15 minutes, that is at your discretion so to do. You have 15 minutes within which to debate the report.

Issue 1: If there is to be a new head of state, what should the powers of the new head of state be and how should they be defined?

CHAIRMAN - I envisage that in the course of today's proceedings we will have the general debate on the subject of the working groups - that is, if there is to be a new head of state, what should be the powers of the new head of state and how should they be defined. The course of the general debate on that subject will enable each of the delegates to comment on any aspect of any of the resolutions, or all, if they wish. The actual moving of the motions will be a formal process at 3 o'clock.

At 3 o'clock, we are going to allow some dialogue. We will have multiple resolutions so that, unlike an ordinary meeting, we will have a series of resolutions with each of the amendments that have been proposed. I know it is a bit of a disfigurement of this beautiful old chamber, but we have two screens, and it is intended that the resolutions can be displayed on the screens. If there are amendments, they can be included on the screens. It expedites the deliberation. We will have each resolution, with each of the amendments, so that by 4 o'clock we will all be aware of what the resolutions are and what the amendments are. Then we will proceed seriatim to consider each of the resolutions.

It is more than likely - in fact, it is inevitable - that a number of the resolutions will either be in conflict or might well be complementary. However, we intend to take a vote on each resolution. You will recall that they are, under our rules of debate, provisional resolutions. Those that receive more than 50 per cent support will then go as provisional resolutions to the resolutions group. They will be returned at a later stage of the Convention when other resolutions have been considered, and we will consider each of the resolutions as final resolutions, hopefully producing one on each of the principal subjects. At this stage, it may well be that we have several resolutions that go forward for reconsideration as final resolutions. That way we have some chance at producing the recommendations that it has been suggested is our task.

I invite each of the working group reporters to report to us. Working Group No. 1 suggests, with respect to the head of state, the same range of powers with existing constraints on their use, no express provision to be made at the Convention as to the guide to the use of the reserve powers. The first speaker of Working Group 1 is Professor Greg Craven.

Professor CRAVEN - Thank you, Mr Chairman. As has been said, our working group began with the proposition that there would be no change in the range of powers. I have to say at once that the working group had a satisfying, almost sickening, degree of unanimity in its views. We reached a strong consensus on our position and my instructions are to put it with the strength that the working party felt it. While we were not absolutely unanimous on absolutely every issue, there was a strong consensus. If I get it wrong, I am confident it will be pointed out to me loud and long for the rest of the Convention.

I was instructed by my working group to start from the central proposition not of theory in relation to the powers of the head of state but of practicality, and brutal referendum practicality at that. It was felt that the issue before this Convention is the issue of achieving, so far as possible, a consensual republican model. That, the working group strongly believes, is achievable without any degree of codification whatsoever. Codification is an unnecessary add-on to any plausible model - subject to some exceptions that I will come to - to which this Convention may agree. For this reason, this working group is strongly opposed on the grounds of practicality to codification of powers. We firmly believe that any such attempt to codify will be all but fatal to the chances of a republican proposal at a referendum. We believe that to bring forward a codification in a substantial sense - a total codification or something approaching a total codification - would come very close to dooming any republican proposal.

The reason for that is simple: the conventions of responsible government surrounding the powers of the head of state are complex, contentious and emotive. Any attempt to codify them would involve re-fighting battles so old that many of us here can scarcely recall that they occurred. The best example is, of course, the conventions and the powers concerning the blocking of supply by the Senate. But there are many others that could be pressed into service in a referendum campaign. The working group wished to make it absolutely clear that we understand the history of referenda in this country and that any attempt to put forward a strong codification would excite inevitable opposition, dissension, confusion and antipathy and would gravely imperil any attempt to put forward a consensual republican model.

That is the practicality. The working group did not see this as a view, or as arguable or possible. The history of referenda in this country proves that in the event of confusion, dissension, or serious opposition proposals fail. So why put forward a matter that is bound to have that effect in relation to the republic? As it happens, we did not devote our time entirely to practicality. We also looked at the question conceptually and we were delighted to find that the conceptual arguments against codification are as compelling as the practical ones.

The first point that I would like to make is that the working group did consider the question of why it is that so many people are in favour of codification. The view was put, although it was not unanimously agreed to, particularly by some of the lawyers present, that it represents the lawyer's natural desire to believe that no rule can possibly work or indeed exist unless it is written down in black and white, preferably by a lawyer, and that this comfortable expectation, while understandable to those of my own profession, is not in accord with the reality of our constitutional system, which is not a rule book but an organism, a subtle and evolving organism which does not require being - nor can it be - reduced to the status of a telephone directory.

Corresponding with that point the working group formed the view that one will never be able to codify all the conventions of a system. There will always be constitutional conventions. A constitutional system without constitutional conventions has never existed. Were we to write them all down now, ambiguities would arise. How would they be fixed? Not by difficult constitutional amendment but by the evolution of other conventions. So codification, it seems, is an illusion, and it is a double illusion because not only is it the case that there will always be conventions but also it is impossible to reduce conventions of the Constitution to writing for at least three reasons.

The first is that, as we all well know, we cannot agree on most of them, and certainly on the most important. If you have, as the old joke goes, three constitutional lawyers talking about the Senate's power to block supply, you will get four views. I had dinner with George Winterton the other night and between us we had about six views. There is no way we will ever agree on that. Nor will we agree on relatively minor conventions, like a deputy prime minister succeeding a prime minister when a prime minister dies.

A second problem is that these conventions are complex. It has been suggested that that is a convention - there are those here, I am sure, who would assert that that is a convention. The point that conventions are complex and hard to reduce to writing is not well appreciated. There has only been one real attempt in recent times to comprehensively codify a convention in the Australian Constitution. That is section 15 dealing with the minute question of casual vacancies in the Senate. That section is two pages of densely drafted gobbledegook. It looks terrible in the Constitution. I can remember showing it to a Canadian academic and she laughed and said, `How could you put that in your Constitution?' Of course, the real joke is that it does not even work, even though it is two pages long. Are we seriously going to do that in relation to other conventions?

The final point that we wish to get across is this: there is a dreadful danger with conventions that you will get them wrong and, best of all, you will not know that you have got them wrong until the unique situation arises some years down the track and then the codification does not work and is practically impossible to fix. Perhaps that leads into the next point that appealed to the working group: a concern over the loss of flexibility. It is true that conventions evolve, and evolve for the better. For example, the convention that the Australian Prime Minister provides advice to the Governor-General after losing an election on the identity of his or her successor is not part of the Westminster system of government. It evolved well and in the interests of stable government in Australia. It should have evolved and that was a good thing. If one looks at the attempted codification of conventions by the great lawyer, the late Herbert Evatt, written in the 1930s, and imagine that they were to apply now, had they been codified as he wished, one realises how dangerous and futile an exercise it is.

The working group addressed the issue often raised in favour of codifying conventions: transparency - we must have a Constitution that everyone can read and everyone can see what the basic rules are. The working group would make two points in relation to that. One is that, as I have said, it is impossible to codify all conventions and so one will never have a completely transparent Constitution. That degree of transparency is an illusion. But secondly, the working party found that when one looks at the so-called ignorance of the Australian people about the Constitution, the bits that they understand best - and I can assert this as a teacher of young people in areas related to this - are the bits that are not written in the Constitution. If you ask the average young Australian person about section 92, they will, with all appropriateness, look at you blankly. If you ask them what is in section 51, they will tell you that they do not care. But if you ask them who the Prime Minister is and how you get into that unpleasant position, they will know the answer. Where does that come from? Convention. So it does not seem to us that transparency is the argument that it is sometimes put forward as.

The working party was very much opposed to writing unenforceable conventions into the Constitution in some sort of hortatory statement for a number of reasons. One was that there seemed to us to be some sort of moral contradiction in formally putting rules into a Constitution and then saying, `Ah, yes, but they are not really binding or enforceable.' Secondly, for those of us who are addicted to transparency, the Constitution is certainly less transparent if people read rules that are not in fact going to be as judicially enforceable as other rules. Finally, there was a concern in the working party that, even if you stated those rules to be non-judicable, one could not guarantee that the courts would not at some point become involved; that, even if there was a statement that they were not to be enforced, there might be some indirect future attempt to enforce them.

The working group was strongly of the view that conventions should not be enforced through the courts. To do so would involve judges in high politics, to which they are unsuited, and would attract an odium that should not be imposed upon them. We were concerned by such spectres as the possibility of a prime minister seeking an injunction to prevent his or her dismissal by the head of state.

In short, our view was that the chief protection of the constitutional system in relation to the powers of the head of state was not an illusory codification, beloved by lawyers as it may be, but rather, through the operation of a parliamentary and electoral and social system of accountability and checks and balances, a good deal more sophisticated and compelling than some of its critics would give credit to.

There is, of course, an exception, as there always is. Were there to be an elected head of state - it would appear at this stage that is unlikely - the working group was unanimously of the view that one would require full codification of powers to deal with the polarities of popular support that would emerge. That is not to say that the members of the working party support that position. I think the position was that they accepted a grim necessity to meet an even grimmer occasion. The working party also considered the question of what would be required if there were an election by two-thirds of a joint sitting of parliament. Again, the working party agreed that full codification would be required. They did not believe that would be the case were a model to be adopted where the Prime Minister or a body answerable to the Prime Minister were to appoint the head of state.

There is one aspect of codification that the working party would support. The working party sees no harm in codifying, if that be the word - perhaps constitutionalising - the universally accepted principle that the Governor-General acts on the advice of his or her ministers, whether in the federal Executive Council or otherwise. That is uncontroversial, I believe; it raises no particular issue. In relation to the scope of powers, the working party also would support the removal of the otiose powers of reservation and disallowance, but beyond this the working party would not be prepared to go.

In summary, I suppose the working party has got to a twin position of practicality and principle. Practically, an attempt for substantial codification leads in only one direction: a defeated referendum for a republic. If it leads in another direction, from a personal note may I say it is in a sense the first test of consensus in this Convention because I believe that there will be a number of delegates, of whom I am one, for whom this will be the point of departure.

Substantial codification would effectively define out the question of a republic for a number of those people, and I believe the Convention has to think of this very carefully and it has to think of those two issues. It must think firstly: what is the practicality? Do we do this if we do not need to, with the consequences it inevitably must have? It also must consider those strong grounds of principle based on an understanding of our system which equally strongly militate against the codification of conventions.

CHAIRMAN - Just so the delegates will be aware of the way in which we proceed, Professor Craven is the rapporteur of Working Group 1. Having presented his resolutions and recommendations, they will be a matter, when we have come to that stage, of consideration by all speakers and will be addressed for or against - or there will be foreshadowing amendments during that course - when we look at the principal speakers list with respect to the item for today. For Working Group 2 the rapporteur is delegate Julie Bishop. The task of Working Group 2 was to consider the same range of powers with express provision to incorporate by reference the conventions governing the use of reserve powers.

Mr GIFFORD - May I ask one question. I just want to be clear as to what is happening. Do we criticise any defects as we see them separately in each of the resolutions or are we to just have the one after each has gone through this process? We cannot take each one separately?

CHAIRMAN - No, we are going to deal with all of them. We are opening up for the consideration of the Convention all the recommendations, all the reports and all the resolutions of the working groups. When we go to that general stage of debate which is identified as the speakers list, which will cover the item for today, you may talk on any one of the reports or all of them. You do not do it now; you wait until we have this general contribution. Later this afternoon, when we have speakers selected from the floor, there will be a formal moving of the resolutions, amendments will be taken and the voting will not take place until 4 o'clock.

Ms BISHOP - The majority of this Convention felt it necessary yesterday to move amendments to the order of proceedings to guard against gender imbalance. They need have looked no further than our working group to have their fears dispelled. In our group of eight, the six women quickly took control of the convening, wrestled control of the chair, the discussion, the agenda, the note-taking and the reporting. Our two male delegates were, it seems, singularly underwhelmed by the gender imbalance. Then again, one could not have hoped for a more cohesive and amiable discussion group to give serious and detailed consideration to the task at hand. As we saw our task, it was to take the key issue - if there is to be a new head of state, what should the powers of the head of state be and how should they be defined? - and come up with the arguments in favour of one particular option. We found early in our deliberations that the option we favoured for a head of state elected, for example, by a two-thirds majority of parliament - or indeed the McGarvie model - was not the option we believed to be appropriate for a popularly elected head of state. The option we considered is that the head of state would have the same range of powers as the Governor-General but inserted into the Constitution would be an express provision to incorporate by reference the conventions governing the use of the reserve powers.

I saw this option as our onion, and let me peel back each layer to demonstrate our thinking in reaching this conclusion. Firstly, we determined that the head of state, if appointed by parliament and otherwise not popularly elected, should be given the same powers currently vested in the Governor-General - as it has been most eloquently put elsewhere, a blueprint of the powers of the present office of the Governor-General should be bequeathed to the head of state. Those powers would include both the ordinary and the reserve powers. We did not see a case for dividing the powers between one or more other holders of public office, nor did we consider vesting the reserve powers elsewhere, such as in the House of Representatives. Where else other than with the head of state should those powers rest? We opted for the head of state.

We did not advocate a change to an executive-style head of state, nor did we argue for the head of state to be largely confined to a ceremonial role for the purposes of this debate. We continued to opt for the constitutional umpire role, ordinary and reserve powers intact. We are swayed by the notion that the vesting of the reserve powers in the head of state is one of the pillars of responsible government and it has served us well.

That took us to the next layer of our onion. The Governor-General currently derives powers and functions from the Constitution. A little reading of the Constitution leads one to assume extensive powers are conferred on the Governor-General and that those powers are conferred on the Governor-General as the Queen's representative. In practice, these powers are circumscribed by convention. We took no issue with the fact that some powers are conferred on the Governor-General and some on the Governor-General in Council. We treated it all on the same footing.

The reserve powers - those that can be exercised without or contrary to the advice of the Prime Minister - can be inferred from, amongst others, sections 5, 57 and 64 of the Constitution. We recognise that these are considered to be very limited; as discretionary powers they are powers in reserve. They are exercised only in extraordinary circumstances to prevent a constitutional crisis - supposedly - and they are powers which exist to allow the head of state to ensure that the government is conducted in accordance with proper constitutional principles and that at the end of the day the ultimate supremacy of the electorate is upheld. The conventions that surround the exercise of the reserve powers are unwritten. They are not rules of law, although they are regarded as binding. Some are clear and settled; others are somewhat controversial.

One concern was that the Governor-General's powers are governed by constitutional conventions that traditionally control the exercise of power by the Queen and her representative and that, therefore, with the removal of the monarchy from the Australian Constitution, the conventions may well then not be applicable - they may disappear if the transfer of powers does not include reference to them.

A transfer of powers without more would leave open the question as to whether the head of state would feel obliged to observe the conventions that currently govern their exercise. The assured continuation of the conventions could be provided in two ways: by amending the Constitution to preserve explicitly the powers and conventions that govern them without specifying what they are or by codifying them in whole or in part. We argued against codification, except in the case of a directly elected president - and I will come to that position shortly - for reasons similar to those expressed by Professor Craven's group, and I will not take up time by going through them again. But we saw strength in leaving the conventions undefined to allow them to retain their flexibility. As the reserve powers are exercised on extraordinary and rare occasions, the conventions are likewise extraordinary and rare and therefore need to be flexible, with the capacity to respond adaptively to unpredictable situations.

We recognise that the mere reference to unwritten conventions in the Constitution may present its own problems, but we saw this as the safeguard or the hook, if you like, to preserve them in the transition to include in the Constitution a clause specifying that the powers of the head of state must be exercised in accordance with existing conventions. We were anxious that such reference not convert the conventions into rules of law - that they remain unreviewable. The reference in the Constitution helps take away the ambiguity that currently surrounds the issue of the reserve powers and the legitimacy, particularly where there is to be a transfer of powers.

We were unanimous in our view that a directly or popularly elected head of state or president raises different considerations. We were not content to leave the status quo in respect of the powers, even with our added clause to the Constitution on the conventions governing the reserve powers of such an elected president. We believed that the powers of a head of state so elected must be specified and, might I stress, must be limited and specified. None of the lawyers present were prepared to even contemplate whipping up a quick code of powers. We leave that to others considering that option.

Finally, one important issue was that of the dismissal of a head of state who departed from existing conventions. We wished the mechanism for dismissal to be swift - short and sweet. Thank you.

CHAIRMAN - Thank you, Ms Bishop. Working Group 3's rapporteur is Mary Delahunty. I call her to the dais. The task was `Same powers with a written statement of the conventions governing the use of reserve powers as a non-binding guide'.

Ms DELAHUNTY - Thank you, Mr Chairman. I should say that support in our working group for the notion of a written statement of the conventions governing the use of the reserve powers as a non-binding guide was definitely underwhelming. It became very clear, as we waited patiently for the views of the rather small working group, that we were all there, in fact, to hear arguments supporting the notion of a non-binding guide - to hear them with an open mind, not to put them. No arguments were forthcoming. Indeed, none were put in support of the notion of a written statement as a non-binding guide.

There was discussion. There was discussion and, indeed, there were differing views on the challenge before this Convention of codifying the reserve powers, incorporating them by reference or making no express provision governing the use of the reserve powers, as now. These discussions showed an open mind, in most cases, on these matters. However, there was unanimity that if, after discussion at this Convention, agreement could be reached on a written statement - in other words, codification or partial codification - then this written statement should be binding. We held the view that if an achievement of such magnitude were to be made - indeed it would be a sensational breakthrough at this Convention if agreement could be reached on a written statement of the conventions governing the reserve powers - that that achievement should be celebrated and indeed applauded by being incorporated as binding rules in our Constitution.

In addition it was felt that, should this agreement occur on codification or partial codification, such a written statement would in fact render our Constitution more explicable to the political participants and indeed to citizens alike. There was a view in our working party that our Constitution as the written document, which is the structure of our political system, should be explicable to citizens, should be clear, should be concise and should give an accurate guide to the way our political system works in practice rather than a theory perhaps now 100 years old.

There was a view that part of the task of this Convention is to engage Australians in the work that we are involved in, a work that says it is possible - and there is a great sense of excitement amongst the delegates - to imagine renovating the Constitution so that it begins to look the way we are rather than the way we were. So the discussions were rather limited to the notions of that challenge.

Let me say, Mr Chairman, that we dismissed very quickly the idea of a non-binding guide should we agree on a written statement of the conventions governing the reserve powers, and our resolution makes that clear. There was no support for the notion of a non-binding guide. Thank you very much.

CHAIRMAN - Thank you. There is still time within that working group report. Does any other member of the working group wish to comment? If not, we will move to Working Group 4. The rapporteur is Professor George Winterton. The task of this group was `Same powers with codification of the conventions governing the use of the reserve powers as binding rules'.

Professor WINTERTON - Thank you, Mr Chairman. This group had a rather spirited discussion but achieved remarkable unanimity, and the resolutions have been set out, as you see.

A word of introduction may be helpful on the way the Constitution dealt with the powers of the Governor-General. The powers are conferred on the Governor-General and the Governor-General in Council. The powers conferred on the Governor-General in Council are clearly acknowledged by the Constitution to be powers exercisable on the advice of the Federal Executive Council - in other words, the government. The powers conferred on the Governor-General were intended to fall into two categories: those that are also exercisable on the advice of the government and those few that are reserve powers - powers where the head of state has some independent discretion.

There was debate on the original conventions in the 1890s, particularly from Deakin, suggesting that it would be wiser to clarify those that were intended to be exercisable on the advice of the government - that is, to say this expressly. But this was resisted by certain people, particularly Barton, who thought that you did not write the conventions into the Constitution, rather that the Constitution expressed law not convention. `We would be laughed at in London,' he said, `if we tried to draft a Constitution like this. Everyone knows it's drafted against the background of British constitutional history because we are vesting powers in the Crown.' Therefore, the Constitution was left in the present form.

The difficulty in the transition to the republic is that the conventions, which determine and ensure that most of the powers except the reserve powers are exercisable on the advice of the government, are conventions of the Crown - part of British and Australian constitutional history. Once the link with the Crown is cut, one could not assume that those conventions continued. That is why one cannot simply transfer the powers to a republican head of state and say absolutely nothing on the issue.

The first resolution of the working group was the same as that of the first group, and that is that we thought it would be wise for the Constitution to state expressly, for the reasons I have mentioned, that the link with the Crown would be cut and the conventions need not automatically apply. It would be helpful for the Constitution to state expressly that all the non-reserve powers, all the powers exercisable on the advice of the government, such as the command-in-chief of the armed forces, the power of the Governor-General to summon parliament, vested in the Governor-General - not the Governor-General in Council but exercisable by convention solely on the advice of the government - should be set in the Constitution as a matter of law to be exercisable on the advice of the government. This would greatly clarify the position, and this indeed was recommended by former Prime Minister Paul Keating in his 1995 statement.

Secondly, we were of the view that it is wise that there be some reserve powers. We saw the role of the head of state as acting as ultimate constitutional guardian or umpire. We thought it was desirable that there should be some reserve powers to enable this role to be fulfilled. The essential reserve powers we agreed upon are those that are universally conceded, that is, basically three: to appoint the Prime Minister, to remove the Prime Minister, and to refuse to dissolve parliament; or, of course, in the case of a double dissolution, refuse a double dissolution.

We believe that the current balance of power between the government, the Prime Minister and the head of state should be maintained - that is to say, that the head of state should act as ultimate guardian - and, except where the Constitution makes express provision, the basic convention should continue to apply. We thought it essential that there be a provision, which South Africa adopted in 1961 when it became a republic, that the conventions of the monarchy continue into the republic. This provision would indicate that these were conventions, that they would continue to be conventions, that they would continue to be adaptable and that they would not be brought before the courts, they would not be justiciable.

On the basic question as to whether the conventions should be codified, we took the view, in sympathy with many of the views expressed in some of the earlier working groups, that it was not desirable to seek to codify the conventions entirely; neither desirable nor feasible. It was not desirable because all flexibility would be lost. The future cannot be adequately predicted. Unforeseen circumstances will arise. If the head of state is to act as constitutional guardian, you obviously need some flexibility to adapt to crises that will arise, and they cannot be predicted. That is why it is certainly undesirable. It is impossible really because there is considerable disagreement about the conventions - for example, in particular in regard to what should happen if the Senate blocks Supply. So we thought it was both undesirable and unfeasible to seek to codify completely.

So we agreed with a lot of the conclusions reached by the first working group. But this is not an all or nothing situation. I think this is an important point to emphasise. This is not an all or nothing situation; it is not complete codification or silence. There are advantages in codification. When Dr Evatt, for example, advocated years ago full codification, he pointed out that the advantages include certainty on all sides - not only certainty in terms of a government knowing how far it could go but also certainty in the head of state being able to exercise powers which might not be exercised on the ground of uncertainty. So there is certainty and checks and balances on both the government and the head of state.

Also there is the very important factor that the Constitution should, if possible, provide some illumination to those reading it. The Australian Constitution is often criticised for presenting an inaccurate picture. It is actually only chapter 2 of the Constitution, the chapter dealing with the executive, that presents an inadequate picture. All the other provisions do reflect actual reality. Those on the courts, those on parliament, do not present a misleading picture. Those on the executive do, for the simple reason, as I mentioned a moment ago, that the framers, particularly Barton, emphasised that, although the Constitution was to be read against the background of British and Australian colonial constitutional history, it would be unwise to express these things. These are matters of practice and convention, not of law, and the Constitution should focus on law. So that is why it is misleading. If one can make it a little less mysterious and state what is widely agreed upon, this would be an advance.

We took the view that full codification was unnecessary and undesirable but partial codification was desirable, if possible. Essentially, the view we reached was that what we should try to do, if possible, was to codify those conventions that are broadly agreed. One may ask what is the point of codifying those that are broadly agreed; if everyone agrees upon them there is no need. But it is not as simple as that because the situation is that, first of all, even those that are broadly agreed upon will, if they are put in the Constitution, educate those reading the Constitution and help to explain to people how the Constitution works.

But it must not be forgotten that Premiers and Prime Ministers, in the flush of ambition, if I can call it that, sometimes try to slip around the rules. We had a good example of that in Tasmania in 1989. One of the universally conceded conventions is that a Premier or a Prime Minister cannot, after losing a general election, ask the Governor or the Governor-General for another election before parliament has met and proved unworkable, for example by not being able to elect a Speaker. Yet Premier Gray of Tasmania basically sought to do that. He essentially said to the Governor, having lost a vote of no confidence as soon as parliament met, `If I were to ask you for another dissolution, how would you react?' And the Governor very wisely said, `I would not react terribly well. In fact, I would not approve.' So he said, `Then I will not pursue it,' which was a completely proper action on his part. That demonstrates that the fact that the convention is pretty well broadly agreed upon is not really a reason for not expressing it. Politics being a hard business, as the Hon. Richard McGarvie has often mentioned, it is essential that there be controls placed in the Constitution and people be restrained in trying to take advantage of the rules.

So, as you see, we concluded that a partial codification was desirable, and there is a partial code in the report of the Republic Advisory Committee which I did have some role in helping to draft. The Republic Advisory Committee in 1993 had a lot of material before it. Not only did it have submissions from the public but also it had the work of the Constitutional Conventions between 1973 and 1985, it had the work of the Constitutional Commission, the work of many authors. It drew up a partial code. Unfortunately, you do not have a copy at the moment but it is coming around and I hope it will eventually be put up on the screen. The partial codification basically seeks to simply express the virtually uncontroversial conventions. The other matters would simply be left to be governed by convention, as they are now.

Perhaps I can just very quickly mention the essential features of the code, basically dealing with the three reserve powers I mentioned. On the appointment of the Prime Minister, everyone would agree that the Constitution should mention the Prime Minister, should say the Prime Minister is the head of government and state the basic, fundamental principle of responsible government - that is, that the Prime Minister be the person able to command the majority of the lower House. That is essentially, as you will see, what this draft provision does. It basically says that after a general election the Governor-General shall appoint the person most likely to command the confidence of the House as Prime Minister.

If I may make a personal note here, I think there is an advantage in expressing it this way rather than actually leaving election of the Prime Minister to the House, which some constitutions do - Ireland, Germany and Japan, for example - because Irish commentators have commented that if the House is closely divided it can be rather difficult getting a resolution through. Also you need a positive resolution of confidence from the House, whereas, if you have the Governor-General choosing the Prime Minister, the Prime Minister needs the confidence of the House to operate but it could be in a sense a passive confidence, lack of no confidence, rather than a positive vote of confidence. It gives greater flexibility without any real loss of the democratic principle that it will be the people's representatives in the lower House that will determine who should be the government.

On the question of dismissal of the Prime Minister, a highly controversial issue, essentially the draft code only mentions two occasions. One is when there is a constructive vote of no confidence in the House. Just one word of explanation on that. There are two kinds of votes of no confidence. There is a simple one that says, `We do not have confidence in X.' That has been the normal British practice. But there is also a constructive no-confidence resolution, a notion Germany developed after the Second World War in light of Weimar experience, which basically says, `We do not have confidence in X but we do have confidence in Y.' The House of Representatives, for example, passed such a resolution on 11 November 1975 saying, `We do not have confidence in Malcolm Fraser; we do have confidence in Gough Whitlam.' The Tasmanian parliament passed such a resolution in 1989, and so on.

Where you have such a constructive no confidence resolution, the House is not just saying, `We do not have confidence in the government.' They say, `We do have confidence in a certain person.' The working party believed that in that case the head of state must appoint the person the House has said they have confidence in. After all, the role of the head of state is to determine who is most likely to have the confidence. If the House says, `We have confidence in X,' there is not really much room for doubt.

Also we believe that there should be removal on the ground of illegality. This is a bit controversial - the degree to how it might be expressed, whether you say `gross constitutional breach', whether you include the disobeying of court orders. It embodies the 1932 dismissal of Lang in principle. After a lot of thought, the Republic Advisory Committee drew up a draft provision, which will be put before you. It does involve going to the High Court to get a ruling on the question of legality - not on the question of whether the Prime Minister should be dismissed but whether the government is behaving unlawfully, breaching a constitutional provision. If the High Court says yes, then the Governor-General or the head of state acts accordingly.

Also, in the case of refusal of dissolution, the third one, as you will see in the draft code, it is essentially expressing what is completely uncontroversial. You cannot give a dissolution of parliament or an election to a Prime Minister who has lost a constructive vote of no confidence, nor before the House has met after a general election, nor while a no confidence resolution is pending before the House has determined the issue.

Finally, similar to the earlier working groups, we recommended removal of obsolete provisions such as disallowance by the Queen. That obviously would go if one had a republic. Also, a point that is often not raised is that there is an executive power of prorogation, as those of you who are parliamentarians will be very familiar with. It is executive adjournment of parliament in a sense which wipes out all parliamentary business. This is really an archaic power. We took the view that the constitution would be well served by abolishing it.

Basically, in summary what we urge is that partial codification, not full codification, be adopted. That gives the perfect balance between the arguments put by the earlier groups. It gives flexibility but also certainty and educates the public. We recommended that the Republic Advisory Committee's draft code be taken, at least initially, as the model.

CHAIRMAN - Thank you, Professor Winterton. Working group 5 - the present powers of the head of state and the defects of the known republican alternatives. I call on delegate John Hepworth.

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