Mr RAMSAY - Would it be possible to ask a point of clarification on Professor Winterton's presentation?

CHAIRMAN - No, not at this stage. There will be several opportunities. You can make the comment either in your general address or during the debate across the floor later this afternoon.

Mr RAMSAY - Sir, I am not wishing to comment but to ask a question. The attachment that relates to workshop 7 seems to be the document that Professor Winterton said we did not have. I wanted to be sure.

CHAIRMAN - In those circumstances, Professor Winterton, can you respond?

Professor WINTERTON - Yes. What is attached is the Republic Advisory Committee's draft for full codification. The partial one is not attached but copies are being produced and will be circulated.

CHAIRMAN - It should be headed 5, not 7, I am told. I call on John Hepworth.

The Right Reverend HEPWORTH - This working group might, from its title, be construed as consisting entirely of constitutional monarchists. In fact, it was consisted of a substantial balance of different views from around the Convention. In spite of that composition, it reached a remarkable degree of unanimity. There was not absolute unanimity on the report that is before you but a substantial majority were for this, including the majority from those beyond Australians for Constitutional Monarchy.

It was our contention in the working group that the proper place for beginning a debate on the powers of the head of state is the current status quo. Since that has been somewhat distorted in subsequent debate, we began the resolution by outlining the current status, drawing attention to the fact that the status quo has been substantially modified, particularly by the passing of the Australia Act but also as far back as the passing of the statutes of Westminster, and in fact created a significant repatriation to independent advice by Australian ministers on a range of constitutional matters that could be construed by a bald reading of the Constitution without any reference to Australian constitutional history as having been otherwise.

We went on to discuss a number of potential problems - the one around codification and the second around the tenure of a proposed head of state. The issues around codification often become confused simply because there is a natural process of codification that runs in a constitutional nation such as ours. Some conventions become so well entrenched that, if they are violated, there is a push to codify them. We saw an example of that in the aftermath of 1975. A gradual codification of conventions that become entrenched is something that we believe is a natural process and ought to be continued, but it will normally happen only once those conventions have been fractured by some crisis.

We went on to make the strong point that any form of codification of reserve powers is a contradiction in terms. Reserve powers exist for some future unforeseen constitutional crisis. If reserve power has become so clear that it can be entrenched, then it becomes part of the Constitution, and ought to do so, but it ceases being a reserve power by the process of codification.

Reserve powers must be in a sense vaguely seen because they are designed for crises that are unforeseen. It is absolutely essential that the head of state continues to have powers to resolve crises around the broad convention that the Constitution and effectively the powers and rights of the people reside in the operations of the head of state against executive government, which is a most fundamental principle of the Westminster system.

The further point that we went on to make is that, once codification occurs, it is both our constitutional experience and that of other nations that they become justiciable. The legal practice that arises out of codification leads to understandings of the Constitution completely beyond and often quite different from those which the drafters imagined would flow. In other words, it is quite possible for us to codify but subsequent legal action will lead to a complete distortion of what we might codify. I think it was Alfred Deakin who sounded that warning in 1893, when at the Adelaide Convention he noted that the Constitution that we were preparing was for generations not only unborn but unknown. Therefore, there was an element of casting a Constitution on the waters, and one must be extremely careful who one lets have a subsequent interference in it. The High Court does have a role, and everything that is codified will become part of that.

The further warning that we wanted to sound was the possibility of legal action around the relationship between a President and a Prime Minister, that once one has codified that relationship it will become the subject of action in the courts. No amount of constitutional hedging can remove that possibility.

That raises the problem - not a legal problem; the legal process could run on, as we noted, for years - that the nation is ungovernable in the meantime. So it is essentially a political problem rather than a legal problem. Providing neat legal solutions can lead to the destruction of a political process. It is one of those moments when, regrettably, lawyers who happen to be politicians have to decide whether to be mainly politicians or mainly lawyers because if they become mainly lawyers they will be very bad politicians - I notice the front row has disappeared as a result.

The final point that I would wish to make in this brief account is the question of tenure. All the republican models before us at the moment, some admittedly in more or less form, give some form of tenure to the head of state - five-year terms even by appointment of the parliament and so on.

We note that at the moment neither the Governor-General nor the Prime Minister has tenure. They do not have tenure because they can dismiss each other, and the Prime Minister does not have tenure for the further reason that his party can get rid of him at any moment, and frequently does. That leads to a situation where they are in the mutual state of uncertainty with each other. Indeed, it balances very nicely. Any account of the debates of the 1890s will show that that was an intended consequence.

Tenure for the head of state gives an ascendancy over the Prime Minister that we ought not to tolerate in a parliamentary democracy, because the Prime Minister under the current model remains without tenure and there is no concomitant proposal, for instance, for fixed terms of parliament which would give to the Prime Minister a certain element of tenure, provided of course always that the party system was not as strong as it is now, which is an unlikely consequence of subsequent change in Australia.

In other words, we were worried - and I think more worried about this than any other matter - that in republican models we are likely accidentally to shift the balance of power in favour of a president, even if none of the powers of a president are spelt out differently to those of a Governor-General. The fact of incumbency and of impregnable incumbency or of the process of dismissal depending on a string of consequent events, such as the unlikely vote of two-thirds of the parliament, or the people changing their minds, or High Court action or some other form of activity, removes the exquisite uncertainty from the relationship which is at the moment an important part of our political stability. We could go in the direction of entrenching prime ministers, which would be the destruction of parliamentary democracy as we now have it, or we could look again at the whole question of entrenching presidents, which would be a novel and, we are suggesting, utterly unhelpful development to our parliamentary democracy.

We finally exercised our minds within that context on who is actually going to own the guns. In other words, this is highlighted if one looks at the issue in that context of the question of who is the Commander-in-Chief of the Armed Forces and on whose advice a series of roles that go around Commander-in-Chief are exercised - the declaration of war power, for instance; the problems of providing Supply once one has a hapless and unforeseen war as a result of the president having a bad morning. In other words, at the moment we quite obviously balance that power once again quite exquisitely, and even so have had problems with it both in the Second World War and in the Vietnam War period, in which the roles had to be spelt out anew. So we were concerned that, if we begin to look at absolutely practical things, that relationship becomes quite important and ought not to be tilted in the direction of presidents.

Finally, one member of the working group suggested that it all becomes terribly clear if we readopt capital punishment. We would then have very obvious and open debates between the president exercising executive power and the ministers advising the person in the way that they do in the United States, particularly in the states. Then the relationship becomes stark and the rights of each become extremely important. Perhaps we need to consider worst case scenarios in order to highlight the importance of getting the balance of power right.

CHAIRMAN - Working Group 6: Broader Powers for a New Head of State. I understand that delegate Andrew Gunter is the rapporteur.

Mr GUNTER - Mr Chairman, I report on behalf of Working Group 6, which has presented its draft resolutions on the basis of broader powers for a new head of state. Members of Working Group 6 wish to emphasise that the resolutions are compatible only with our head of state directly being elected by the people, as it would be indefensible to confer additional powers of the kind proposed to an appointed head of state lacking the accountability to the public that the public increasingly demands. Mr Chairman, owing to a minor typographical error, I would be grateful for leave of the Convention or a ruling from you that subparagraphs (k)(vii) and (viii) in resolution A be renumbered paragraphs (l) and (m) for clarity and consistency.

CHAIRMAN - We take note of your request and so adopt it.

Mr GUNTER - The purpose of resolution A is to promote the development of a system of parliamentary government which necessarily involves the maintenance of the separation of the role of the executive government, the Prime Minister and cabinet, from that of head of state, although in a significantly modified form from that applying currently. Further, the presence of members of the executive government in parliament as voting members with full legislative rights and responsibilities is maintained.

In resolution A we have summarised a range of provisions that vary, codify and expand on the head of state's powers in a manner that both reflects and requires the greater accountability to the voters that a directly elected head of state has. The powers of the head of state to appoint and dismiss a Prime Minister are generally an inclusive codification of those of the conventions regarding reserve powers on which there is broad agreement. The relationship between the Prime Minister's commission from the head of state and the confidence of the House of Representatives remains. However, more specific provisions based on those developed by the Clem Jones group have been included with regard to the dissolution of parliament as a whole or the House of Representatives alone when contentious events such as the inability to secure passage of appropriation bills occur.

Provisions regarding the holding of joint sittings to resolve deadlocks between the houses have been expanded to embrace a limited form of veto, in effect enabling the head of state to refer legislation presented for assent back to parliament for its reconsideration. At a joint sitting for that specific purpose, the veto could be overridden. The purpose of providing this additional but constrained power is to establish a mechanism for further public debate on legislation the head of state has concerns about, followed by a vote of parliament in the light of any public reaction to the actions of both parliament and the head of state on that legislation.

As one of the head of state's roles is to uphold and defend the Constitution, it is proposed to allow the head of state to refer any bill to the High Court to allow its constitutionality to be determined. This provision is closely modelled on the relevant article in the Irish Constitution, which has been used on average on fewer than one occasion every two years since that Constitution was adopted in 1937. However, half the bills referred by Irish presidents to the Supreme Court have been held to be either unconstitutional or in some way constitutionally defective, which would itself bear out the value of such a constitutional provision.

For similar, though more overtly political reasons, the working group has proposed providing the head of state with the right to refer certain legislation not dealing with the ordinary annual services of the government to referendum. We are of the view that the ability to refer bills in this way as well as by the limited veto set out above would act as a deterrent to any government seeking to legislate on deeply controversial matters without adequate public consultation. The New South Wales parliament's parliamentary superannuation legislation of December 1997 is a prime example of a bill that ought to have been given wide public exposure before it came into effect, in which these suggested provisions would allow for. The provisions would allow the head of state to act as a check on the passage of legislation, particularly of a kind that is so antithetical to any mandate that an executive government in parliament could claim to have.

The remaining provisions do place limits on the powers of the head of state and may appear at first to be contrary to the purpose and title of the working group. However, by making actions that are currently in practice exercised by the Governor-General on advice from the Prime Minister and cabinet instead exercisable by the head of state on advice but also subject to ratification by parliament, the ability of parliament to scrutinise executive action is enhanced, as is desperately needed. We propose that parliamentary ratification be required for the entering into of treaties, the appointment of High Court and other Commonwealth judges and the deployment of the armed forces. As regards those of the current Westminster conventions inconsistent with the above provisions, we propose a provision to repeal them expressly.

The bulk of the provisions in resolution A, whether appearing on the surface to add to the head of state's powers or to detract from them, have been driven by the need to redress the imbalance between the practical repository of executive government, that is the Prime Minister and cabinet, and the parliament, which has occurred as strict party discipline has developed over and around the Westminster conventions of the 19th century. These are the core reasons why so many Australians are asking this Convention to pursue substantive constitutional change rather than facadism.

Resolution B encompasses a substantially different approach based on a rigorous separation of legislative, executive and judicial powers with some parallels to the United States Constitution. Reflecting that character, resolution B provides for ministers not to be members of parliament but for their appointment to be subject to parliamentary ratification. The head of state's executive power under this model is not required to be exercised with the advice of the ministers of state as would be expected under a Westminster based model such as that in resolution A.

Delegates may be concerned about a resolution that proposes placing executive power in a single office, elected or otherwise, when that power is not required to be exercised with the advice of a larger body. However, the benefit of the removal of ministers, members of the executive, from parliament is to free up parliament's role as the most appropriate body to examine and inquire into actions of executive government.

Under the Australian Constitution, in its current form and consistent with Westminster theory, parliament does have the power through questioning ministers and public servants in forums such as question time and parliamentary committees. However, in practical terms, it is the rigidities of the party system, with members of parliament, and of the House of Representatives in particular, disciplined to support executive government in most or all matters far beyond the level of support required to provide stable executive government, that has diminished parliament's role as an effective check on the exercise of executive power.

Resolution B tackles a further problematic aspect of our current structure by removing membership of parliament as the usual path to ministerial appointment. Delegates may recall the comments that Ted Mack, the Convenor of Working Group 6, made yesterday in this chamber along the lines that the ability to become a minister is currently unrelated to the ability to be a minister. The flip side of that is that the desire to become a minister, which is not an infrequent characteristic of members of parliament, erodes an MP's effectiveness as a parliamentarian. Our current arrangements ask too many of the gamekeepers of the system not only to anticipate potential poachers to keep a check on their activities but also to empathise with them and to regard them as a higher form of life. That, of course, constrains a check and balance approach to parliamentary responsibilities.

It is in the interest of any rational MP wishing to make a career that includes ministerial appointment not to be too effective in his or her role as a check and balance on executive action. Such dynamics are the underpinnings of the strict party discipline that has so significantly eroded the more worthwhile aspects of the Westminster system.

The working group also proposed further defined development of the head of state's powers in resolution B. The head of state's capacity to refer legislation presented for his or her assent to the High Court for a ruling on its constitutionality, or in some cases to the voters through a referendum, is a useful check on any major lack of legislative caution. As in the case of resolution A, this model also places sensible checks on executive action. It too requires the entry into treaties, the appointment of senior members of the judiciary and, broadly, the deployment of the armed forces to be the subject of parliamentary ratification.

The members of the working group all wish to see the erosion of the effective checks and balances resisted and a more robust, party-discipline-proof model developed for endorsement by the people. The distinct approaches of resolutions A and B, when they are measured against the practical substance of our current structure, each have real advantages. It is the attitude of the people to the particular character of each model that should determine which of them is preferred and which model is finally adopted.

CHAIRMAN - Thank you, Mr Gunter. The rapporteur for Working Group 7 is Delegate Mary Kelly. The responsibility of that working group was `Lesser powers of the head of state with codification'.

Ms MARY KELLY - As the chairman said, our title was `Lesser powers with codification'. That was the first group, I think, created under that request by 10 procedure. There was a rich diversity of views and approaches, but the group was very task oriented and produced clear and, we think, absolutely fantastic outcomes. The participants started with views ranging from not having a separate head of state at all to wanting to clarify powers regardless of what method of election or appointment eventuated. Some wanted to codify powers because it would enhance the chances of popular election and others wanted to codify existing powers but then create new and different ones in a re-invention of the role. We were as dutiful as we could be in sticking to powers and not method of election, and we did that most of the time.

The group benefited from two pieces of detailed preparatory work. The first was by Clem Jones' team, which outlined a very detailed codification not just of existing powers but also of some new proposed powers. I think you were all pigeonholed with a copy of that. The second was a draft resolution from Gareth Evans which set out an in-principle view of codification of existing powers with some details on the broad types of powers and a reference to the Senate's power over supply.

Clem's document reflected a grassroots view of the head of state as the people's champion with new powers, such as being able to ask the houses to reconsider bills already passed and allowing the head of state to address the nation and so on. Gareth's document was a relentlessly logical step-by-step approach which referred to previous work on this issue, including the constitutional conventions of 1983 and 1985 and the Republic Advisory Committee.

Surprisingly, the two approaches complemented each other and did drive us to an agreed outcome, which I will talk about. The first agreement we reached was that codification was a good thing, irrespective of any other changes to the Constitution, that it could stand alone and apart from the method of elected appointment as a desirable exercise. The three part rationale in support of our form of codification is really encapsulated in the first part of resolution 7, which you have. I will read it out to you. It says:

-full codification of the powers of the Head of State in order to eliminate, to the maximum practicable extent -

that is a very important phrase -

uncertainty and ambiguity about their meaning.

In other words, it is a good thing because, in so far as you can do it, it eliminates ambiguity and uncertainty. We supported:

-limitation, in that context, of the powers of the Head of State in order to eliminate, to the maximum practicable extent, the possibility of any conflict with the principles of responsible government;

In other words, the group made a choice about what the major principles that underpinned our system were and put its money on the principle of responsible government in line with other principles, but the primacy of it was up-front in our minds. Thirdly - and as a consequence in some ways - we supported:

-limitation of the powers of the Senate to the extent necessary to eliminate the possibility arising of the Head of State exercising discretionary power to resolve a conflict between the two Houses.

That is the up-front rationale. The details of the full codification were hotly debated, and the outcome was two resolutions. Resolution A, which is attached for you, goes on in four clauses to outline, in a general way, what full codification means to us. It is worth referring to them briefly.

Clause 1 talks about those powers expressly given and stated to be exercisable on advice - the on advice powers. That means to us that they should be retained but clarified. Clause 2 talks about those powers already expressly given but with no current indication about how they should be exercised. We say that they should be spelled out in detail. Good people have done similar work about that previously, some of which is attached.

Clause 3 talks about the reserve powers not expressly stated in the Constitution, and we know what they are. We say that they should be spelled out in detail in such a way that the head of state retains no independent personal discretion. That is not ambiguous; that is the position the group has taken. Clause 4, in dealing with the consequences of that, talks about the Senate's power to block supply and says that we should remove the Senate's right to reject or significantly delay bills appropriating moneys for the ordinary annual services of the government. There was a strong majority support from our group for resolution A.

I will just talk briefly about resolution B, the other outcome, and then go back to some of the arguments that we had. Resolution B is meant to be considered separately from A because it actually adds a new power to the head of state. It says:

Any codification of powers should include a provision enabling the Head of State to refer any Bill to the High Court for a decision as to its constitutionality.

Many of you will recognise its similarity to the Irish model. There was also majority support in the group for that resolution.

For some in the group, A and B were an inseparable package. They wanted to say yes to clarity and limitation and the primacy of responsible government but yes also to the head of state as the defender of the Constitution and defender of the people. For others in the group, A and B are contradictory - A about limiting and B about adding. By putting them separately, it allows you and us the flexibility of working through those issues.

The arguments we had within the group - no doubt they will reflect the arguments we will all have again - were around three issues. One has been mentioned: how, within a full codification model, you deal with the unexpected. We went through as many scenarios of the unexpected as we could possibly think of about how things could go wrong and what would happen, and essentially satisfied ourselves on that point that the unexpected was able to be dealt with when it came up. We satisfied ourselves on that point.

We had a lot of argument about the Senate and restricting its powers. Some members of the group put forcefully that people like the Senate's role as a house of review. To answer that, it was said that that role would continue but this power over money, which apparently is unique in Australia and not available in Westminster, was an anomaly and inconsistent with the power of responsible government. We reached consensus on that point by limiting the Senate's powers not on all money and taxation bills, as was originally suggested, but on, as the words indicate, a narrower range of money bills - `moneys for the ordinary annual services of the government'.

The third area we had arguments about was the overall conception of the role of any new head of state. People expressed concern that full codification essentially might leave only ceremonial duties for the head of state and that people would not be satisfied with that - that that was somehow a second-rate outcome. But there was a counter view put that those duties which are unifying and symbolic are incredibly important. They are not second-rate duties. They are one of the most vital duties that you could have. It is precisely the exercise of those duties that has made our current Governors-General lovable and that made people admire them.

I guess in conclusion all I can say is that the model that we have come up with is a bit like the much admired Irish model and does preserve the fundamental principle of responsible government. Thank you.

CHAIRMAN - Thank you very much, Ms Kelly. We have now concluded the reports of the seven working groups. Those resolutions we have now before us. The debate that will ensue from now until we move into this phase at 3 o'clock will enable us under clause 21 of the rules of debate to have 10 minutes for each speaker. It will also facilitate a consideration of each of those proposals in detail with whatever amendments or modifications you might feel appropriate. You may support them, oppose them, speak to any one of them or speak to all of them. Before I call on the Hon. Premier of New South Wales, the first speaker, I will table another proxy that I have received from Mr Peter Collins, Leader of the Opposition in New South Wales, for certain days and times, appointing the Hon. John Hannaford MLC in his stead.

Mr CARR - I think I speak for everyone who has listened to the reports of the working groups this morning in saying how extraordinarily impressive they were. I think anyone who might have harboured reservations about the capacity of this Convention to tackle the tasks before it would have those reservations dispelled by the quality of the consideration that has obviously been brought to bear on what up till now has been considered some almost insurmountably difficult challenges.

Can I begin with two personal declarations. One is on the party system, which has been referred to on a number of occasions as we have weighed the advantages of changes and of preservation of features of our system. Let it be remembered that the one occasion on which the Australian political system at large came close to wholesale corruption was in the parliaments of the colonial era, which lacked the discipline of the party system. When coalitions were cobbled together, not least in the Legislative Assembly of New South Wales by Henry Parkes in the 1870s and 1880s, in return for promises of personal financial favours and of `roads and bridges' politics through electorate after electorate, individual members of parliament, independents without a broader loyalty to a party, without ideological commitment, were prepared to throw their support behind short life coalitions.

It was the party system that arrived in the 1890s that removed that wholesale trading that put together coalitions that supported ministries. It was the party system that meant that individual interest groups were not able to buy slices of an Australian parliament, a colonial parliament, and get their way on the location of a railway line or anything else. Our system has enormous merits but a great deal of it is owing to the strength and the discipline of the party system. That explains a great deal about the effectiveness and the endurance of Australian democracy. That ought to be said.

The second statement of principle I make is this: there is a great virtue in prime ministerial government, in having an executive accountable to a parliament, in having an executive able to survive or fall dependent on what happens on the floor of a chamber like this. I believe in it. I think it serves this country well.

The flaw I highlight in our current system is the fact that our Constitution is laden with imperial references and invocations. It was a document written to flatter Queen Victoria and is quite out of place with the contemporary Australia we know and reflect. That is our starting point for this discussion, as far as I see it: what changes we need to make in the Constitution to have it mirror contemporary Australia without altering and without endangering the great strengths of prime ministerial government; the principle that an executive is in place while it commands support on the floor of a parliament.

That is why I treat with a great deal of caution any arguments in favour of an executive presidency. Forget comparisons with the United States. People who talk about enhanced powers for a head of state - I will come to the question of what we should name the head of state when I conclude - ought to reflect on the French system, which has a bicephalous executive.

If you are talking about strengthening the power of a head of state while retaining prime ministerial government, you are talking about dividing executive power between a head of state and a Prime Minister. The closest reflection we have of that is in the French system of government. When I look at the suggestions of the working group that contemplate strengthening the powers of a head of state, I see that they give him or her the power to negotiate treaties, for example. You would have a head of state elbowing aside a foreign minister, elbowing aside a Prime Minister, to enter the realm of making foreign policy for Australia.

Look at cohabitation in France. Look at the difficulty of reform in France. When I was in France last, people were talking with admiration about how Australia has achieved structural reform in economics and public administration, and the inability of putting reforms like that through in France because of a bicephalous, a two-headed, executive. So let us steer right away from that notion.

I personally am attracted to the recommendations of Working Group 7, which contemplates quite bold codification of the powers of a head of state. I do so because I am a child of 1975 and I have maintained the rage - Gough is not here to hear this; that's sad. I immediately acknowledge as a republican that we are under pressure during these two weeks to carry a whole load of conservative Australia with us. In other words, if we are going to move towards an Australian head of state, we must do so, to put it in political terms, by carrying with us the people who thought John Kerr acted appropriately and voted for the coalition in 1975.

Therefore, I am prepared to concede that, if we are going to achieve that degree of consensus, what is proposed by Working Group 7, while I agree with it, may be too bold. In other words, we have to look at a more modest codification so that people who are constitutional monarchists feel the model we reach at the end of this two-week exercise is one they can support. That is my position.

An interesting notion that has emerged from a number of the working groups is the question of a reference to the High Court. There was reference to the precedent for this in the Irish Constitution that I found very interesting. I think it might have been Professor Winterton's report which mentioned resolving a question like that confronting Governor Game in 1932 by referring it to the High Court for a determination. That strikes me as not a bad notion. As we move towards codification, but probably not the bold codification contemplated by Working Group 7, that is not a bad notion. It is new to the Australian Constitution but the idea of a reference from the head of state to the court for a quick determination may be something that, with advantage, can be introduced into the Australian Constitution.

A final point - entirely idiosyncratic - is the question of the name of a head of state. Consider the question I touched on a moment ago: the need for republicans in this process to carry with us those whose instincts are conservative and to reach a consensus by the end of these two weeks. It may be reassuring to a lot of Australians who are on the point of moving across on the question of an Australian head of state if we tackle the question of nomenclature. What does it matter if a head of state is referred to, not as president - with its connotations, some of them disturbing for conservative Australians - but as Governor-General? If we can say that we will retain the name Commonwealth of Australia instead of calling ourselves the Federal Republic of Australia, which I guess is more logical, and if we can embrace that concept, why can't we as republicans embrace the concept of referring to our head of state not as president but as Governor-General?

Councillor TULLY - Chairperson and delegates, without question the most defining event in Australia's constitutional history was the unceremonious, unfair and unjustified sacking of a democratically elected government by the Governor-General on 11 November 1975. That one divisive action by the Queen's appointed representative in Australia stirred the national spirit and, although many point to the outcome of the ensuing election as justification for Sir John Kerr's actions, there is no doubt that this Constitutional Convention's very existence had its genesis from that day on. Indeed, when I look around this chamber and count the numbers, I believe that when the final vote on a republic is taken on Friday week, to use the words of that great statesman Gough Whitlam, `nothing will save the Governor-General'.

Last year, many Australians were astonished by the ongoing claims and assertions of constitutional monarchists that there was no need to change the Australian Constitution because we already had our own Australian head of state. Someone less kind and perhaps less humble than I would describe the proponents of such a view as engaging in the greatest constitutional deception and hoodwinking of average Australian voters since the First Fleet arrived in 1788.

As the reality of our task becomes clearer over the next few days, and as we head towards the inevitable view that Australia must become a republic, the powers we vest in our new president become of the most paramount importance. I have heard much argument in recent months that we should not worry about our current constitutional arrangements because the Queen of England is not our head of state, rather she is really at the apex of our Constitution as the Queen of Australia. In my state, an act rushed through the Queensland parliament in 1977 also declared her to be the Queen of Queensland. The Queensland parliament went further by providing that such title could be removed only by a referendum of the Queensland people. This nation can never proudly walk on the world stage while we have the Queen of a foreign country as our own head of state.

Our Constitution is an act of the British parliament. The preamble to our Constitution states that it is:

. . . enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons . . .

What a load of monarchical claptrap. It further declares that the people of the Australian and British colonies had:

. . . agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland . . . 

Not the Crown of Australia, not the Queen of Australia, but the Crown of the United Kingdom of Great Britain and Ireland. Is this what we really want to preserve and perpetuate in Australia? I ask one question of the people who want to cling to the past: are you fair dinkum Aussies or apologists for a foreign regime whose actions in dumping us in World War II were proof of its indifference to our nation?

Under our present Constitution, the existing powers of the Governor-General are awesome. Taken literally, he or she is not only the Commander-in-Chief of the Defence Force of Australia but also has the power to appoint and dismiss ministers at will, to appoint justices of the High Court and to withhold assent to any bill lawfully and democratically passed by the Senate and the House of Representatives. This latter power, when read with section 59 of the Constitution, which allows the Queen to disallow any act of the Australian parliament within one year of its enactment, even after it has become law, is the very antithesis of democratic and representative government.

It is totally unacceptable that the head of state of a foreign country has the power to annul our laws. Just imagine telling the people of Ireland, for example, that their laws could be disallowed by the head of state of Bolivia or Venezuela! This is absurd, anachronistic and no longer tolerable to the people of Australia.

If we are to become a republic, our Constitution must reflect an appropriate balance of powers to be vested in an Australian president. It has been said that, unless we move completely to the United States model, a directly elected Australian president must have not only codified powers but also reduced powers. I totally endorse that proposition, but that is only one aspect of this vexed question. If the sovereign power of the people of Australia is to be recognised, the powers of any Australian president, whether or not he or she is elected, selected, appointed or anointed, must be codified and particularised and reduced - reduced so that the president's position is strictly ceremonial and constitutional and never political.

The so-called reserve powers of the Governor-General cannot be translated across to the position of president. Leading constitutional experts disagree over exactly what those reserve powers are. Some people will argue that this is a good situation so that the Governor-General or the president has the flexibility to exercise undefined reserve powers for changing and unanticipated circumstances. The conventions which have surrounded the exercise of the Governor-General's powers will not automatically apply to a new president. Indeed, it will become a totally new ball game.

Can any delegate here truthfully say that an elected or appointed president of Australia would continue to act in exactly the same fashion as and recognise the same conventions as former governors-general? I am sure that if Bruce Ruxton were our first Australian president he might be tempted to see how far his powers really went. Of course, Phil Cleary, who would make an interesting if not excellent president, might like to show that he and not the Prime Minister was the more legitimate office holder. Indeed, just thinking of some of these possibilities should make all of the delegates realise that the president's powers must be codified. They must be clearly enunciated and appropriately reduced so that the power of the people is vested in the hands of the people.

There is a need for the president to be required to act upon the lawful and constitutional advice of a democratically elected government. Equally, there needs to be a speedy power of dismissal for a president who abuses his or her power. The last vestiges of dictatorial powers must be removed from the Constitution.

In conclusion, I have said earlier that the events of 1975 have inevitably catapulted the people of our nation towards a republic. But there is one person whose belief and passion on this issue and whose enduring enthusiasm for the cause should be recognised as having been prepared to put this issue on the national agenda despite its obvious political ramifications. That person is Paul Keating, who as Prime Minister was prepared to risk the wrath and potential alienation of many voters on both sides of the political fence for elevating this debate to where it is today.

As we move towards the next millennium on the road to a republic, this Convention is duty bound to recommend a proposal for a referendum of the people of Australia which represents the hopes and aspirations of us all. Whatever the model, there can be no deviation from the essential ingredient of a democratic constitution that the ultimate power of the people must reside in the people and not with some unelected, unrepresentative titular head who possesses excessive powers and who might be tempted to exercise such powers contrary to the will of the people. Let us all move forward towards the republic of Australia where our democratic ideals and freedoms are enshrined in our Constitution forever and where the will of the people reigns supreme.

DEPUTY CHAIRMAN - I table a proxy from Jim Bacon MHA, the Leader of the Opposition in Tasmania, appointing Judith Jackson MHA for Wednesday, Thursday and Friday of this week.

Mr CLEARY - It is great to be here. One hundred years ago the founding fathers produced a constitution which was essentially a trade and administrative document. To thwart the will of the people expressed in the people's chamber, the conservatives fashioned a Senate capable of vetoing the House of Representatives. When it was all over, the righteous breathed a sigh of relief, for this was a document that said nothing about who we were or what we aspired to become as Australians. It expressly protected property - not the property of blacks; it protected the property of whites. It did not protect free speech. It alluded to the rights of Christians to worship in their temple or the temple of their choice, but it never suggested that the workers who wanted to gather at Webb dock should be protected. It paid no homage to the history of the continent before invasion. In essence, it was a timid trade document. How ironic that today the forces of conservatism, as represented at this Convention by the Prime Minister, should be entering into a pact, an unholy alliance, with the leadership of the so-called forces of modernity, the leadership of the ARM, to again thwart the will of the people.

The people want an elected president. They have told us that. They want a president who will act as a moral and cultural arbiter. This alliance wants a puppet; a puppet prised out of the party bureaucrats. The conservatives seek inspiration from the likes of Edmund Burke and a host of 18th century ascendancy thinkers to defend their cause. Theirs is a mean-spirited Hobbsian view of the world that would suppress the enthusiasm of Australians for renovating the political landscape and imbuing it with alternative notions of participation.

Mr Turnbull interjecting -

Mr CLEARY - Maybe you are one of them, Mr Turnbull. The Hobbsian world evoked by the conservatives in this chamber is at odds with the much vaunted Australian notions of egalitarianism and a fair go.

Mr Ruxton interjecting -

Mr CLEARY - It is even at odds with the brash larrikinism of some of the constitutional monarchists who sit on the left of the chamber. Maybe you can call yourself a brash larrikin, if you like. About the time of the last convention one of our greatest poets, Henry Lawson, claimed that Australians would doff their hat to no man and call no biped master. Now the best the conservative wing of the republican leadership can offer the people is an appointed president - a president palatable to the major parties. Their justification is pure scaremongering. It would not stand up in a court of law if Mr Turnbull was defending you - forget yourself. What are they frightened of? Do they fear a creative tension in the political system, or is it more that they fear giving up their power or their loss of influence?

Surely in a robust democracy we should welcome a president prepared to canvass shades of opinion distinguishable from those of the parliament. Democracy depends on a diversity of opinion freely expressed. Now more than ever the people are alienated from the parliamentary process, seeing it for what it is - a rubber stamp for executive decision. I saw it for four years in the House of Representatives - good people forced to vote against their principles. Sure there will be an Australian head of state disconnected from the Crown all right, but he or she will be selected by the major parties, and that is not good enough, with all respect to Governor-General William Deane, who has had a profound effect on the minds of Australian people.

But if we put this other character in, which may be what the monarchists want to do, that will suppress all the energy that exists out there in the community - the energy that Clem Jones, at 80 years of age, talks about. He puts some of you old-timers to shame.

Mr RUXTON - Oh, calm down!

Mr CLEARY - He has young ideas; yours are antiquated, my friends. It is simple really to codify the powers of the head of state. We have heard the same yarn from Mr Craven when he was up here today. We have heard that for years - him writing in his favourite rags, trumped up by Murdoch, to run the deal against democracy. We heard it again today - `No effect whatsoever, Your Honour.'

Who among us would argue that the election of Mary Robinson as President of the Republic of Ireland was a retrograde step, or that it has in any way diminished the workings of that democracy? As we discussed yesterday with the eminent Gareth Evans, it is possible in Ireland for bills to be referred to the High Court. Why should we be unhappy about that?

Mr RUXTON - He's a Melbourne High School boy - give him a go.

Mr CLEARY - Conservatives are trying to tell us that the people cannot be trusted to elect a president - this despite the fact that the major proponents of this argument are here by virtue of a vote of the people and not by appointment; this by virtue of the fact that the people have had their say. Even Bruce Ruxton got here on the people's vote; hard to believe, but it happened.

The conservatives are trying to frighten this Convention into adopting a non-elected head of state by claiming there will be tension between the elected president and the parliament. Surely in a robust democracy we should welcome that creative tension. In a sense we have got it today with Governor-General William Deane. There is a tension there, but it has been good for us because William Deane has actually raised questions that some of the timid were not prepared to raise. He also defended me in the High Court when I was sacked. In fact he said that I should not have been ruled ineligible. I consider him a great man and a wise man.

An independent head of state would truly invigorate the political process, and it is clear the people have already said this again and again and again. But, when the people speak, the conservatives drag out the 18th century philosophies and claim something about the tyranny of the masses; but they will not quite put it in print. What they are really trying to say is that it is a tyranny of the masses. Get specific with us about why you are scared of the people. The conservatives are also trying to frighten this Convention by inventing a raft of complexities which the eminent Gareth Evans tells us just is not true. As we have seen in 1975, the existing Constitution is unclear about the exact powers of the Queen's representative. Why haven't you been complaining for the last 12 years about the powers of the Governor-General? Why haven't we had complaints about that? No reason.

Mr TURNBULL - Come on, what's the answer.

Mr CLEARY - Because you actually like the tension, but we will go a step further by electing a person with a broader mandate. What we need is a clear, simple set of codified powers. We can do that. We would regard ourselves as experienced, some would regard themselves as wise, and many would say that they are up to doing this particular task. I think they are.

Enough of the hand wringing. Whatever my opinions have been of the people here, I never took the people here for hand wringers. I do not take you as a hand wringer, Bruce Ruxton. Leave the hand wringing to - I was going to say merchant bankers; that is a bit unfair. This is our one opportunity for a thorough, meaningful, inclusive renovation of a tired political system. A prerequisite has to be an elected head of state protected and enhanced by a clear, direct and simple set of codified powers. That is what we have to do.

I have been at a couple of meetings with Clem Jones. Clem is 80 years of age, full of vibrant ideas, and what does Clem Jones want to do? He actually wants to enhance the powers of the president. In the meeting last night he suggested that the president ought to have the power to refer legislation back to the parliament. Good. What a novel idea, Clem. Oh yes, don't talk about that, though, Clem, because the constitutional lawyers say it is too difficult. But you can find a way. There are plenty of times when the people would love to see some legislation rethought and there are plenty of times when legislation ends up being rethought because of the will of the people. Legislation has been accepted when party members - and I know that some of them here know this is a fact - stick their hands in the air when they think they shouldn't. The irony or the paradox is that the legislation ends up going back and they say, `I didn't really support it anyway.'

So, Clem, you have been one of my inspirations at this Convention. I have never met you before, but to find someone with young and vibrant ideas shows that you don't have to be 25 to have vibrant ideas. There is an old Mao Zedong line about saying articulately to the people what they are saying to you confusedly. Clem Jones is saying in a careful and articulate way what the people are saying confusedly. But in amongst the confused message is the notion that the people want to recognise our black history. I want to recognise it in a preamble. I want us in that preamble to say things about who we are and then put a president in, Clem, who will protect that Constitution for us and not a puppet prised out of the party bureaucrats.

DEPUTY CHAIRMAN - I call the eminent Gareth Evans.

Mr GARETH EVANS - As they say in show business, never follow children, animal acts or Phil Cleary; and certainly never, ever get an endorsement from him. My view of the role of the head of state is and has been so long as I can remember that it should be essentially ceremonial and symbolic: representing the nation at home and abroad, embodying the spirit of the nation about which Janet Holmes a Court spoke so eloquently yesterday, and being available as a source of consultation, advice and warning to the government of the day by all means but having no capacity to do any damage to any properly democratically elected government.

For so long as I have been coming to official constitutional conventions - and, having a masochistic streak, I have been in one capacity or another to every one of these things since 1973 - I have supported efforts to codify and limit so far as possible the powers of the head of state, and I do so again today. Those efforts have been spectacularly unsuccessful in the past and may well be so again today. If someone like Ron Boswell has not already quoted me from the early 1980s I am sure they will, so I will get in first. I have said in the past, yes, that trying to come up with a codification and power limitation model that attracts across-the-board support is a labour of Hercules. Yes, I have said in the past that achieving complete consensus on this is a task likely to elude us even if we worked at it for 30 years or more. Nonetheless, despite that obvious feasibility problem, I do believe the effort is worth making again and that the issue should at least be seriously explored by this Convention.

With this in mind and to test the issue, I will be moving later in the day that which Bob Carr called the very bold resolution emerging from Working Group 7 that argues, as Mary Kelly laid it out earlier this morning, for three things: first, full codification of the powers of the head of state in order to eliminate to the maximum practicable extent uncertainty and ambiguity about their meaning; second, the limitation in that context of the powers of the head of state in order to eliminate, again to the maximum practicable extent, the possibility of any conflict with the principles of responsible parliamentary government; and, third, limitation of the powers of the Senate to the extent necessary to eliminate the possibility arising of the head of state exercising discretionary power to resolve a conflict between the two houses.

The resolution itself does not try to set out the actual text of the constitutional changes necessary to achieve this, rather it points the way to how that text might be constructed. So we say, going through each category of powers, that, for example, in the case of the powers expressly already given to the Governor-General and made subject to the advice of the Federal Executive Council, that those powers should be retained as they are, obviously, but with some clarification about the position of the Federal Executive Council, making it clear that that is actually the government of the day. In the case of those powers expressly given to the Governor-General at the moment but about which no guidance at all is given us to their exercise and where conventions simply prevail, we say, `Yes, the rules governing exercise of those powers should be spelt out in detail.' We do have a model for that in earlier resolutions of previous constitutional conventions and more particularly in the report of the Republic Advisory Committee in 1993.

In the case of the reserve powers, unspecified and certainly undefined in the Constitution in relation to appointment and dismissal of Prime Ministers and dissolution of parliament, we say in this resolution that detailed rules should be spelt out to cover in an appropriate way each situation in such a way as to make it clear that the head of state retains no independent personal discretion in dealing with these matters. Here again one would take into account the report of the 1993 Republic Advisory Committee in that respect.

Fourthly, in the case of the Senate's power to block supply, which is not expressly limited by the present Constitution, we argue that the Constitution should be amended by a provision removing the Senate's right to reject or to significantly delay bills which appropriate moneys for the ordinary annual services of the government.

Attached to the resolution as circulated is the relevant draft from the Republic Advisory Committee in 1993, which does as well as any other draft I have seen to date the basic job of codifying and limiting the head of state's powers. To round off the whole story, that would need to be supplemented by a further provision directly addressing the Senate power question.

What I suggest is that, if there is sufficient support today which emerges from this model, it would certainly be possible for that working group to reconvene and bring back to the Convention next week a fully developed draft constitutional text.

The question of the Senate's powers is, of course, a particularly sensitive and delicate one and it is likely, I acknowledge, to be the subject of some disagreement; although hopefully not as much as in earlier years when tempers were still very hot and nerves were still very frayed by the events of 1975. But you simply cannot take a position on the head of state's powers without also taking a position on the Senate's power. The two issues, as the Prime Minister said yesterday, are inextricably connected. Given what the Prime Minister described yesterday as the almost unique power enjoyed by the Australian Senate to block supply and the problems that arise if there is a protracted deadlock between the two houses, you can deal with a situation in either of two ways.

You can address the problem in the first place after the event, by giving the head of state the power to dissolve the parliament against the will of the government of the day, albeit perhaps with a few more hurdles to jump over along the way, for example having to wait for an actual illegal payment to occur - something which did not trouble Sir John Kerr in 1975. So you could do it that way: actually give the power in a tightly defined way to the head of state. Or you could avoid the problem arising in the first place by removing the Senate's power to block supply - a power which is effectively unique to the Australian upper house, one that does cut across the whole concept of Westminster style parliamentary government and certainly is not available in Westminster itself, and which is also a power which before 1975 no-one ever would have thought would actually be exercised. It will come as no surprise to delegates that, faced with this kind of choice, I, like Bob Carr, opt for choking off the problem at source by denying rather than confirming the Senate's power, and that is the proposition which is tested in Working Group 7's resolution before you.

The whole question of codification and limitation of the head of state's powers is logically separate and distinct from the issue of how the head of state should be elected or appointed. Whether you opt for direct popular election or parliamentary election or prime ministerial appointment or some combination of these, you can have accompanying that model any model you like on the codification of powers question. That has become clear from the contributions made by the working group convenors this morning.

That said, there is a very important practical and political connection between the two topics. If you go down the path of direct popular election, with all the risk of creating a rival democratic power centre that that implies, then, if you do not want to turn our existing parliamentary system upside down, you simply have to limit or eliminate from the system all those powers which are capable of misuse in the sense of coming into conflict with the principles of responsible government. If, on the other hand, you opt for parliamentary election or prime ministerial appointment as at present, you do not have to anything like to the same extent the problem of rival democratic legitimacy, and to that extent it is less necessary - although in my judgment it is still highly desirable - to go down the path of codification and elimination that is mapped in Working Group 7's resolution.

My own position on all of this is that if we can agree on the elimination of all powers of both the head of state and the Senate which are incompatible with the properly functioning system of responsible parliamentary government, then there is absolutely no reason why we should not opt for direct popular election. If we could have a constitutional system like Ireland's, capable, as Phil Cleary said, of producing a President like Mary Robinson we would be very well served in this country. It would be workable in both law and in practice and it would be a model which would be responsive to that public enthusiasm, which undoubtedly presently exists, for a direct popular vote.

But let us remember that two essential characteristics, which must never be forgotten, make the Irish system workable and effective. First, the Irish President has effectively no independent discretionary power whatever when it comes to the appointment and dismissal of prime ministers and governments and the dissolution of parliament. Secondly, there is effectively no capacity whatever in the Irish upper house to block supply in a way that could create deadlocks that ultimately force the President to play an umpire role.

My very short concluding point is this: the full codification and limitation of powers model in the Working Group 7 resolution is worth pursuing for its own sake. But the issue has this further consequence: if we can agree on a full-scale codification or elimination of all relevant powers that are capable of misuse, then we do keep alive the option of direct election of the head of state. If we cannot agree, if there is no substantial majority for that position on the elimination of powers along the lines proposed in the Working Group 7 resolution or something like it, then the only viable election or appointment model is a less ambitious one - either prime ministerial appointment as at present or, as I would prefer in that situation, parliamentary election.

Professor PATRICK O'BRIEN - We have just heard Gareth Evans recommending the elimination of all checks and balances on the political executive in parliament. What he has advocated is the abolition of what checks we do have in our existing Constitution on the absolute powers in between elections of our Prime Minister. Our Prime Minister has the absolute power to declare war, to make all treaties and to appoint all ambassadors and all judges in the federal jurisdiction. He has enormous powers of patronage - who gets arts grants, who gets the slices and shares of AUSSAT, et cetera. So he may as well not only abolish the office of head of state but also, in the words of Bertolt Brecht, `abolish the people'. Because that is what he is advocating. He is advocating what many English constitutional commentators of both conservative and radical persuasions have called `the full blast of the elected dictatorship of the Prime Minister'. The model he is advocating works in Singapore. Singapore is minimalism in action. I notice that my Premier of Western Australia loves Singapore - law and order, no graffiti, no chewing gum.

Mr RUXTON - No long hair!

Professor PATRICK O'BRIEN - I wish to congratulate those Labor Party state leaders such as Dr Geoff Gallop, Mr Mike Wran, Mr Peter Beattie - and there may be others - for being courageously consistent. They have legitimate ambitions to become heads of government. Gareth Evans is busting to be Prime Minister. He would knock off Kim Beazley tomorrow if he could. But the consistency of the gentlemen I have named is that they seek the direct election of the people to satisfy their ambitions to become heads of government. Yet here we have our own Prime Minister and people sitting here - Mr Court, Mr Olsen, Mr Carr and others - being totally, absolutely fraudulently hypocritical. They want our vote to satisfy their ambitions to be parliamentarians, to be ministers of the Crown and to be premiers and prime ministers, yet they tell us that we, the Australian people, are not morally good enough to elect directly our head of state. They say, `We want to do that too.' In my view they have exposed themselves before the Australian people in the manner I described.

It is irresponsible and politically dangerous to assume, as have ARM enthusiasts, that there is some sort of magical constitutional quick fix for Australia to become a true republic - the Flick solution. Remember the old ad: `One flick and they're gone.' The change that we are discussing and addressing at this Convention is a huge task. As with the American colonies of Britain in 1776 and as pointed out at the time by John Adams, the transition from a constitutional monarchy to a republic involves nothing less than the extinguishment of all authority under the Crown as the foundation of government and the reconstitution of all legislative, executive, judicial and bureaucratic institutions under a new authority. The question then becomes the vital one: who or what will constitute that new authority on which government is to be founded?

The ARM and their supporters, the wielders of the system, want themselves to be the new authority. When you ask, `Who are the 80 per cent who say that we have a directly elected president as our head of state and who are the 13 to 15 per cent who oppose it,' the answer is simple. The 13 per cent are the politicians - or many of them - who operate and benefit from the system, those former justices of our courts and, in some instances, governors-general who got where they got through the preferment of the present system of patronage. Then there are the moguls and their paparazzi and their glitterati. They are the 13 per cent. The rest are the majority of the Australian people.

Mr GARETH EVANS - What about the powers issue? What about coming back to what you are supposed to be talking about - the powers?

Professor PATRICK O'BRIEN - I did not interrupt you.

Mr GARETH EVANS - I was trying to help you.

Professor PATRICK O'BRIEN - So it is a case of the hierarchical elites wanting the power to elect their head of state. That power must reside in the people of Australia. The Australian people must constitute the new source of authority. We must say that all legislative and executive power resides in the people and that, by the constitutional grant of the people, those powers shall be exercised through particular institutions such as the head of state, the Prime Minister and the parliament. It is ridiculous to talk about rewriting the Australian Constitution and still define the Governor-General or head of state as the source of executive authority. You will not get a republic unless the power of sovereignty is clearly defined in the Constitution - not just in a preamble but in the body of the Constitution - as the sovereign source of all power.

I have taught the Constitution to primary and secondary school students - right the way through. The invariable reply as to why the Australian people will not take an interest in the Constitution is, `It has nothing in it for us. It is a document that grants power to government over us.' I would bet anyone here that if a referendum was put tomorrow: `Will Australia become a republic with the Australian people as the sovereign source of all political authority and with the right to elect their head of state?' then it would pass by a vote of something like 75 per cent. We cannot become a republic on the basis of 51 per cent; we need a much bigger majority. I am not saying this for trickery. The ARM people know this. Why do they cling to this hierarchical elitist system which would be far worse than the ACM? Because they are elitist and hierarchist. They are not democrats. That is the simple answer.

Now, I come to the outcomes once the people grant through the Constitution executive authority to a new head of state whom we are happy to call the Governor-General because `president' tends to be associated with full executive systems such as America's, where the head of state is also the head of government, or more modified versions such as in France. It also maintains continuity.

The proposals that we are putting forward - that is, the group to which I belong in Perth and the group that I have associated myself with here - indicate and demonstrate that the desire of the overwhelming majority of the Australian people to directly elect our head of state is not a radical measure to be feared but a welcome, natural and evolutionary step that can be introduced through simple amendments to our Constitution. If that is done - as Gareth Evans pointed out - by changing the system to a republic you do upset the balance of relationships between the existing offices, but the third rail that all the hierarchical elitists do not want us to touch - `Touch it and you're dead,' they say - is prime ministerial power, the absolute powers of the Prime Minister. They are far more potent than the power of the Senate.

The office of Prime Minister must be made a constitutional office. How can that be done? Very simply. If we are going to codify in order to restrict some of the so-called reserve powers of the Governor-General, such as the sacking of government, et cetera, we should codify some of the conventions relating to the office of Prime Minister. Let us codify formally the convention that the leader of the majority party in the parliament, the House of Representatives, becomes Prime Minister but let us say in the Constitution that the parliament shall elect the Prime Minister. That strengthens the power of the parliament.

Now, of course, normally it will go to the person who is the leader of the majority party but, as we know, the institutional person who has the power to hire and fire has the real power. So if you give the power of the hiring and firing of the head of state, which is a sovereign power, to the Prime Minister and parliament, you are making them the sovereign authority. To conclude, the first clause in our Constitution must say words to the effect - and I have written it down in proposed amendments here - that all legislative and executive power resides in the people. (Extension of time granted)

Mr GARETH EVANS - And you can address the topic for the first time.

Professor PATRICK O'BRIEN - You see, that is the problem.

DEPUTY CHAIRMAN - Will you get on with it.

Professor PATRICK O'BRIEN - Yes, but would you ask this person not to interrupt. The clause that I would recommend goes something like this: the executive power of the Commonwealth of Australia is vested in the Australian people and, by their grant or leave as codified in this Constitution, is exercisable by the Governor-General as their directly elected representative and extends to the execution and maintenance of this Constitution and all laws of the Commonwealth.

As to the duty of the head of state or Governor-General, this is what I would propose: as the delegated and directly elected representative of the Australian people and subject to this Constitution, the Governor-General's sworn duty shall be to honour and defend the integrity of this Constitution and to ensure that its terms and provisions are adhered to by all members and branches of government.

This means that there must be some discretionary power because if advice of the Federal Executive Council means that the Governor-General or head of state must do what he or she is told you are reducing the office to a kennel. You have a lap-dog. Why have it at all? So he must have some discretion to act independently of the advice given to him because there might be things that he knows that the Prime Minister and the parliament have not known, or in the event where you get one party totally dominating both houses of parliament.

In conclusion, I believe the proposals that we are putting forward will have three outcomes: they will lead to increasing the ability of all Australians to have a greater say in the political and governmental processes of our country and who alone will possess the legislative and executive powers of government to be exercised on their behalf by the parliament and the Governor-General as their representatives and not masters; they will have the effect of establishing and strengthening the role of parliament as a true legislator - and we all know it is not a true legislator: it is principally a rubber stamp for the political executive; and they will have the effect of subjecting the political executive, the Prime Minister and cabinet, to greater checks and balances by making it more accountable to the Australian people, the parliament and the rule of fundamental law through its necessary and long overdue incorporation into the Constitution. Thank you, ladies and gentlemen.

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