DEPUTY CHAIRMAN - I should say that the initial debate that we began yesterday was intended to be - and is continuing as - a broader debate. That is why speakers had 15 minutes and why people really had a pretty broad remit. The chair and I took the strong view - and perhaps I should have acted earlier on this - that, on the specific issues coming up, people are really invited to address the precise subject matter. It is not a broad debate; it is a very narrow, sharply focused debate. I hope other speakers will take that into account.

Dr GALLOP - I cannot resist the opportunity to commence my small speech today by referring to an incident that occurred in 1982 when the rage was still being maintained in respect of the 1975 crisis. It leads me to conclude that, when we discuss the powers of the Governor-General, the powers of a head of state, it is really all a matter of perception.

In 1982 the rage was being maintained in the University of WA. The speakers were myself, then a lecturer at Murdoch university, John Dawkins, then a member of the federal parliament, and Professor Peter Boyce, who has just recently retired and, I believe, has stood on the ARM ticket in Tasmania.

Unfortunately, the rage had diminished somewhat by 1982 and there were not a lot of people at the meeting but there were three elderly gentlemen at the back of the hall with very distinguishable short back and sides haircuts and very dark, baggy suits. We could not quite work out where they were coming from. We all finished our speeches and one of them finally asked, `It is all very well to be talking about the powers of the Governor-General but I would like to know when the speakers are going to take up the armed struggle against the British empire,' at which point one of the speakers had a call of nature, another hid under the table and I was left facing 150 years of rabid Irish republicanism.

Can I say that 15 years later I believe that the Irish republican model is a very good model and provides a very good basis upon which we can discuss this topic of the powers of the head of state, the powers of the Governor-General. Let me refer quickly to the opposition arguments about codification, which has been the recommendation of the working group that I was on, reported by Mary Kelly earlier this morning.

Opposition to codification seems to be based upon three propositions: firstly, that the conventions are too complex for ordinary mortals to comprehend; secondly, that the conventions are too controversial for there to be agreement; and, thirdly, that history is constantly marching on and creating new and unforeseen consequences. I could address each of those in turn but I would rather like to look at the hard version of that group of objections. I think the hard version of that group of objections really takes shape as an ideology which sees political life, in essence, as a mystery, the guidance and occasional intervention into which of non-elected heads of state is necessary if it is to work.

The only restraint that will act upon those heads of state will be tradition and convention. The hard version of that particular view which was put forward earlier today by one of the working groups I believe creates problems for a genuine Constitution. What constitutionalists try to do is anticipate the future, plan for the future and create a framework of certainty for those that participate in the political process.

As we have seen in Australia, occasionally things go wrong. An example is 1975. It exposed a serious flaw in our system where great uncertainty and, indeed, great disagreement resulted about the reserve powers. Of course, the hard version of that ideology I referred to earlier was used to justify the precipitous use of those reserve powers rather than the resolution of a political crisis through the political process and parliamentary negotiation. That, of course, is called responsible and parliamentary government, which ought to be the basis upon which we build our Constitution.

Our present Constitution, as Professor George Winterton has written so often, simply vests the power to appoint and dismiss a Prime Minister and to refuse to dissolve parliament with the Governor-General in extremely generalist terms. It then relies on these conventions to regulate their exercise. There is only an apparent consensus about the use of those powers. As Professor Winterton himself has said in his many written works on this subject, the boundaries are often indistinct.

If we are to accept the existence of such reserve powers, their replication in any case is always going to be subject to question. We need as a people and deserve as a people more certainty about how our political system operates. Different methods have been proposed to handle such situations - most notably, partial codification on areas of general consensus. The distinction between partial and full codification, I believe, is not as great as it would appear. But, certainly, I think we should seek as full a codification as is practically possibly.

There has also been a suggestion that we create an advisory body to help the Governor-General or the head of state in the use of their powers, or the so-called `bee sting model', which would have it that the head of state would automatically lose office in the event that they use their reserve powers.

Let me give three arguments in favour of full codification for the consideration of this Convention. Firstly, to those who believe we need the basis of experience before we take up any constitutional proposition, I think we can safely say that the experience of other jurisdictions, be they monarchies, such as Japan and Sweden, or republics, such as Ireland and Germany, has shown that it can be done, that we can have responsible parliamentary government and non-executive presidencies or monarchs without political interference. We are not talking here of an untried, untested leap of faith but of a constitutional practice that is proven.

Secondly, to appeal to the republicans in the Convention, codification is part and parcel of the antimonarchical ideal of a republic. There are many parts to a republican ideology. But, as Philip Pettit has written, with respect to the antimonarchical, antihereditary elements of a republican ideal:

This idea is perhaps nothing more than an expression of the deeper idea that republics are meant to be governed by laws, as it used to be put, and not by individuals: that they require the rule of law, in which there is no room for the caprice of the autocrat.

In other words, under a system in which there is reserve power, the potentiality always exists for the application of those powers in ways that reflect the prejudices of those individuals rather than the laws and conventions of the society. I believe that we ought now to move towards a system that goes away from that essentially pre-modern, essentially monarchical view of the world.

Thirdly - and not as important as the first two arguments, but, nevertheless, I believe it is an important argument - codification of the powers of the head of state may very well pave the way for a much more serious discussion in this Convention, and here I am addressing, in particular, delegates from the republican movement, of the direct election of the head of state in a future republic. This is an aspiration that is deeply held by the people of Australia, an aspiration that we should take seriously, an aspiration which should lead us to provide a workable and practical model for its realisation. We do have a responsibility as delegates to this Convention to heed the voice of the people.

A non-executive presidency with codification of the powers and the limitation of those powers paves the way for a very serious consideration of that direct election. I believe that we have an obligation to place that on the agenda of this Convention and to give it serious consideration.

So, Mr Chairman, I believe the arguments against codification ultimately fall down. They are based on a view of the world which I think might apply to life, in general, that there is mystery for which we need some flexibility and some guidance. Certainly, for life in general we need guidance from our most reverend friends here. But we are talking about politics. We are talking about a human creation for which there should be rules. Those rules should be understood by the people that participate in that political process.

So I believe that the anticodification point of view is simply based upon a view of the world which is now antiquated and out of place. Finally, as I said, if it paves the way for a serious discussion of direct election, I believe it will have played a very useful purpose.

DEPUTY CHAIRMAN - Before I call Peter Beattie, I should advise that names for tomorrow's working groups should be handed into the secretariat by 2 p.m.

Mr BEATTIE - Since 1996, the Union Jack has flown over the Queensland state parliament. We are the only state parliament in Australia which has the Union Jack flying over our deliberations. Our Coat of Arms was changed in the 1970s to include a rampant English red deer. All that is missing in the eyes of some is a furled umbrella. I mention this so that all republicans appreciate the determination of those opposed to an Australian republic and the difficulty of the task facing us.

I say to my fellow republicans: remember that any constitutional change has to be approved by a majority of people in a majority of states. There will be a campaign run by the monarchists in states such as Queensland, Western Australia and South Australia to defeat the move to a republic by defeating any proposition in those states, thus preventing there being a majority of states - in other words, the referendum will fail.

We cannot win the republican argument by winning just in Sydney and Melbourne. I stress: we must win a majority of people in a majority of states. We must, therefore, produce recommendations that result in a convincing referendum question, and that must, in my view, include the popular election of a president. Those who attack that on the grounds that it is populist attack the Australian people.

There are two issues before us. The first is the powers of the new head of state and the second is how those powers are defined. As a strong supporter of the direct election of the president, I support the codification of the president's powers to the maximum practical extent to eliminate any uncertainty -

SENATOR BOSWELL - Gareth says you can't do it.

Mr BEATTIE - I will come to the Senate in a minute - to eliminate any uncertainty or ambiguity about their meaning. As well, I support certain limitations on the powers of the president in order to eliminate any conflict with the principles of responsible government.

We need to be very clear that whatever goes to the Australian people in the form of a referendum question is clear and unambiguous. If it is otherwise then those opposed to a republic will seek to use it as an opportunity to attack the proposition across Australia, particularly in the outlying states. Therefore, codification is a clear way - I will come back to whether it is partial or full in a moment - to give certainty.

I disagree with some of the submissions that have been made this morning that are opposed to codification. Codification provides certainty. It provides certainty in terms of the argument, it provides certainty for the Australian people, it provides certainty for the head of state and it provides certainty for the government. Codification is a key part of this referendum being successful, and that is the bottom line. Those who have argued against codification have used arguments like: existing conventions are unreviewable. Says who? What an arrogant position to take. The Constitution and the system of government we have are there to serve the Australian people - not some archaic view. Therefore, they are up for consideration.

The Constitution is not a dead document, it is alive. It will change from time to time, and it must change. But the final arbiter is always the Australian people, in the form of a referendum. They have demonstrated, on many occasions, that they are unwilling to change without very good cause, and that is the final arbiter - the final break. I see nothing wrong with putting the reserve powers in the Constitution. I have heard no argument here to suggest a contrary view.

SENATOR BOSWELL - Gareth says you can't do it.

Mr BEATTIE - What happened in 1975, in my view, confirms the need to achieve that. I believe we are capable of codifying and of drafting the appropriate codification clause. I refuse to accept the argument, which I regard as pathetic, that we are not capable of codification. That is an admission of defeat before we even start - a pathetic argument to say the very least. I believe we are capable of drafting the appropriate codification requirement.

I know that one of the most contentious issues here relates to the area of codification in terms of limiting the powers of the Senate by amending the Constitution to remove the Senate's right to reject or significantly delay bills appropriating money for the ordinary annual services of the government. I know that will be the issue in debate. It is an issue we need to handle very carefully. Let us get a few facts on the table in terms of this debate. Let us not forget that, in 1911, the House of Lords lost the power to block money bills. It happened in Britain. For those of you who run around arguing the monarchists' cause, look at what happened in Britain in 1911.

Let us talk about the Senate for a moment. The Senate has become a party political house. It is not the states house, which is where it started. The system of party endorsement has left the Senate as the domain of political parties, and to argue otherwise is a nonsense. Too often, some have argued that the Senate has been a dumping ground for party hacks on both sides of the house. The point is that what happens in terms of the Senate - Senator Boswell may be a bit more reluctant to interject on me now - is that senators are elected by the people of the state and they are accountable to no-one. That is exactly what happens.

That is why, in terms of this argument, I am prepared to go back to 1975 and say that I believe that what happened then has, in my view, led to the conclusion that the reserve powers should be in the Constitution. I have no hesitation in taking that view, and I come from the state where the late Senator Bertie Milliner, you may recall, passed away and the state parliament then refused to appoint a senator from the same political party. They sent Albert Patrick Field down here, who found his way into a footnote of history by that short endeavour on his part.

Let me be very clear: I am totally supportive of an elected president to reflect the will of the Australian people. But the way to give certainty is to codify the powers and out of that we will avoid, as much as is humanly possible, a hysterical campaign by some in the referendum who will wish to defeat the move towards an Australian republic.

Therefore, I am generally supportive of the proposition advanced by Gareth Evans in terms of committee recommendation 7. I was a member of that committee. The other issue there that I find attractive relates to enabling the head of state to refer any bill to the High Court for a decision as to its constitutionality. I think that is an appropriate role for the president to have. If you like, the role of the president would be as the defender and protector of the Constitution and, at the end of the day, the matter would be determined by the High Court. This is based on the Irish model. This is what the Irish President has the power to do and I think it is an appropriate power for the president to have. When Mary Robinson visited this country and there was a great deal of warmth I, like many people in here, thought she played a constructive and positive role on behalf of her country. I believe our elected president could do exactly the same thing.

I conclude my remarks by saying this: I fear that what will come out of the debate resulting from this referendum question will be a campaign by some to attack the issue of the Australian republic by attacking the question that goes to the Australian people. That is why it needs to be clear, it needs to be unambiguous and it needs to be certain. Codification is a key part of that. To some extent, the argument about partial and full codification is a matter of semantics. What I think is required in that debate, and the responsibility that rests on us, is to come up with what codification is necessary to give certainty. That, I believe, is the bottom line. I believe the Australian people watching this Convention want to see not only a positive and constructive outcome from all of us that can be put to them in the form of a referendum, but also the direct election of a president.

Dr DAVID MITCHELL - Mr Deputy Chairman, I was privileged to speak yesterday and to set a pattern for the position which I present to this Convention and to the people of Australia. I was elected on a policy of supporting the present Constitution and of supporting the sovereignty of the law as expressed in our Constitution under the Queen and the Governor-General. You will recall, as will the people who were listening on the radio - but maybe some of those present here this morning have not yet had the opportunity to read their Hansard from yesterday; there was only a very small number present in the chamber yesterday - that I explained that as we read Queen in the Constitution we should, in general terms, understand this to mean the Crown; that is, the person responsible for administering the executive government and for administering and maintaining the law.

I speak to the question: if there is to be a head of state, what should the powers of the new head of state be and how should they be defined? Of course, there should not be a new head of state. I will not repeat what I said yesterday but it is perfectly clear that we do not need a new head of state.

In order to determine what the powers of a new head of state should be, if there is one - and I sincerely hope there will not, and I believe that the people of Australia have sufficient understanding and good sense to ensure that there is not - but if there is a new head of state it is very important that we should understand the responsibilities of the Governor-General now; the responsibilities as spelt out in the Constitution. It is difficult perhaps to understand the full extent of the reserve powers because they are not spelt out. There is a very good reason why they are not spelt out, and this is because it is the responsibility of the Governor-General to protect the people.

I know that there are some who will say, `But the parliament has been elected by the people.' That is true. You have heard in an excellent address from Mr Paddy O'Brien this morning how the Prime Minister has extremely dictatorial powers. Not only does the Prime Minister have extremely dictatorial powers but the government of the day working together has totally dictatorial powers, irrespective of what the opposition might think and irrespective of what the people might think. One perceived that in 1975 at the time of what is often called the dismissal. There, the Governor-General dismissed the Prime Minister and called an election. It was the Governor-General who called the election. Of course, he had discussions with his new Prime Minister, Malcolm Fraser, but it was the Governor-General who actually called the election. He said to the people of Australia in effect, `I have done this in an endeavour to protect the people. What do you think about it?' And by the greatest vote ever the people of Australia said, in effect, `Governor-General Sir John Kerr, you did absolutely the right thing. We have had enough of this government.'

Some people are speaking about the need for citizen initiated referenda and a right to recall members of parliament, a right to recall a government. That is exactly what exists in the Governor-General now. There is a right to recall; the Governor-General protects the people. Conventions are important, but conventions cannot change the law. If the Constitution specifies that the Governor-General has a power, he has that power. If there is a convention that he does not exercise that power, that convention is that he does not normally exercise the power, not that he never exercises the power.

I know you all have your copies of the Constitution in front of you in this house today, for that is exactly what we are talking about. Maybe you do not need your Constitution in your hand; maybe you know your Constitution so well that you do not need to be referring to it from time to time. You will be aware that particular powers of the Governor-General are spelt out in section 58. The Governor-General has the discretion - and you will recall from what I said yesterday how he exercises that discretion and the restriction on the exercise of the discretion - to decline to sign or pass into law a bill passed by the parliament. This is for the protection of the people. He does this by reference to the interests of the people. He does this in his responsibility under God. He does have this power and he should have this power. Of course, a Prime Minister upset would be expected to dismiss the Governor-General, at least tell the Queen to, and the Queen must act on the Prime Minister's advice. He would tell the Queen to dismiss him. The people will have their say at the next election, won't they, as to whether the Governor-General was properly dismissed or not?

You will see, or you know already, that the Governor-General has the command in chief of the naval, military and air forces. The Hon. Gareth Evans seems to have left the chamber. The Hon. Michael Hodgman will recall an occasion when there was a dispute between the Tasmanian government and the federal government, when a particular federal government minister determined to use the air force in opposition to the Tasmanian government position. Now, supposing it had not just been the one use of the aircraft but supposing the minister concerned had decided to send a fleet of bombers to Tasmania: what would have happened? The Governor-General would have exercised his powers as commander in chief in the interests of the people. It is the responsibility of the head of state, if there be a new one, even as it is the responsibility of the Governor-General now, to exercise his powers, to use the words of the preamble, humbly relying on the blessing of Almighty God.

DEPUTY CHAIRMAN - We have on the list Mr David Muir, but there has been a substitution for Lady Bjelke-Petersen.

Lady FLORENCE BJELKE-PETERSEN - I am really here by default, I must say, because I did suggest that I was not going to speak, but then I thought that here was a wonderful opportunity for me to say a few words on this very important occasion. I really want to speak on whether Australia should become a republic or not. That was my main ambition, but I have been told I must keep now to the subject we have here, which is: if there is to be a head of state, what should the powers of the new head of state be and how should they be defined?

Personally, I do not believe that we need a republic or a new type of head of state. Nevertheless, I do want to have a few words about it. I believe that at the present time we already do have an Australian head of state. The Queen is the symbolic head, as far as I am concerned, and the Governor-General is our constitutional head of state. The Governor-General has the powers of the Crown, the Constitution, the Westminster system and their practices. I believe that the president, however chosen, if it ever gets to that stage where we choose to have a president, could have very unrestricted power. I had the privilege of being on the Witness program in Sydney not so long ago and I was interviewed by Paul Barry. He said to me, `You could probably become the president of Australia.' I said, `That sounds a very interesting point of view, but I believe that that would give me more powers than the government of the day, more powers than the Prime Minister, because I would be in charge of the army, the navy, the air force and the Commonwealth Police.' Actually, Joh on one occasion was asked what he thought about a republic. He said, `I think that would be all right provided you made me the first president, and you might have trouble dismissing me.' I think those of you who know him might say that that would be right.

Nevertheless, they are important questions. If the president's powers are to be such that they will be less than those which the Governor-General holds now, who is going to get the powers that he leaves behind? That is an important question that I think our republican friends want to be looking at too. If they go to the Prime Minister and his cabinet, executive government, I do not believe the people of Australia would be very pleased. The people of Australia keep on saying that governments have too much power now. Of course, lots of people are saying - even the man who drove me in the bus this morning - that if a president were to be appointed he should be elected by popular opinion. So you have two arms here: you have the popular opinion people, there is Peter Beattie, who just spoke before, and you have the people who believe that it should be by two-thirds of the parliament. The two-thirds of the parliament system would be fairly political; it would be very political indeed. I was extremely interested to listen to Peter Beattie talking about the Senate, codification and what the Senate ought to do. I was in the Senate when Paul Keating as Prime Minister said that the Senate was unrepresentative swill.

DELEGATES INTERJECTING - That's right!

Lady FLORENCE BJELKE-PETERSEN - It is not. It was a very fine institution and I was very proud to be a senator for 12¼ years. I believe this is a very important point: the republicans have to make sure that the aim of the republic is not finally to get rid of the Senate. I believe the Senate has very strong power, a power that can consult about what the decisions of the House of Representatives are. It is something that is very important as far as Australia is concerned.

I am pleased just to be able to say these few words here today. I certainly hope that we will not be changing our system. I certainly hope that we will continue to have a Governor-General, although I heard Mr Carr himself say that we should keep the name `Governor-General' - I think that is important - and the term `Commonwealth of Australia'. I suppose that would certainly please everybody. But, as far as I am concerned, I do not want to have a change at all. I want to keep what we have now. I do not believe that a republic can make Australia any more democratic than it is. I am very happy to live in Australia.

As I look around the world, I see what has happened to republics. I look at 97 per cent of them. I would not want to go and live there. I do not say that that would turn Australia into a republic like some of the 97 per cent in the world, but you have to be careful. The main rule is that if you get a president in you have got to be able to dismiss them if necessary. I leave those thoughts with you. I certainly do not intend to say what the powers of the new head of state should be and how they should be defined because I do not want a new type of head of state.

Mr MUIR - I cannot let this moment pass, being the former Australian Vice-President of Amnesty International, to reflect on how great it is that we today are able to discuss the issues that we are today in this great country of ours. Whether we are a republic or a monarchy has no impact on whether we commit atrocities to our people. But we believe that a republic is a change for the better for Australia and it is a process of our development.

Powers are seen to be a key issue in whether the head of state is elected by the people. Certainly this has been the view propounded by the ARM. I would urge that the ARM allow a conscience vote by their delegates here in this assembly in relation to the kind of republic that we have. I do not think that this is the place for party direction in relation to such issues. I think that all delegates here should be able to freely exercise their conscience when they vote.

Another point I should make in relation to the republic issue is that the Clem Jones team in Queensland actually did out-poll the ARM in that state. I leave that thought with you because I know the ARM have made it very clear that they have the leading mandate in relation to the issue of the republic. Perhaps we do things a little differently in Queensland. In relation to the Clem Jones model that has been circulated to this gathering, the model has been put up for discussion. We are the only team that has actually put up a model as such to this Convention. The key issue in that model for us is the election of the head of state by the people. Clearly one needs to focus on the powers in relation to that matter.

We recognise that when we talk about powers we take into account the fact that there are different perspectives in relation to power. There is the perspective of the Prime Minister or any prime ministerial aspirant. There is also the perspective of the Australian people. One could concede that any Australian Prime Minister would want the power to hire and fire. A Prime Minister would not want somebody out there in the public forum who may in discussion challenge issues of debate. We say that it is healthy for democracy for that to occur and that the proper perspective in relation to this issue is not the perspective of the Prime Minister but the perspective of the Australian people.

We believe that the head of state in a republic is the guardian of our Constitution. The primary role is to be the guardian of our Constitution and to be a fail-safe when our parliament fails to provide in a proper way for the Australian people. We are talking in this instance of safety and security for the Australian people. We accept that there is a need for a full codification of the powers in order to obtain that certainty. The present position is one of uncertainty, and wide powers as a result of that uncertainty. We do not accept the ARM position that the powers of a president remain identical as they are written in the present Constitution. Those powers are too wide. We can say that they are modified by convention, but the reality is that it is in black and white in that document - certain powers such as veto over legislation.

It is appropriate that the Prime Minister be the head of government and that the issue in relation to any contest between head of state and head of government can only occur where you have a head of government and an executive president. I am not suggesting that we have an executive president. I think that it is not beyond the intellectual powers of Australians to devise a safe model for a popularly elected president. I do not believe that our intellect is any less adequate than the intellect of the Irish, the Austrians, the Finns and the Icelanders. Those people have been able to devise a safe form of government and a safe and appropriate apportionment of powers between head of government and head of state. The models vary from the Irish republic that we have heard in discussion here this morning, where the head of state in the Republic of Ireland has very little power, to the strong model of Finland, where the popularly elected president in that place has executive power. But in all those four countries we have a popularly elected head of state and a Prime Minister, and it works.

We are looking for a best practice for the governance of Australia. We believe that the people of Australia under present governance are shut out. We believe that the best way of drawing the Australian people into our process of government is to give them a direct voice. I refer you, in relation to the codification aspect, to the Republic Advisory Committee report. It has been referred to in some detail today. It has been called the RAC report for short. There has been a circulation of documents here today in relation to that. I urge all delegates who have not closely perused the wording in those documents to please do so. I think it is certainly a very valiant attempt to codify power. It can be done.

In relation to the power issue, it is important that the head of state has some power. Clem Jones will be speaking to you later on this morning. He will be able to say to you that he has met hundreds and hundreds of people over the last few weeks who have gone to him and expressed a dissatisfaction with the present governance of Australia. The people want more direct say in government and they are concerned about the control of parliament by the executive.

It is important that the head of state have the power of referral of bills to the High Court. Gareth Evans made reference to that earlier today, and this is a matter of discussion that came out of Working Group 7. I am hoping that the Convention will support the resolution in relation to Working Group 7 in the sense that it leaves it open for a popular election.

The powers of a head of state would not relate to any reserve powers that were not properly set out. There would be no power of veto over legislation, as provided in the present Constitution under section 59. There would be no unilateral taking charge of the defence forces and there would be no unilateral action in relation to High Court appointments. The powers would include powers of pardon, and of commuting or remitting punishments in relation to Commonwealth jurisdiction; the power to address the Australian people after consultation with the executive council; the ability to refer bills to the High Court so that the Australian people could be protected in advance of any unconstitutionality; and the codified powers referred to in the RAC report.

I urge delegates not to be afraid to be innovative. Our original Constitution, as drafted by Sir Samuel Griffith and other fathers of Federation, was pure innovation. Please accept the challenge laid down by our predecessors to grasp the nettle for worthwhile change. Do not let any change be mere window-dressing. Symbolism is important to the Australian community, but the Australian people deserve more. Do not be afraid to accept the challenge. Do not be afraid to put your faith in the Australian people. Do not deny them the choice of electing their president. Thank you.

CHAIRMAN - Thank you, Mr Muir. I now call on Mr Malcolm Turnbull to address the gathering, followed by Clem Jones.

Mr TURNBULL - Thank you, Mr Chairman. We are dealing now with the issue of the powers of the new head of state. For the purpose of these remarks I will assume we are dealing with a non-executive head of state or a non-executive president - I am not closing off the option, from our point of view, of supporting a different name, but I will use that for the time being - who would have the same powers or less than the Governor-General.

Mr Clem Jones has proposed a directly elected model that would give the president additional powers. We believe that is not a good option. We feel that a directly elected president should either have no powers - for example, as in Ireland - or be the chief executive of the nation, as in the case of the United States. We think the French arrangement, where executive power is shared in a very confused fashion between the President and the Prime Minister, is the worst of all options. So I would say that we either go to Dublin for a directly elected president or we go to Washington; the Paris option, for the reasons advanced by Mr Carr, is not on.

What that leads us to is: how do we express the powers? What do we say about them? This is a very important issue because I think almost all of us would agree that it would not be satisfactory to have an uncodified set of powers - that is, to leave the powers to the constitutional conventions - if the head of state were to be appointed by a direct election methodology. That is clearly an important option that is being canvassed here today, and that is why codification is very relevant. The ARM has always been an advocate of codification, not simply because of the lawyers' love of writing things down, as Professor Craven referred to earlier, but because we believe it is important that our Constitution provide a more meaningful description of the way our country is governed.

Is it an outrage to have a clause in the Constitution which says, `Following a general election, the head of state shall appoint as Prime Minister the person whom he or she believes most likely to be able to form a government which will have the confidence of the House of Representatives'? Does anybody doubt that that is the convention? Does anybody doubt that that is what our constitutional practice is? At the very least, how can we resist putting in the Constitution, as has been done in the RAC partial codification model, those very basic principles which are beyond controversy? At least it would make the Constitution a more meaningful document.

Turning to the partial codification model, I would like to draw your attention to item 4, which deals with the dismissal of the Prime Minister for a constitutional or legal contravention. At the moment there is an undoubted power invested in the Governor-General and, indeed, state governors to dismiss a Prime Minister or Premier for a serious breach of the law. When I say it is an undoubted power, I mean that everyone agrees it exists; but there is absolutely no agreement as to the circumstances in which it should be exercised. There is no agreement whatsoever, and I think it very unlikely that there would be. We have had cases, as we had here in 1975 and other cases, where governors and governors-general have taken legal advice either from judges in private, which is very unsatisfactory, or from members of the private legal profession.

We have proposed in the RAC report, in the partial codification model, a mechanism for the head of state to refer an issue of government legality to the High Court to get a ruling. If the Prime Minister persisted in the breach of the law, then and only then would the head of state be able to take action. We feel that would be an improvement, but I have to say to you very plainly that that is a substantive change from the current practice. If you were looking at the partial codification model from a minimalist point of view - and I know that is an overworked expression - then you would not include article 4.

Turning to the way in which the conventions continue in the partial codification model, as George Winterton said this morning, you define the rules that are beyond any doubt and then you say, `In so far as we haven't dealt with the exercise of the reserve powers by the stated non-controversial rules, the conventions continue.' So the partial codification model would have the virtue of improving the comprehensibility and meaning of the Constitution by stating the non-controversial, non-contentious principles of our system of government and also by preserving the flexibility of the conventions for all of the reasons that have been advanced by the advocates of that.

Complete codification, for which there is also a model in the RAC report, endeavours to anticipate every circumstance in which the head of state would have the need to appoint or dismiss a Prime Minister and anticipates every circumstance in which he or she would be called upon to grant or not grant a dissolution of parliament. I think it is common ground that those are the only areas in which the reserve powers apply. Again I should state that, with respect to 1975, the complete codification model in the RAC report does not expressly address the position of the Senate. That, as I said yesterday, is a fact of our constitutional life and it makes Australia a very different parliamentary democracy to Ireland, Austria or many of these other countries that have directly elected presidents.

The way in which the complete codification model in the RAC report would affect 1975 is this: because the head of state can only dismiss the Prime Minister when the Prime Minister has breached the law, has been found by the High Court to be breaching the law and has said, `I'm going to keep breaching it,' the head of state would only have the ability to sack a Prime Minister who was trying to spend money which had not been lawfully appropriated pursuant to section 83 of the Constitution and who was persisting in it. It is a pretty extreme, far-fetched case, but that would be the state of affairs. It would mean, in applying it to 1975, that Sir John Kerr would not have been able to ambush Mr Whitlam. He would have had to wait until such time as Mr Whitlam had run out of money - and I have no doubt that some time before then Mr Whitlam would have bitten the bullet and called an election rather than persist.

Mr CARR - Fraser would have backed off.

Mr TURNBULL - Indeed, that may have been the case - Fraser may have backed off.

Mr GARETH EVANS - You are still confirming the Senate's powers.

Mr TURNBULL - Yes, I will just go on. The defect of the complete codification model - and I was coming to that, Mr Evans - from the point of view of the Labor Party and people who are concerned about the Senate's power is very simply this: the disincentive to the Senate exercising its power at the moment is that it creates an unholy constitutional mess, a crisis. Nobody knows what the rules are. That is a great consternation in the Commonwealth of Australia; that is a disincentive.

The concern that has been expressed to me by many people, including many eminent members of the Labor Party, such as Mr Evans, is that if the complete codification model were adopted it would be in a sense legitimising, and at least facilitating, the Senate's power. But the problem is that you cannot have a directly elected head of state without either removing the Senate's power, which is an option I will come to in a moment, or facilitating it. The one thing you cannot do is leave the capacity to create a crisis, which requires a constitutional umpire, and have somebody who is most likely going to be a political partisan being called upon to play the umpire's role.

The other solution to this, and it is a very simple solution - simple of conception, difficult of execution - is removing the Senate's powers altogether.

Mr WRAN - Whether to block supply.

Mr TURNBULL - Thank you. Whether you regard that as desirable, it is plain to everybody that it is unachievable.

Mr RAMSAY - Why?

Mr TURNBULL - It is unachievable because a large part of the political community will strenuously oppose it. But it is certainly a matter that is going to be brought up. I hope that has been of assistance to delegates in respect of the powers. I would, as Mr Muir said, commend the delegates to the chapter on the powers of the head of state in the RAC report and to those two models. I hope that, as we discuss codification and its value, focus will be given to the particular provisions of those codes because, as the archbishop said yesterday, the devil is invariably in the detail but there may also be a few angels as well.

Dr CLEM JONES - Mr Chairman, members of the various houses of parliament here today and delegates, I make reference to the members of the houses of parliament very specifically because, in the context of what we have been proposing in respect of the changes to the Constitution - the road to the republic, the codification that has been discussed at great length here, the powers and so on - the status of parliament is extremely important. Its status, and particularly its status in the eyes of the community, is extremely important.

Unfortunately, I do not know that those who represent us - those for whom we should have the utmost respect because they are doing the most important job there is in our society - realise just how low the esteem of parliament has descended. The attitude of the general public towards our members of parliament is really deplorable. We can argue as to why that is, but I want to suggest that perhaps in the change to a republic and the election of somebody the whole of Australia respects - provided he is given a significant role - you will have a great impact on Australia's respect for the political system and those who operate it, our members of parliament.

Earlier today, Mr Phil Cleary was very kind in making some remarks about me. I would like to say that he exaggerated a lot. But the important thing is that the reason I am here is not for what I or my colleagues believe. We are here because we set out to canvass the views of the community at large. The group that we established was a group that covered the whole of the state of Queensland, a group that predominantly comprised people with experience in local government. We had a past mayor, a present mayor, me, Ann Bunnell, who is one of our delegates here and deputy mayor of Townsville, and we had the mayor of Emerald. In fact, we had people from all over the state with different political views, and we charged them and ourselves with the responsibility of finding out what the people of Australia want in a republic.

Out of that came our model. That model does not necessarily reflect all my views or all the views of David Muir or Ann Bunnell, but it is what we in our experience came to believe was the wish of the people of Australia. It was said earlier, I think by the Premier of South Australia, that we have to seek perfection. Surely, in this context perfection is providing a system of government which is the nearest as possible to what the people of Australia want. That is the goal of perfection.

When we set out to detail this model, we were, as I said, entirely guided by what we understood was the view and attitude of the people of Australia. The most important thing that we found was the criticism I mentioned earlier - and it is a criticism I do not share - that the problem with Australia is the people who represent us. It was said earlier here that we have a two-party system of government which has served this nation well, and there is no doubt about it. It should continue. But unless we come up with something which is going to restore the prestige of parliament in the eyes of the Australian community that two-party system is doomed. We are already seeing that in the voting trends throughout this country.

If you look at the voting trends in the last election in Queensland, and then look at the vote that the Clem Jones group got and where we got it from, I believe those of you who are members of parliament will be concerned. It reflected the fact of an increasing number of votes in the areas where there had been dissatisfaction and where people voted for an independent group, which we were.

I could go on at length about this, and I could also talk about codification and so on, but I do not think that is necessary. We have heard from people talking about codification - partial codification, full codification and so on. As far as I am concerned, I think all of those are red herrings. We are not concerned with the powers that exist in other places - in Ireland, Austria or wherever. If there are any good requirements in those particular constitutions which we can adopt, so be it - we will adopt them. I believe codification is absolutely necessary. As Peter Beattie said, it is absolutely essential - we have to know, we have to have certainty. But the important thing is that the codification has to suit our needs. And when we say `our needs' what we really mean are the needs and wishes of the Australian community.

We mentioned that we have a motion to include in the powers of the president a right to refer any legislation to the High Court for advice on its constitutionality. That is something that applies in this situation and that we accept perhaps as a one-off in respect of the president's powers. But that is the important point. When we decide in the long term, the codification should fit the particular needs of the Constitution, which is not being changed, and the Constitution as we propose to change it.

As I said, you could go on talking a lot about these things or you could go on talking about codification, but I do not at this time want to discuss that. I will, I hope, later on. I want to emphasise the thing that I started to say: while the parliament must remain supreme, we must have somebody to make the people's contribution to government. We must have somebody in a responsible position with responsibilities that the people will accept and that the people want.

We do not need to fear someone because we give him a place in our structure. Our Constitution has protected us in that respect for 100 years. A new Constitution providing for the codification that we are talking about, providing for the method of election that we are talking about, providing for the model that we are talking about, can and will undoubtedly maintain that protection and obviate the suggested conflict that there would be between a president and a Prime Minister. We must seek to provide what the people want. That is my message at this moment, and that is my only message. We must seek to provide what the people want - not what we want, not something which we think protects ourselves at whatever particular level of government we may be in, not what protects ourselves as delegates here and having regard for what we may do in our respective lives. We want to make sure that what we do here serves the people of this country in the way they wish to be served and preserves the opportunity for some change that will come undoubtedly in this world of change but will have that one underlying theme: the people of Australia must come first in everything we do.

CHAIRMAN - Thank you, Mr Jones. I call on Mr Michael Lavarch, to be followed by Mr George Mye.

Mr LAVARCH - This Convention occurs against a backdrop of public debate on the republican issue which has almost solely focused on two broad issues: the relative merits of whether Australia should or should not become a republic and, moving on from that point, the best method of appointment. The opinion polls which we see regularly displayed, and one I think yesterday again in the Brisbane Courier-Mail, show very strong support for direct election - popular election. Yet in many ways this is a debate which places the cart before the horse. The horse in our instance is the question of the nature of the office of an Australian head of state and the exact powers which attach to that office. In my view it is only when we decide what we want the office to do and what power we give to the office holder can we logically flow on and make a decision about the best way of choosing or electing that office holder.

That reality is reflected in the agenda of this Convention. It is why we are today debating the issue of powers as the first substantive debate for the Convention. It is also an issue which was well recognised by the reports of the various working parties which we heard this morning. For instance, Professor Craven, though he and his group argued against codification, noted that, if direct election were to be a method considered, full codification would be needed.

The reports of the working groups which we will be asked to vote on this afternoon fall within three broad categories. One group argued for reduced powers. The second group argued that the same powers that attached to the office of Governor-General should be retained. That was the majority, I suppose, of the working groups. A third working group, working group 6, argued for broader powers.

The view that you take on these three alternative approaches depends very much on your concept of the best system of government which this country should have. If you believe as a starting point that the Westminster system, the system of cabinet and responsible government, the system which operates in Australia now, is a system which should be supported and be maintained, inevitably you are drawn to the conclusion that either the role of the head of state has to reflect the powers which rest with the Governor-General or potentially that those powers be reduced. If, alternatively, you believe that we should move fundamentally away from that system of government, that we should embrace a system which is more akin to that of an executive head of state - the American and similar style models around the world - then you would very much embrace the issue of broader powers than that currently enjoyed by the Governor-General.

All of these are equally valid systems and all of the reports that we have before us can be supported, depending on your point of view, on their respective merits. The issue is the path that this particular Convention should take. I think that we should very much adopt this spirit, which I believe was part of the original series of conventions that drew up the Australian Constitution. Our Constitution was drawn up not by philosophers but very much by pragmatists. It is not a document which flourishes with great expressions or particularly inspires, but it does go about the job very effectively of establishing a system of government, of dividing powers between the states and the Commonwealth, of providing a division of power between the executive, the parliament and the judiciary. If we as pragmatists, as realists, take that this is the system of government that is to continue in this country, then I think you quickly come to the conclusion that those who argue for broader powers really, as much as I respect their views, cannot succeed. This is I think the first of the proposals before us that we can put to one side.

The issue then turns to whether the same powers as currently enjoyed by the Governor-General or greater or lesser powers should be the option that we should further explore. I was a member of Working Group 7. The report of that group proposed to this Convention that there be a full codification of powers based on the model contained in the Republic Advisory Committee report and that, in addition, the power of the Senate to block supply, logically when going down the path of looking at the particular role of the head of state, should also be tackled.

While I, like Premier Carr and Gareth Evans, very much keep a candle burning to the idea that one day the issue of the balance of powers between the House of Representatives and the Senate should be seriously examined and that there should be a power to block supply, as a realist, as a pragmatist, I know that not only will that proposal not gain the support of this Convention; it will not gain broad bipartisan support and there will be very strong voices and broader opinion in the Australian community, which would not support such a course of action. Though that is not my personal desire, I accept that is the reality. I therefore accept that reality and believe, therefore, our prime consideration of this Convention should be on the issue of maintaining the same level of power and possibly debating whether a codification of powers, either partially or fulsomely, should be the model that we advance.

Where does this tie back into the issue of the method of election? It seems to me, and it has been pointed out by other speakers, that you cannot be one-half or one-quarter pregnant in this debate. If we are to have a head of state who holds and exercises executive power, then let us go down that path and give full executive power. The difficulty with the proposals that we have before us is that they do not quite do that but they do not maintain the same powers or reduce those powers. That is why I do not think direct election is a viable option to us. Going down the path of direct election is hand in hand with going down a path of reducing powers, including the power of the Senate, which I do not believe, as a pragmatist, we will achieve.

I do, however, believe that full or partial codification of powers or a reference to the existing conventions are all viable alternatives which will sit either with the McGarvie model or with a two-thirds majority model for the selection of the Australian head of state. My preferred model is that we do codify those parts of the existing powers, and the conventions which underpin them, which are non-contentious. They have been very well set out in the Republican Advisory Committee report.

We should have an open mind when going to the next step of the concept of full codification, but I think the prospect of gaining support from this convention and the broader community is somewhat less than optimistic. If we are to achieve the charter that has been given to us then we all must give some ground. Just as I might have to accept that my idea of Senate power being eliminated must give way to gain consensus, other delegates will also need to consider giving some ground. We can achieve that around a model of partial codification based on a retention of essentially the same powers which the Governor-General currently enjoys. It is around these styles of resolutions that our deliberations should be focused.

The Right Reverend HEPWORTH - I stand here as a member of the group of delegates - the second largest - to this Convention who were elected on the unambiguously clear title of `No Republic' but whose members have nonetheless agreed that they will make an equally unambiguous contribution to the Convention by highlighting through working groups and debate the standard against which we are here setting all other proposals, that is, the current constitutional arrangements which have, as with every matter in the balance of powers issue and therefore the debate about powers, set a benchmark in 20th century politics which is a shining light in an otherwise rather desolate political landscape.

The crucial element of this debate, which has perhaps been touched on by Paddy O'Brien but, I suspect, accidentally, has not been touched on by many others and that is that it is quite meaningless in the debate on our constitutional history to discuss the powers of the ruler without first being absolutely clear on the powers of those who are allegedly ruled. In other words, the debate about the rights of the citizen must go hand in hand with the debate about the rights of presidents and prime ministers.

DELEGATES - Hear, Hear!

The Right Reverend HEPWORTH - To debate one without the other is to be establishing a system based on the assumption that there will be those who are ruled virtually without rights, in other words, an elite system of government in which the people are not the principal constituent. The essence of the existing system is that, at least since the glorious revolution, which I remind our republican friends was quite some time ago, the Crown has been the custodian of the rights of the people against elected and executive government, which is likely always to overstep the mark in grabbing power. That must be the starting point because the existing system exquisitely protects the rights of the citizen against an abuse of executive power. Since the executive comes from the democratic source, executives in our system are always likely to overstep their power, forgetting the democratic origins of that power and presuming to act as an executive autocracy.

We therefore must be very clear that the origin of our present system begins with, dare I say it, the British Bill of Rights - that itself has roots in Magna Carta - and sets out the rights of the individual against government and then proceeds on that basis to define those powers which it is tolerable for executive government and the Crown to exercise. In the light of the models before us, that means that we must be looking at the constraints on presidential power rather than on the smooth working of presidential power. I hope we will all constantly fear any sort of president that has a smooth life.

If I can take you back, since it has been mentioned several times this morning, to the history of constitutional reform in Australia, almost all proposals have been rejected. Some of my colleagues in political science have interpreted that as meaning that the people are terminally pig-headed and do not like change. In fact, any change that had nothing to do with making the lives of politicians easier has gone through. Almost all the changes, since they are crafted in the parliament, have been designed to enhance the power or facilitate the activities of politicians. And they have all been defeated. Even the one that went through in the aftermath of 1975 was designed to curb the ingenuity of state parliaments attempting to craft neat political solutions to otherwise impregnable political problems.

We begin by highlighting the concept that power must be balanced and the first source of balance is between the people and the government. The powers of the president must be crafted in that way so that the constant point of reference is not the efficiency of the executive but the freedom of the people. Any proposition that begins backwards we will resist, and all the propositions currently before us are backwards; they begin with a consideration of presidency. Presidency understood in that way and Australia's extraordinary ability to craft systems for freedom are in direct contradiction. Indeed, in one's lighter moments one may well have looked to the fact that for 100 years we have accepted a monarch living 12,000 miles away because for a group of people at least partially descended from convicts that was a safe distance from the source of authority. We are now bringing authority much more immediately, even if it is only the fact that the political secretary at Buckingham Palace has tended to give rather good advice to the political secretary of the Governor-General, and let us be quite real about the interplay that has occasionally taken place - publicly in 1975 but constantly before and after.

The crucial element in any discussion of powers must be the problem of enhancing the democracy whilst providing a system which stands in judgment over it, at least in the exercise of executive power in a democracy, which is able to judge according to greater principles. All constitutions seek to entrench some principles that cannot easily be changed, particularly by the mob on a bad Saturday morning when they are voting. There is always the problem that if everything is easily changeable, everything will be easily changed and distorted.

There are certain principles we ought to seek to enshrine and none of them are here yet - principles surrounding liberty, freedom, property, relationships and, dare I say it, also a group of principles beyond the personal which seek to entrench the nation and its personality. We have not touched on treaty making and yet it is one of those powers ill defined in the Constitution exercised in quite a different way now to that which was anticipated and which has a profound effect on the daily lives of people by entrenching a range of social as well as political principles which suddenly govern Australia without local political debate. If we are worried about a powerless monarch 12,000 miles away, we ought to be worried about the treaty powers and be looking at them much more closely than we have. That is an issue of personal freedom and of sovereignty, which the monarch is not.

So we would want to further this debate by switching it around and suggesting crucially that we look again at how much of the Bill of Rights has indeed been inextricably translated to Australia, how much of that doctrine of the rights of the individual standing over against the rights of government can be entrenched and how much we can limit the exercise of presidential power by balancing it in its present exquisitely balanced way against the powers of executive power and encapsulate that entire system within the context of unambiguous democracy which we now have but which, with the checks and balances removed, we are likely to lose unthinkingly.

Sir DAVID SMITH - A lot has been said this morning about 1975. It is a year which I remember particularly well. The Hon. Bob Carr, in opening this debate this morning, said that he had maintained the rage. Let me give the Convention the real truth of the matter. If I could just go back to the previous year, 1974, for a moment, we find that in that year the coalition parties in opposition had merely threatened to block supply in the Senate and Prime Minister Whitlam called on the Governor-General and recommended an immediate double dissolution and a general election. But in 1975 Mr Whitlam decided not only to ignore parliamentary convention relating to supply but also to pretend that no such convention existed anyway. He started arguing that the Senate had no right under the Constitution to refuse to pass a money bill which had been passed by the House of Representatives and that the Senate had no right to try to force the government to an early election. In this Mr Whitlam was, of course, quite wrong, but that did not stop him from trying to convince the electorate that he was right.

Faced with the prospect of having no supply of money with which to govern, the Whitlam government decided to tough it out. As government departments began to run out of money with which to pay the salaries of public servants or to pay their bills from private contractors for the supply of goods and services, the government tried to circumvent parliament and enter into arrangements with the banks to, in effect, lend it the money until it could get it from parliament.

Mr WILCOX - I can give concrete evidence of that.

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