CONSTITUTIONAL

CONVENTION

[2nd to 13th FEBRUARY 1998]

TRANSCRIPT OF PROCEEDINGS

Thursday, 5 February 1998

Old Parliament House, Canberra

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

CHAIRMAN - I have received a proxy from the Hon. Kim Beazley, the Leader of the Opposition, nominating the Hon. Leo McLeay as his proxy on certain days for certain times. I table that proxy. In addition, I have received a proxy from Mr Lindsay Fox, nominating Mr Frank McGuire for certain dates and places on compassionate grounds, which we will table.

Yesterday I had a request from Dr Mitchell about identifying official Convention papers. To make sure that delegates understand what papers are official Convention papers, I have organised for all official Convention sheets to be in green. The official papers will be designated in that form so you will be able to identify all official papers from the Convention secretariat.

The third thing is that I had a number of complaints yesterday about the degree to which some delegates interjected while other delegates were speaking. Some of us are more accustomed to interjection than others. Some delegates use them to their advantage during the course of their speech but others find the interjections intrusive. I ask all delegates to remember that interjections are difficult for those unused to parliamentary fora. It would be appreciated if they kept their interjections to themselves. If they feel so opposed to whatever a particular speaker might be saying I suggest they leave the room rather than remain and get embarrassed. It is not only that there are a number of individuals who feel quite intruded upon within the chamber; it is reasonable that individual delegates register that others are offended even though they are not the speakers. This is a Convention where we want to obtain the diversity of views that represent the Australian people. It is therefore particularly important that we behave in an appropriate way.

The next matter that I need to mention is mobile phones - not just those in the press gallery but also those of delegates. If you are here with your mobile, please switch it off in the Convention room. If you wish to have telephone calls, please take them outside this Convention room. That admonition applies to those in the spectators' gallery as it does to those in the press gallery.

The list of speakers on whether Australia should become a republic is still very large, as is the speakers list for the 10-minute addresses on today's issues. I know numbers of you have been shuffled around the queue, but we are trying to give priority to those delegates who have not spoken at all. The next priority goes to those who have spoken only once. There are exceptions to that either because a person has unfortunately been unable to speak at a particular time and they have given us notice so they have gone back on the list, or there may be other reasons. Essentially, we will try to give priority to those who have not spoken so that everyone gets an opportunity to make a contribution.

On the overall question of speakers lists, it is essential that delegates who wish to speak on the general question - that is, whether or not Australia should become a republic, on which there will be considerable debate on Monday, day 6, and Tuesday, day 7 - nominate as soon as possible so that we can draw up a schedule for the rest of the Convention. I would suggest that we close nominations for that general debate, say, at 4 o'clock this afternoon. Those who wish to speak on the general question, please give your names to the secretariat by 4 o'clock this afternoon.

The debate that will take place on the last day of the Convention - the 10th day - will also be on the general question. But it will be somewhat different because it is hoped, by the evening of the ninth day of the Convention - that is, the penultimate day - that we will have taken our final votes on a preferred vote. When we are speaking on the 10th day there will be another. In due course, the Convention will have reached its conclusions on the preferred alternate model so that by the time we come to the final vote on Friday week we will actually be having another debate, but it will be more precise because we will have in mind the model that has emerged from the deliberations during the balance of the Convention.

The Resolutions Group, as you will recall, presented a preliminary report through the Hon. Gareth Evans. It is proposed that resolutions groups report at noon today. I propose that that report be debated for one hour - that is, up to lunchtime at 1 o'clock - with a strict limit of three minutes from the floor. It is intended that the vote on that resolutions group proposal take place at 4 o'clock. The vote will take place later on the day that all voting takes place, but this will enable delegates to consider, across the floor, the proposal from the Resolutions Group and then to vote on it at 4 o'clock this afternoon. As you will recall, the proposal was that all votes be taken at the end of the day so that all delegates can be present. I would propose to undertake that with respect to the concern that there be an opportunity for consideration of the consequences of a report that has been submitted.

The debate today is on the issue of arrangements for appointment and dismissal. There are a number of working group reports which were tended to the Convention yesterday. They are again appended to the Notice Paper for today. We have a very long list of speakers. I have a number of names of people who are apparently not on the list and I will consider what we should do with them. We have a long list of speakers and I see that three people have also asked to speak. I do not know what can be done about it. There can be some adjustments but I have tried to put on the list, as high as possible, those who have not spoken at all. It has largely been to try to accommodate those who have not spoken before.

There is one other procedural matter that I have to identify, which is that of proposed amendments to the draft resolutions for today. You would know that these six working group resolutions will be up for voting after 4 o'clock this afternoon, but in order that the amendments can be put on the screen for consideration again, as we did the other day, we will determine a cut-off time of noon - that is, lunchtime - for amendments for each of these working group proposals. I invite Mr Alasdair Webster to speak on the issue of the day.

Mr WEBSTER - I want to say at the outset what a great honour and privilege I consider it to have been invited to be a delegate at this Convention. I thank the people of New South Wales, who elected me to that position.

There is a definition of Constitutional Convention going around at the moment which says that it is a place where somebody gets up to speak and says nothing, and where nobody listens and then everybody disagrees. I hope, as a result of the prayer that you prayed this morning, that at the end of next week we will all agree and come to some reasonable consensus with regard to the future wellbeing of this country in which we live.

So far I have been a good listener to the main sessions of this Convention. I have listened intently to what all sides are really saying and, frankly, I struggle to find acceptable modes of appointment in any of the models proposed. Every alternative seems shallow when compared with appointment at a coronation service, where our head of state accepts a Bible as `the most valuable thing that this world affords'. He or she promises, to the utmost of their power, to maintain the laws of God and the true profession of the gospel. And, before any heir to the throne can get their hands on the sceptre, which is the symbol of kingly power, they must first accept the orb - a golden sphere mounted by a cross - with the following words: `Take this to remind you that the whole world is subject to the power and empire of Christ our redeemer.'

The clashes so far over appointment of any future Australian president perfectly illustrate the weaknesses of republicanism. They have been clashes between the elitists and populists. Both the mini and midi proposals favour the rigidly disciplined parties and, hence, the political elite of this country. Understandably they are protecting their interests, such as prime ministerial power, by keeping the election of a president out of the hands of the people. No wonder the polls show that the maxi proposal is popular. Electors are feeling disenfranchised by power politics. They want a say in electing any future president.

Phil Cleary, Professor O'Brien and others gave us strong warnings about the strength of electoral feeling in this regard. The very struggle in this Convention between the elitists and the populists directs our attention to the central weaknesses of republicanism. Republican systems select their leader and determine all their laws on the false idea that the will of the people determines what is right and wrong. Throughout history, powerful minorities have manipulated the will of the people, producing the French Revolution and Hitler's Third Reich.

We should not give absolute sovereignty to the so-called will of the people any more than we should give it to tyrannical kings or to parliament. Those who manipulate the will of the people in a republic to make or break presidents expect to, and usually do get, a pay-off. They coerce the presidents to accumulate and centralise power and then use it to quell opponents and advantage friends.

Over centuries, our monarchical system has moved in exactly the opposite direction. The personal power of the king was appropriately regulated and distributed. Apart from infrequent personal exercise of reserve powers, emphasis was placed on kingly virtues such as servanthood. With all the talk of minimalist approaches to this Convention, ours is a minimalist monarchy.

In a republic there is no legal authority higher than the will of the people. History has shown all too often that those at the top of the republic try to manipulate the will of the people, driving it towards dictatorship. Those below drive it towards revolution because they see that the will of the people is being manipulated; they become frustrated and then rebellious. Corruption and violence are therefore inevitable in a republic. History bears sad testimony to this, including in the greatest of all republics, the United States of America, where the dismissal of the President has sometimes occurred by means of a bullet. This is a direct result of having a president elected by the people: it polarises the nation. One half of the nation think he is God's saviour who will solve their problems; the other half want him out of the way.

Recently my wife and I attended our daughter's graduation ceremony at the Defence Academy in Canberra. We marvelled, as we should, to see the Governor-General, as chief of the defence forces, get out of his box and walk across to his Holden Caprice to be driven quietly back to his house at Yarralumla.

As he drove past the guard box at Government House guarding the entrance, we reflected on what would have happened if our daughter had been graduating from the United States military academy at West Point with President Clinton as chief of the defence forces. We imagined the weeks of detailed security preparations. There would have been at least two helicopters overhead. There would have been snipers on every rooftop and metal detectors swarming around the President as he moved towards his bulletproof cadillac, and then he would be followed by a convoy of heavily armed security people, which would be like entering a maximum security prison.

My wife and I, while we have great respect for the people of the United States, are very grateful to be Australians living under our existing minimalist head of state. Perhaps some of you are horrified that I should dare to question the so-called will of the people. If you are, I venture to suggest that you have accepted the fallacy that democracy is the source of our freedom. In reality, nothing could be further from the truth.

It was the development, over many centuries, of a biblical system in the government of Great Britain which led to what we very loosely call democracy. I will be talking about that in a later session. Our hereditary monarch guards our freedom not by the powers that the monarchy exercises but by the power it denies to others. Big money, big government, big media and big anything else, in their attempts to manipulate the so-called will of the people, simply cannot influence who gets our top job. Kings and queens are born into that position. None of the proposed methods of appointment and dismissal does anything to achieve what we prayed for this morning, namely, the true wellbeing of the people of Australia. In fact, they would be detrimental to the Godly foundations of this Federation.

I want to end on a spirit of optimism by quoting a poem about two frogs that fell into a deep cream bowl - you might call it a froggerel. These two frogs fell into this deep cream bowl and could not get out. They were going to drown.

One was an optimistic soul, the other took a gloomy view. Well drown he cried without more ado.

So with one last despairing cry he kicked up his legs and he said goodbye.

He drowned.

Said the other frog with a merry grin, I can't get out but I won't give in.

I'll keep swimming around until my strength is spent, then will I die the more content.

Bravely he swam til it would seem, his struggles began to churn the cream.

On top of the butter at last he stopped, and out of the bowl he gayly hopped.

The moral of the poem is easy found.

If you can't see a way out, you keep swimming around.

I say to all minimalist monarchists in Australia today: stay optimistic, keep smiling, keep praying and keep swimming hard because in 1999, when the referendum is held, the cream will definitely turn to butter.

Mr ANDREWS - The task of today's session of this Convention is, I believe, to test each of the propositions put forward for the appointment and removal of the head of state, which can be summarised as follows: first, the popular election of the head of state; secondly, the election and possible dismissal of the head of state by a two-thirds majority of a joint sitting of the Commonwealth parliament; and, thirdly, the appointment and dismissal of a head of state by a constitutional council acting on the advice of the Prime Minister.

Our task, I believe, is to searchingly question each model and to consider not only the rhetorical blandishments offered in favour of a particular proposition, but to identify any shortcomings and to ask those favouring each model to convincingly answer the questions put to them. Future generations of Australians will pay us delegates little credit if we blindly adopt some abstract theory without giving consideration to the practical considerations and consequences which follow. So let me examine each model.

The advocates of a popular election of a head of state insist that their model is preferable because the people ultimately decide the occupant of the office. They ask: why can't the people be trusted with this decision rather than the representatives of the elected people? But this, I submit, is the wrong question. Of course the people can make a decision, of course we can have a republican system with an elected president but what are the consequences for the stability of our Westminster system of representative government of trying to impose that sort of change upon it?

Rather, we must ask: first, will not the candidates for an election under a popular system, whether endorsed by political parties or not, conduct a popular campaign in which they seek public support for what will ultimately be political programs? Will not the popular election of a head of state create another focus of power to rival the Prime Minister in government? If so, how then are we going to resolve the ongoing conflict between the two? To date, I believe that no adequate answer has been given to these questions by the proponents of that model.

Secondly, the Australian Republican Movement proposes the election of the head of state by a two-thirds majority of the Commonwealth parliament. This model has long been regarded and said to be the minimal republic but yesterday Mr Turnbull conceded that the model is not the most minimal, that the proposal for a constitutional council appointed in accordance with the strict formula established in the Constitution itself, as proposed by the Hon. Richard McGarvie, is the model which most replicates the current system.

What the Australian Republican Movement presents is the image of a well formed, long thought out, internally consistent method of appointing and dismissing a head of state. But when we examine the proposal in more detail, we find that, first, the revisions to allow the dismissal by a two-thirds majority of parliament have now been abandoned by the Republican Movement and the actual method of dismissal is uncertain; secondly, the rationale of bipartisan support for the head of state is compromised by removing the power or the ability of those people who are represented by the opposition and the minor parties in the Senate to have a say in the dismissal of the head of state; thirdly, the proposed candidate is exposed to possible scrutiny of his or her public life, and perhaps private life and reputation, in parliamentary inquiry and debate; and, fourthly, an inconsistency manifest in one body - that is, two-thirds of the parliament - being designated as the most appropriate body to make the appointment but the assertion that this same body - two-thirds of a joint sitting of a Commonwealth parliament - is inappropriate to undertake the more important task of dismissing the head of state.

We are told that the appointment by a two-thirds majority will ensure that the candidate is not beholden, nor seen to be beholden, to the Prime Minister or any particular political party. But this, I submit, is merely a facade, a sop to the notion that the people should decide upon the occupant of the office because the candidate will still be put forward by the Prime Minister. Only one candidate will be put forward for the election. Even though the opposition parties may disagree with the choice of candidate, they are unlikely to voice any more than the mildest expression that other suitable candidates exist.

If this is true, given the fact that opposition parties have an aspiration to form a future government and therefore will have to work with the chosen head of state, the fact is that the candidate is in reality and in perception the candidate chosen by the Prime Minister of the nation. But if this is not the case, if it is otherwise, then we have the prospect of another ministerial candidate being put forward and the unedifying disuniting spectre of a parliamentary debate into the suitability for office of the proposed candidate. Do we want in this country the sort of political witch-hunts that accompany the appointment of Supreme Court judges in the United States of America? How, I ask, can this outcome attract suitable candidates, enhance the role of the head of state and promote the office of the head of state as a unifying institution in our nation?

When we turn to the dismissal of the head of state, the logic for the proposal is exposed for nought. If it is important to have a two-thirds majority of parliament to appoint a head of state in order to improve the system - the words which Mr Turnbull used yesterday - that is, to ensure that the fullest national endorsement to the appointment of the head of state involves a two-thirds majority of both houses of parliament, why is the much more important power of dismissal not also subject to the fullest possible national endorsement by a two-thirds majority of a joint sitting of the Commonwealth parliament? The answer is simply that the model, as originally proposed by the Australian Republican Movement, is unworkable, that a head of state dismissible by a two-thirds majority of parliament effectively would be unable to be dismissed. In other words, an alternative focus of power would be established in the nation.

This shift away by the Republican Movement from a majority of two-thirds of the parliament being able to dismiss the head of state compromises the rhetoric, I believe, of the ARM about the position of the head of state being bipartisan. Consider for a moment the situation in which the minor parties in the Senate ensured the appointment of the head of state by contributing their numbers, perhaps with the government, to the two-thirds majority but then had no say whatsoever in a possible dismissal of that head of state. Unless Mr Turnbull can adequately respond to these queries, then I am forced to conclude that what he offers is a shimmering, alluring mirage that, upon closer inspection, starts to break up and disappear little by little from our vision.

Let me turn to the McGarvie model. The suggestion for the appointment of a head of state by a constitutional council on the advice of the Prime Minister has received, I believe, little technical criticism. This is possibly because it seems to me to be the most thoroughly argued model. Indeed, the only real criticism voiced to date is that it is elitist or that the members of the council could be subject to outside pressure to act in a certain way. Neither objection seems to me to be substantial. The constitutional question, though, that I have for proponents of this model is whether, by allowing retired judges to be members of the Constitutional Council, the constitutional convention about the separation of powers is endangered.

I put these questions to the advocates of each model. I am concerned about the proposals to elect the head of state or to appoint by a two-thirds majority of parliament, that those proposals involve flaws so substantial that they are ultimately unsustainable. As delegates, I believe we have a duty to seek answers to these questions. Only then can we decide whether a particular model is the best to put to the Australian people as an alternative to the current system. I look forward to detailed responses.

CHAIRMAN - The third speaker this morning is Professor Patrick O'Brien, who was unable to speak yesterday for various reasons.

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