Ms MARY KELLY - I have a copy just in case. I move:

After existing two dot points, add new dot point:

"Be mindful of community diversity in the compilation of the short-list."

I must say I am referring to the original shape of the paragraph but I think it still fits within the Tannock version. My amendment reads that the committee `be mindful of community diversity in the compilation of the short-list'. To be honest, this is a lot wetter than I would have liked to move but, because one does not know the size of the short-list, it is very difficult to move something firmer about things like gender balance and so on. One also cannot mention all sorts of different balances because you then reach an assumption that the short-list will be very large.

On that basis, because the committee itself is structured in a mindful way about diversity, this amendment asks that committee to be mindful when it is making the short-list about what that diversity means. In other words, its real meaning is that you cannot put up all men or all women and so on. Although it is very general, that is necessitated by the general nature in which I am trying to insert it. It is really a thing about the spirit of it.

CHAIRMAN - Can we vote on that or would anyone like to speak against it?

Professor WINTERTON - I am in support of the principle behind this, and I am sure the committee would be mindful of these things but, with all due respect, too much political correctness is going to kill the republic before it is even conceived.

CHAIRMAN - The question is that the amendment be agreed to.

Motion carried.

CHAIRMAN - I have a proxy advising that our colleague Mr Neville Bonner is not well and, in light of his obvious frailty, I think we should accept this recommendation for a proxy. He has nominated Professor David Flint as a proxy from 4.00 p.m. this afternoon.

B. Appointment or Election Procedure

Ms BISHOP - I move:

2) Amend Section B in the following manner:

* by deleting the phrase: "Having taken into account the report of the Community Consultation Committee."

*by deleting the phrase: "which shall be done without debate."

In view of the fact that the Tannock amendment got up, the amendment at the first dot point in (2), which deletes the phrase `having taken into account the report of the Community Constitutional Committee' will no longer go ahead because there is a committee. That amendment was based on the deletion of the committee.

CHAIRMAN - Yes. In light of that, I think we should withdraw it.

Ms BISHOP - Mr Chairman, I do persist with the amendment deleting the phrase `which shall be done without debate', at the end of that paragraph.

CHAIRMAN - Ms Bishop has amended her amendment. That part of it relating to `having taken into account the report of the community constitutional committee', is deleted, but the second part remains. Are there any speakers against the amendment?

Mr TURNBULL - Mr Chairman, there is quite an inconsistency between the attitudes taken by Julie Bishop in respect of the community committee and in respect of this amendment deleting the phrase `which shall be done without debate'. The reason for the phrase `which shall be done without debate', which is standard procedure anywhere in the world where presidents are appointed by parliament, is so that there is not the sort of personal criticism or attack that has been cited as a reason for not having the committee.

I would have thought that if you were against the committee, you would be delighted at the phrase `which shall be done without debate'. At the moment, thanks to the Tannock amendment, we have a committee that will be of workable size, that will be representative, that will act confidentially and discreetly, and will not publish any nominations without the consent of the nominee. So, unless there is a breach of security, there should be complete confidence there. This ensures that there are no attacks under parliamentary privilege on a candidate for the office of head of state in the course of debate. For that reason, I oppose this amendment.

CHAIRMAN - Thank you, Mr Turnbull. I have two foreshadowed amendments, and I think it would be wise to produce them so that people can see them. Councillor Tully, do you have the 10 signatures that you require to endorse your amendment?

Councillor TULLY - The signatures appear on the document. The foreshadowed amendment is that paragraph B be deleted in its entirety and that the following words be inserted in its stead: `The president shall be elected directly by the people of Australia, except where a joint sitting of both houses of the Commonwealth parliament elects the president by a majority of at least three-quarters.'

CHAIRMAN - There is another foreshadowed amendment. I call on Mr Clem Jones to foreshadow it so that people know what it is.

Dr CLEM JONES - My amendment is that, in light of the fact that the bipartisan model did not receive 50 per cent of the vote and the ARM clearly expressed and published undertaking to take notice of the wishes of the people in preparing the final model, including particularly if provision for the election of the president, is not fulfilled, the model should include that provision.' Actually, `ARM' should go in there in relation to the published undertakings and so on.

CHAIRMAN - Are there any speakers in favour of amendment 2?

Mr FITZGERALD - I support Ms Bishop's amendment to delete the words `which shall be done without debate'. It is quite technical. If the Prime Minister moves, he can only stand in his place and say, `I move that Mary Bloggs or Joe Bloggs be the next president' and then that would be seconded. I think it only fitting that he makes a speech outlining what Mary Bloggs or Joe Bloggs has in their favour and why he is in favour and why he is nominating them. Also, in seconding it, the Leader of the Opposition should be able to make a speech, so that is technically a debate.

I think it is right that anyone else should be able to speak. I do not think that normally people would want to tear a character apart, but really it is imposing on parliament to say that nobody can speak. If you say that, then why get parliament to do it - just let two of them do a secret deal somewhere, but don't humiliate parliament by saying that you cannot make a speech in parliament.

Ms MACHIN - Taking up the last point that was made, having been in these sorts of situations, I think we ought to remember that there is quite a bit of dignity in these sorts of parliamentary procedures. As I understand it, the normal process would be the sifting, and then the final recommendation would go forward to parliament. It would probably be moved by the Prime Minister and seconded by someone else, possibly the Leader of the Opposition in the spirit of bipartisanship. That would be the end of the debate.

The motion would be put, the House would presumably agree to it because we would like to think that this spirit of bipartisanship would mean that the issue was resolved before it went into the House so we did not have an untidy, unpleasant debate on the floor of the chamber. That is the way it works in the real world. I think that is the way we ought to expect it to work, and realise that from time to time politicians and leaders get it right.

CHAIRMAN - Mr Cowan, would you like to speak for the motion?

Mr COWAN - I speak in support of the motion. I again remind Mr Turnbull of how contradictory he can be at times. He has spoken very much in favour of this bipartisan model on the basis that it would require the support of the two major parties in the parliament. In other words, he has argued very strongly that any nomination would have the support of the majority of the parliament. To then argue the case that we do not want this to be debated in the parliament is quite contradictory.

There would be no doubt at all that this would provide an extra caution for the Prime Minister and the Leader of the Opposition to ensure that the person whom they selected for the president would, in fact, have not bipartisan support but the support of the parliament. There is no doubt at all, parliament being such a public process, that it should be debated. Any nomination by the parliament for the position of Speaker or President - as you know yourself, Mr Chairman - is debated, and this particular matter should be debated too.

CHAIRMAN - Are you for or against, Professor O'Brien?

Professor PATRICK O'BRIEN - I wanted to speak for the motion. Someone was talking to me as you were conducting that previous discourse. I am supporting what Hendy Cowan had to say.

CHAIRMAN - I want somebody who is against the motion to speak.

Mr BRUMBY - Mr Chairman, I want to speak against the amendment and, in doing so, I want to foreshadow a further amendment to the original text which would be to add the words `which should be done without debate, except for the motions moved by the Prime Minister and Leader of the Opposition'. I think it is appropriate that in a speech which nominates the president of Australia there should be an opportunity for comment by the Prime Minister and for that motion to be seconded by the Leader of the Opposition.

I think of precedents around, and probably the best precedent which is around is actually the nomination by state parliaments of a senator to fill a casual vacancy. We have had two of those situations which have arisen in Victoria. On both occasions the nomination which has gone forward through the Victorian parliament has been a nomination moved by the Premier of that state and seconded by the Leader of the Opposition. I believe it would be appropriate in these circumstances. We are nominating a president. I am sure that the Prime Minister of the day would want to put some remarks on the record in the Hansard to acclaim the virtues of the nomination and for that nomination to be endorsed again on the record by the Leader of the Opposition.

I agree entirely with the point that Malcolm Turnbull made before. You would not want an open debate in the parliament about those matters. It does not happen anywhere else in the world. You would not want the opportunity for dissident members of parliament to perhaps attack the reputation of the nominee. It is therefore appropriate that the Prime Minister and the Leader of the Opposition should be able to make that speech and put that on the record. I foreshadow that amendment.

CHAIRMAN - In order that we can process it then, Ms Julie Bishop, do you accept that proposal or not?

Ms BISHOP - No, I do not.

Mr HAYDEN - Mr Chairman, I am strongly supporting this recommendation for these sorts of reasons. Firstly, parliament is an open public forum for discussion and testing the issues of the democratic process. We should be striving not to limit the opportunities for that sort of process to take place but to enlarge them.

Secondly, on a more substantial practical ground if the debate or discussion is muzzled. What about a situation where there is an independent in the parliament regarded as something of an eccentric because of the way he raises certain issues and is excluded from the processes and is asserting something about the nominee to come before parliament, which the rest of us should know? It sometimes happens that some of these people who are independents and who are behaving in an eccentric fashion, in fact, are ahead of their time and are responsible for a substantial change in attitudes in the community and dramatic ones.

I think Mr Hatton in New South Wales is a classic case with his allegations about the police. What if an independent like that is muzzled? The late Kevin Hooper, who was my campaign director for some time and a state parliamentarian in Queensland, was raising issues about corruption in the Queensland police force long before Fitzgerald and long before the media were prepared to embrace concern on those issues.

I can recall the Courier-Mail or the Sunday Mail - it was one of them - publishing an editorial saying that Hooper had gone too far with the things he was raising in the parliament and that people should be careful of him. He was my campaign director. I was even starting to have doubts myself. But everything he said was proved correct and the media were a long time behind the late Kevin Hooper in exploring these issues. You cannot muzzle these people. They have to be given a chance to express their concerns and those concerns can be tested. They may be wrong but more than occasionally they are right, and that is why it is important to protect parliament as an open public forum for discussion.

CHAIRMAN - Thank you. Mr Evans, are you for or against this?

Mr GARETH EVANS - Mr Chairman, I am for the amendment but not for the reason that is advanced by its mover nor certainly that advanced by Bill Hayden. I do not believe it is appropriate, given the nature and the dignity of the office we are talking about, for the strengths and weaknesses of character of the candidate in question to be exhaustively canvassed on the floor of the parliament. I do think it would be appropriate to have short speeches referring to the nature of the occasion and the significance of it and the nature of the appointment of the person in the way that has been suggested by John Brumby, but at the end of the day really these are matters that have to be left to parliament itself. If we try to legislate now for a form of parliamentary debate which says you can only have two speakers but no more than that, I think we will perhaps get ourselves into a bit of a parody of the situation. I suggest that we leave out those words and leave it to the parliament to decide what is the appropriate procedure and format to deal with this kind of event.

The clear intention that I hope would be conveyed is that we do not want an exhaustive character analysis of candidates for high office of the kind that is par for the course in the United States. That was the intention of the movers of the motion in the original terms. But since it is capable of being misunderstood and since it is, in any event, essentially a matter that is going to be resolved by the Commonwealth parliament and not by us, I suggest that we accept the amendment and leave it for the good sense of the parliament to prevail.

Mr RUXTON - I do not want to sound professional, but I move:

That the motion be put.

Motion carried.

CHAIRMAN - I put the question that the amendment moved by Ms Julie Bishop, bearing in mind the foreshadowed amendment by Mr Brumby, which deletes the phrase `which shall be done without debate' be agreed to. In other words, we delete the phrase `which shall be done without debate'. Those in favour of the motion, being the motion moved by Ms Bishop, please raise your hand. Those against? Those in favour were 75; those against, eight. I declare the motion carried.

Amendment carried.

CHAIRMAN - We have a foreshadowed amendment by Mr John Brumby. Now that the words are deleted, I do not think it is relevant, so that amendment goes. We then have the foreshadowed amendment by Councillor Tully, which is a fairly radical one. I suggest that we might put your amendment next.

Councillor TULLY - Chairman and delegates, this proposal is to break a deadlock between the direct election and -

Mr HAYDEN - Mr Chairman, I rise on a point of order. I am sorry, Councillor Tully, but I just want this clarified and we should know before we go into this discussion. You talk about provision for the election of a president by the people and that that provision should be included as a result of your amendment. But what sort of provision are you talking about? That should be in the body of this amendment. Are you talking, as I was talking this morning, of a nationwide entitlement to vote, a nationwide entitlement for people to select themselves? Or are you talking about the more restrictive filtering model for selecting candidates?

CHAIRMAN - I will ask Councillor Tully to expose the detail, and your time starts now.

Mr HAYDEN - The point is it should be in the amendment; we don't want any confusion later.

CHAIRMAN - I will ask Councillor Tully to move his amendment and he can pick up Mr Hayden's concern at the same time.

Councillor TULLY - I move:

Omit paragraph B and substitute the following paragraph:

"The President shall be elected directly by the people of Australia except where a joint sitting of both Houses of the Commonwealth Parliament elects the President by a majority of at least three-quarters

I indicate that this is a proposal to break the deadlock between the direct election method and the parliamentary appointment methods. Since Federation in 1901, there have been 42 elections and on only four occasions has any government commanded a combined two-thirds majority in the House of Representatives and the Senate. I should point out that no government has ever on any occasion had a three-quarters majority.

Apart from the philosophical differences, the parliamentary appointment method of selecting a president has one fundamental flaw which has not been addressed: there is no provision for resolving a deadlock if the two-thirds majority of the joint sitting fails to agree on the appointment of a president. In that situation, you could have the House of Representatives sitting for three years and the senior governor in Australia could be the acting president for that entire time. This proposal, which marries in one way the two competing concepts, would ensure that there will be a result.

The proposal has the following key elements. It expresses the supremacy of the people in the presidential election process. It provides for election by the parliament if there is a three-quarters overwhelming parliamentary support for a presidential nominee. The parliament in effect in that situation would act as an electoral college. More importantly, it does provide a mechanism for breaking any parliamentary deadlock. This is not provided for in the current ARM model. It gives the direct election delegates a real option of supporting an amended bipartisan appointment model, instead of abstaining or voting for the status quo at the final crucial voting stages.

Given that a significant number of direct election delegates will eventually be forced to abstain or support the status quo, it will provide a mechanism for other direct election delegates to support a genuine compromise model, making it much more likely that there will be a positive outcome to this Constitutional Convention. It will significantly reduce the likelihood of many direct election republicans campaigning against a subsequent referendum.

My fear is that this Convention is inching towards a mickey mouse republic, where the politicians and not the people of Australia select the president. There are real republican supporters around Australia who will be campaigning at a referendum against an unamended ARM proposal. True republicans will not cop a situation where the power is vested in the politicians in Canberra. I might predict as well that there will be a plethora of Senate candidates around Australia who will be campaigning on a direct presidential election model, which puts into serious question any situation if John Howard -

Mr TURNBULL - Will you be resigning?

Councillor TULLY - No, I am a member of the Labor Party. I will not be resigning for that purpose, but plenty of others will be nominating, Malcolm. I make the point that, with a 7.6 or so per cent quota for the Senate on a double dissolution - and I see my friend Phil Cleary laughing about that; he may well be the one in Victoria - there is a real prospect that direct presidential election candidates will hold the balance of power in the Senate. I am calling on all fair-minded delegates to support this amendment. I would say, particularly to the people on my left who voted with honour today for the status quo, that this is an amendment which is a genuine compromise between both sides to ensure we can get a positive outcome to this Convention.

CHAIRMAN - Do you wish to specifically respond to Mr Hayden's question before you resume your seat?

Councillor TULLY - The intention of the amendment is that there would be a direct presidential -

Mr HAYDEN - The amendment I have is quite different from that one there. I understand the point that Councillor Tully is making now.

Ms MOORE - I actually second the amendment. Can I speak to the motion, please?

CHAIRMAN - Let me see if there is anybody against it, because we have 10 seconders in this rather unusual circumstance. Is there a speaker against that amendment?

Mr FITZGERALD - I think this is a ridiculous amendment. I do not like speaking against my colleague who comes from the same area as I do. However, I have to on this occasion, Paul. This Convention has certainly supported the proposition for the vote to go to the Australian people on a certain republican model and it is nowhere near this one here. The resolution as standing at present requires the Leader of the Opposition to second the motion. If you have the Prime Minister who presumably has half the lower house and the Leader of the Opposition who presumably has a fair percentage of the other locked in behind him, I think we are just playing around with tactics. Real politics would be played then once this became an option.

Ms MOORE - I would like to preface my comments by saying that I am actually from a party whose policy at present is not for direct election, so I am not doing this to try to get a directly elected president in the back door.

There have been a number of comments during the Convention about hybrids, some of them disparaging. I think hybrids at this stage is what it is all about if we are to reach a compromise. It would be arrogant in the extreme to assume that in a process like this only pure models have any validity because pure models exclude input and do not allow consultation.

This morning I abstained from voting for the bipartisan model for two reasons. One of those reasons is that I am strongly opposed to the heavy-handed tactics that have been used during this Convention. The other reason is that I believe that this model in its present form, especially now that we have had the Tannock amendment earlier, does not go far enough to involve the community. I do not hold with Malcolm Turnbull's view that the people have elected the parliament and therefore the parliament represents the people. The fact is that our parliament does not represent the people and never will until we see proportional representation in both houses and, perhaps as a result of the introduction of PR, until we see parliament made up of at least 50 per cent women.

I have argued from the start that I believe this process to be flawed, that it is not up to us to arrive at one model, particularly as there is so much diversity here, in 10 days. But if this turns out to be the only option open to us then I want to be part of the process to make sure that we achieve the best outcome. I should also mention that the beauty of the 75 per cent requirement is that it would ensure that parliament would need to be truly committed to cooperating and the likelihood of its appointing a politician would be greatly reduced.

If it is accepted I believe this will make the model palatable not only to more people in this chamber who were very sold on the idea of direct election but also to people in the community who will ultimately have to vote for it at referendum. I therefore second the motion and commend it for your consideration.

Mr HAYDEN - I oppose this for just plain practical reasons. This recommendation is if the parliament by a three-quarter majority cannot confirm the sole nomination by the Prime Minister as president then the public elect the president. But what is the slate that candidates are going to use? Is it only the one name on which there is a deadlock in the parliament or is there some other procedure? If there is only the one name, it scarcely seems to me to be a meaningful election at all. It would be terrible if the public decided they had had jack of all this procedure and they would not vote for the person either or is there some other sort of formula in mind?

Unless I misunderstood arrangements, but I am looking here at Mr Turnbull's proposal - and I might say that he has put a great deal of energy into it; and I am one of those who happen to think we probably would not be in here at this time if it had not been for the diligent and unflagging efforts of Mr Turnbull to move this country towards a republic. I oppose what he is trying to do but I respect the energy and integrity with which he has done it.

DELEGATES - Hear, hear!

Mr HAYDEN - I am pleased others agree with that. Perhaps Councillor Tully could straighten that out for me?

CHAIRMAN - Are you for, Mr Gunter?

Mr GUNTER - I speak in favour of this amendment, Mr Chairman, in part because the need for a three-quarter majority is quite evident from having a look at the table of parliamentary representation in the joint sitting since Federation. Delegates may remember that Mike Elliott and I earlier in the Convention attempted to move an amendment to entrench proportional representation for Senate elections as has applied since 1949 so that a two-thirds majority would be a bipartisan majority.

However, if you go back to the pre-1949 situation, two-thirds majorities were achieved by one side of politics alone on at least six occasions in those elections, yet a three-quarter majority was not. For example, at the high watermark of Labor's representation in 1946, there was a clear 68 per cent majority and no bipartisanship would have occurred under those circumstances. I do not think that even under this model it would be appropriate for the president to be appointed by parliament. You already know my reservations about parliamentary appointment in any case.

As to Mr Hayden's comment about the slate of candidates for presidential election in the event of no appointment of the president by parliament, those are matters that can be fleshed out in due course and should be done in perhaps the way that Mr Hayden indicated in his model, if he were so desirous.

Mr WRAN - I must say that I am quite shocked that Councillor Tully, who has argued the case for direct election with such passion hitherto, has seen fit to move this amendment which is a real Clayton's effort in relation to a direct election. The whole purpose of having an election by the parliament, as has been stated over and over again in this chamber in the last eight or nine days, is to get bipartisan support. The prospect of a name going forward in the federal parliament where both houses are sitting and of that name being rejected is very remote indeed.

All this amendment does is give the public the impression that they are going to have a chance to participate in a direct vote whereas in fact they have absolutely next to no chance under this procedure of ever engaging in a direct election at all. So I think this is a phoney effort merely to get a headline. It has nothing to do with the merit, and it does not serve Councillor Tully's standing well at all.

Councillor TULLY - I will make this point of order and I will make it seriously. Until today, there has been no genuine endeavour to get the two groups together. This does provide a genuine compromise between the two groups.

Mr WRAN - The other thing I would like to say is this: Councillor Tully in his remarks pointed out that, if this amendment was not adopted, his group - whatever that is - will abstain or vote for the monarchy. You have your conscience and I have mine. We will not succumb to any threat about how you will vote because I am confident that the majority of delegates here will vote for an Australian as their head of state.

CHAIRMAN - The question is that the amendment moved by Councillor Tully be agreed to.

Amendment lost.

Dr CLEM JONES - As this will probably be my last contribution to the debate in this chamber, I would like to take a moment to congratulate delegates on the high quality of debate and some magnificent addresses. They have made me feel very humble indeed. Also, Mr Chairman, may I take the opportunity of expressing my appreciation to you and to the Deputy Chairman. I believe you have a difficult task and you have done it extremely well.

DELEGATES - Hear, hear!

Dr CLEM JONES - I move:

In the light of the fact that the bi-partisan model did not receive 50 per cent of the vote and their clearly expressed and published undertaking to take notice of the wish of the people in preparing their final model, including particularly provision for the election of a President by the people, was not fulfilled, the model should include that provision.

Let me refer for a moment to the fact that the direct election model group went a long way in endeavouring to achieve compromise in the republican camps, but one thing we could not be compromised on was our integrity. Our promise to those who elected us, and that made by others, was clear and unequivocal. We could not forsake our promise but - and this is the second reason why I moved this motion - others gave the same undertaking, namely that they would support direct election if it were seen to be the wish of the people. This undertaking has, in the last eight days in this chamber, been totally denied by them.

They talked about compromise, but compromised only on things they did not promise, and totally failed to fulfil the promise they did make. I remind delegates that during the campaign that promise was made loud and clear. In public forums and through the media the ARM, while supporting presidential nomination by parliament, said if the people showed the wish to have the president elected by the people, as they have done over the last two weeks, their wish would be given regard.

I recall a television debate in which Sir James Killen, Sallyanne Atkinson and I participated. Sallyanne is a very eloquent speaker and she eloquently emphasised that the ARM would give a clear undertaking that they will look at, consider and act in accordance with the wishes of the people. Sallyanne is a highly respected person in Queensland and every person who saw that debate would have completely believed that they were going to get a president elected by the people. It was quite clear that, if that is what the people showed they wanted, that is what they would get. They showed what they wanted, but they have not got it. I believe that the result in Queensland was based on the fact that the voters believed that that was what was going to happen. They were listening to high-profile people and respecting them as such.

The other thing is that it has been said that there was no proper model put before this chamber and, in fact, that what we have today is only a list of proposals. I want to make it quite clear to this chamber - probably delegates have forgotten - that before the Convention commenced we submitted, in accordance with the requirements of the secretariat, a full and total model which dealt with every clause that was needed to express the sort of republic that we believe we need. It is all in there, every bit of it.

Unfortunately, with the way things went and our desire to cooperate with our fellow republicans, we did not put this on the table for voting. I would like, if I may, to table it again. It was slightly amended during the debate and now has been re-amended to go back to our original principles with a few amendments, which in fact came from this chamber.

CHAIRMAN - We will incorporate that into the proceedings of the Convention.

Dr CLEM JONES - Finally, no matter what has happened in this chamber and no matter what people say, we must all stay with the principles with which we live. We will not, I will not, and my colleagues from Queensland will not support any moves wherever for a republic which is a pseudo-republic and a president who is a puppet president.

Ms HEWITT - On a point of clarification, I do not understand this. It says:

In the light of the fact that the bi-partisan model did not receive 50 per cent of the vote and their clearly expressed and published undertaking . . . 

Who does he mean by `their'? The ARM?

CHAIRMAN - I think he means the participants to the bipartisan model. It is the people who propose the bipartisan model. He might have meant the ARM. Mr Jones, you meant the ARM, didn't you?

Dr CLEM JONES - Yes.

CHAIRMAN - Mr Beattie, are you for or against the motion.

Mr BEATTIE - I am for the motion.

CHAIRMAN - Is there a speaker against the motion?

Mr SUTHERLAND - I formally oppose it.

Mr BEATTIE - I know, as every delegate in this room knows, that this motion that Clem has moved is not going to succeed, but I want to use this opportunity to say a couple of things. Clem is 80 years-of-age. He has come here with a commitment and a determination to put a model before this Convention.

His team, the Clem Jones team, ran in Queensland. It won the majority support of those people who supported a republic. He went out and ran on a direct election team. He had the courage and decency to go out and consult and listen to people. He came here with the determination to put up his model and he has done just that. Everyone in this room should have the courtesy to respect the courage with which he has done that. Clem, I for one say, `Well done!'

CHAIRMAN - I am sure the whole Convention endorses those comments. It is a remarkable effort by somebody of the age of about 40, let alone somebody at your age, Clem. Congratulations! The question is that the amendment be agreed to.

Motion lost.

CHAIRMAN - I put the question that item B, as amended, be agreed to.

Mr CLEARY - Can you clarify what is being put?

CHAIRMAN - The amendment moved by Mr Clem Jones having been defeated, we are now considering item B, Appointment or Election Procedure, on the bipartisan appointment model. It was amended. Therefore, I put the question that item B, as amended, be agreed to.

Motion carried.

C. Dismissal Procedure

Professor WINTERTON - I move:

Delete clause C and substitute:

(a) The President may be dismissed by an absolute majority of the House of Representatives on the ground of behaviour inconsistent with the office. This shall not be justiciable.

(b) Provision should be made for the House to be convened to enable the House to consider the issue and not dissolved or prorogued to prevent it.

(c) The Prime Minister may suspend the President for 14 days to enable the House to consider the issue within that time. The Acting President provisions shall apply during the period of suspension.

I endorse entirely the spirit of the original resolution. I see this amendment as simply smoothing out some of the rough edges. The basic proposal in the original motion was that the ultimate removal of the president should be by the House of Representatives but that there should be an initial period whereby the Prime Minister could basically suspend the president pending endorsement by the House. But this had two strange consequences: first, even if the House disagreed with the Prime Minister, the president was nevertheless basically sacked and was allowed simply to be reappointed; and, secondly, that the vote of the House would count as a vote of confidence, which would mean that the individual members of the House would vote according to party discipline.

This amendment has three elements to it. The first one simply provides that removal of the president should be by an absolute majority of the House of Representatives. But it also states, pursuant to the idea of the dignity of the President, that it should be `on the ground of behaviour inconsistent with the office' and, in order to keep these issues out of the courts, it provides expressly that this issue is non-justiciable. So the first provision is basically removal by the House of Representatives. The second provision is that the House remain in existence or to be called together to deal with the issue. The third provision takes up the spirit of the original motion, but I see it as smoothing the rough edges by providing for a shorter period - 14 days - of suspension to enable the House to consider the issue and the interim presidency provisions apply in the meantime.

Perhaps I could say one or two things. One of the disadvantages of the original motion is that it is incompatible with the dignity of the president to be sacked by the Prime Minister. The president is appointed by the people indirectly - we have emphasised that - through the two-thirds vote and should be removed with the authority of the people, through indirect vote, through the House of Representatives. The original motion can lead to what I called earlier, and others have called too, a game of constitutional chicken whereby the president and the Prime Minister race to dismiss each other.

If you look at the original motion, you can envisage a situation whereby the Prime Minister is summoned into the president's office; the president summons Sir David Smith, or his equivalent, and says, `Now make sure we don't have any paper or pencil because the Prime Minister can immediately give written notice that I am out of office. Keep pencil and paper out of reach.' It certainly discourages what we should be encouraging. We should be encouraging presidents to give the Prime Minister notice. One of the principal criticisms of Sir John Kerr was that he did not give Prime Minister Whitlam adequate notice. This sort of proposal where there is immediate dismissal is a severe disincentive to giving the Prime Minister adequate notice. I have basically dealt with the principal issues.

Sir DAVID SMITH - Could Professor Winterton tell us whether this presidential sin-bin would be in the grounds of Yarralumla or out in Dunrossil Drive? Fourteen days suspension for a head of state! Talk about dignity!

CHAIRMAN - We will take that on board.

Mr GARETH EVANS - I speak against the amendment and in favour of the original dismissal procedure in paragraph C. For all practical purposes now the Prime Minister can, effectively, instantly dismiss the head of state's representative, the Governor-General. The process involves reference to the Queen but, basically, it is on the advice of the Prime Minister. The sanction against misuse of that power at the moment is essentially political. It has never been done in our history, but if it were to be done cavalierly or without good cause or able to be publicly and politically articulated, the political response would be pretty swift and savage from the Australian community.

What our particular proposal in paragraph C on dismissal procedure does, in fact, is just bring that political consequence more rapidly to fruition, in the sense that the Prime Minister, having made the decision to sack the Governor-General for whatever reason, immediately has to in effect face the House of Representatives and survive what is in effect a motion of confidence in the House of Representatives. If the Prime Minister of the day has acted without the support of his own party or in a way that is so manifestly unconscionable that he cannot win the support of the House of Representatives, he will suffer a very swift political fate indeed. If there is a party vote sustaining him in this situation, which is nonetheless perceived by the wider population as indefensible behaviour, the retribution may be a little longer delayed, politically, but it nonetheless will be sure. I think, under those circumstances, there is absolute clarity in the way that the particular proposal is put to you at the moment. The no-confidence dimension of it simply is a way of expressing the political dimension of it and the political sanction that is meant to work if the dismissal power is cavalierly applied.

The present paragraph C has the virtue of great simplicity and directness. The dismissal is accomplished by the Prime Minister directly, without any uncertainty associated with suspension periods and swearing in and the possibility of ambiguity or uncertainty as to what is going on during that suspension period and who actually has the power. The dismissal is complete and clear.

The motion of George Winterton would introduce some new concepts which would generate a whole new area of uncertainty. What is involved in `misbehaviour'? Misbehaviour assessed by whom? It is not to be justiciable so it is to be a matter simply for the judgment of the Prime Minister of the day. But what do we mean by misbehaviour? Is it personal misbehaviour, constitutional misbehaviour, political misbehaviour or what? The point about keeping it clean and simple is to say - and this is really the point that Dick McGarvie was originally making - it is a democratic sanction that continues to exist in a system of the kind that we are introducing by the government of the day. So, there is uncertainty about that. There would be uncertainty about the timing issue were you to introduce the suspension provision and not enable the dismissal to be accomplished immediately. I think for those reasons and others as well, but it is getting late and I will not bore you with them, the proposal as we originally put it to you - quick, clean, succinct, easily understandable, politically very effective, constitutionally quite precise, legally precise, in its implications - is the way to go. I urge you to reject the amendment.

Senator STOTT DESPOJA - I reiterate the concerns that I expressed this morning, not only about a process that essentially relies on the whim, if you like, of the Prime Minister - albeit with ratification by the House of Representatives - but also that the proposal, as it stands now with the dismissal provisions, involves a denial of natural justice. That is, if the Prime Minister sacks or makes the head of state stand aside, and can do so through written notice, then awaits ratification by the House of Representatives and that ratification is not forthcoming, the president, that head of state, is still not restored to office. They are then eligible for re-appointment, but I do believe that in this process you are denying natural justice in the case of the president.

Senator HILL - Very briefly, Mr Chairman, I strongly oppose this amendment. What it does, in effect, is reduce the power of the Prime Minister vis-a-vis the head of state as to what exists at present. One message that has very clearly come through this Convention is the desire for ongoing stability within the structure of our constitutional system. A key part of that is to maintain the power of the elected Prime Minister, albeit the indirectly elected Prime Minister, as opposed to the head of state. I think that if we come out of this Convention having reduced that power, as opposed to the head of state, that will not be something that will be applauded by the Australian people. I therefore urge that this motion be defeated.

Professor WINTERTON - I have three points. As Gareth knows, the parliament would be the body to judge misbehaviour. Even though it is vague, it would have to be parliament because it is non-justiciable. But it is certainly better than his proposal where there is absolutely no ground at all.

Secondly, the great weakness of the original motion here, as of the McGarvie model, is that people simply are unwilling to contemplate presidential misbehaviour in respect of the exercise of a reserve power. If the president goes mad, exercises reserve powers wrongly and sacks the Prime Minister, there is absolutely no recourse on this model or on the McGarvie model, because the new Prime Minister will not move a motion of dismissal in the House. You have to leave it in the parliament. You cannot tie it to the Prime Minister because the president could have changed the Prime Minister. It is simply a fundamental point that both the McGarvie model and this proposal do not address.

Finally, I am not personally mad on the suspension idea. That was put in to embrace the spirit of the original motion. I saw this motion as basically, in the spirit of it, trying to smooth out the rough edges.

CHAIRMAN - The question is that the amendment be agreed to.

Motion lost.

Next Page

Previous Page