Transcript of Proceedings - 05/02/98 HTML Page 10

TRANSCRIPT OF PROCEEDINGS
Thursday, 5 February 1998
Page 10

Mr KILGARIFF- Mr Chairman, fellow delegates, it is always going to be a hard act to follow when you follow Michael Hodgman. I wish to make it quite clear that I have come to this Convention with one overriding principle, that is, to achieve a republic in Australia. I stood under the banner of a Territory republican, viewing the Constitutional Convention as the means to move Australia towards a republic with minimal change to the Constitution. However, I remain open to reasoned argument on all alternative models, which is, after all, what this Convention should be about.

My objectives and views throughout the debate surrounding the republic, and indeed during the lead-up to the Convention, were to achieve a republic and to make compromise where necessary and essential. `Compromise', delegates, was the key word of the conventions of the 1890s and it is a lesson that we here today should heed.

I came to this Convention with the clear view that I favour a republic with a president appointed by a two-thirds majority of a joint sitting of both houses. However, given that this is the people's Convention, we cannot ignore the polls, which indicate that a majority of Australians want a directly elected president. At this stage, I remain unconvinced that that model would serve Australia well, but I remain open to argument.

As Thomas Jefferson, one of the founding fathers of another republic, once said, `The Catholic principle of republicanism is that every people may establish what form of government they please and change it as they please, the will of the nation being the only thing essential.' I am absolutely certain that the majority of Australians do want a directly elected president but, like myself, are open to debate and suggestions on alternatives. So at this stage of the debate I am of the view that Australia should move to a republic by or in the year 2001 and that our head of state should be appointed by a two-thirds majority of both houses in a joint sitting and dismissed by a simple majority in the House of Representatives on recommendation by the Prime Minister. Our head of state should be referred to as the president. Finally, the reserve powers and conventions of the president should not be codified beyond a simple amendment, and the president should act on the advice of the Prime Minister or executive council in the exercise of all but his or her reserve powers. This is essentially what has been labelled as the minimalist model. Most points in that model are contingent on each other.

I should also declare my position in the event that delegates do decide to support a directly elected president. In the event that this Convention takes that path, I will be supporting wider changes to the Constitution. For example, I cannot foresee a situation where a directly elected president could operate within the existing system of uncodified conventions and reserve powers. A directly elected president would so fundamentally change our system of government that we would really need to examine every aspect of our system. Fellow delegates, if we decide to pursue the direct election of the president, I will be urging full codification of the powers as well as examining the status and powers of the Senate, especially in connection with money bills and blocking supply.

When it comes to the event of a dismissal, in addition to what I said before, I also believe that there are merits in the McGarvie model. It is possible that we may even be able to combine a dismissal by the McGarvie model with a House of Representatives simple majority.

With both models, the ultimate check and balance on the actions of both the Prime Minister and the president- that is under the two models I have talked about today- is that it is exercised by the people at the ballot box. As indicated previously, in a system of an appointed president, the reserve powers and conventions of the president should not be codified beyond a simple amendment. The president acts on the advice of the Prime Minister or executive council in the exercise of all but his or her reserve powers. Under a direct election, the equation should and will change.

It is now a fact that a majority of Australians do endorse the move to a republic and are waiting on their republican delegates at this Convention to deliver a workable model. The challenge has been issued by many delegates over the past few days, and I would urge all who really want to walk out of here with a clear recommendation for a republic that some compromise needs to be achieved. The most important issue for those of us who were elected on a republican platform is that we achieve a republic. Ultimately I say this to all delegates at this Convention: at the end of the day let the people decide.

Ms BISHOP- Yesterday I asked delegates to try the McGarvie model on for size. Many are. I hope to address the misconceptions that still exist in relation to it. Further, Professor Craven introduced the option of a hybrid- appointment by two-thirds majority and dismissal by McGarvie. I wish to address features that I hope have relevance to both. There is inordinate attention on the symbolism of the Constitutional Council aspect of the McGarvie model. It seems a necessary feature to me as a safeguard, a check, a balance; one the reassuring aspects of our current system. The focus should be on the head of state under this model, an Australian nominated by the leader of the elected government, under McGarvie.

I do not accept as justifiable the fear that has been expressed about this form of nomination. People have said they want the direct say in the election of a head of state. They have a direct say in who represents them in the federal parliament. Our system of representative democracy does work. Governments do come and go at the will of the people. Under our system, we entrust our representatives to be part of the process of government, to debate and act upon legislation that affects our lives, to be part of the running of the country whether in government or in opposition. We have a free press, a press that reports comprehensively across the country on what our elected representatives are doing or not doing for us. The system is open. There is transparency, there is accountability. The people have their say, first, by electing candidates and by having those elected represent them in parliament.

I do not denigrate politicians- they are all Australian people elected by us. So, having elected them to the business of running the country, I believe we should have faith in a process whereby a nomination for head of state comes from the leader of the elected government accountable to the people. It happens now and, if your option is for a directly elected president, you must be admiring of a system where a policeman off the beat, as Mr Hayden described himself on television last night, could become, albeit with intervening years, the Governor-General, the effective head of state under our current system. There is no reason to assume that a Prime Minister or other elected representatives would do other than continue to nominate people who would carry out the role of head of state with dignity and with an appreciation of the duties and functions bestowed upon them. A Prime Minister with a finger on the pulse of public opinion, accountable to the people, will consider for nomination a person who will have the admiration and respect of the Australian people.

Perhaps people's concern about the symbolism of the McGarvie model rests with the existence of and composition of the Constitutional Council, whether it be part of the appointment or dismissal process or both. It has been said that the council is too narrow a range of people to be involved, that it could be seen as elitist and self-perpetuating and that it ignores states, women and ethnic groups. I think those perceptions very much overstate the role of the council and overlook who would actually be on that council and how often they would be called upon. It is not another tier of government. The council of three would be called upon presumably every five years when the Prime Minister nominates a head of state for the next term. The council is not directly elected by anyone. It is removed from cronyism, favours or politics because it is comprised of former Governors-General and state governors. They do not choose or select; they appoint on advice.

So it is a group of three former Governors-General or state governors called upon once every five years to formally appoint a head of state. There are three. That is reassuring in itself. I think it churlish to suggest that they have nothing to add to the process. They have served us. They have demonstrated their ability to give dignity and status to their office. When anyone is poised to take over a role, take over a job, there is wisdom in listening to those who have been there before, and I for one have great admiration to people who have in the main given much of themselves to serve our people as head of state or as a state governor. I would value their advice, their counsel, their insight.

The constitutional formula devised by Mr McGarvie creates a pool of people from which the membership of the council derives- former governors-general and state governors are in first. Mr McGarvie's model makes provision for a woman to be assured a place. If we introduced the model tomorrow, the Prime Minister would nominate a head of state and the council would comprise Mr Bill Hayden, Sir Ninian Stephen and Mrs Leneen Forde, the former governor of Queensland- distinguished Australians for sure. The three comprise a diverse group- a woman from one of the smaller states and a former policeman. It is not a legal elite.

Consider the potential members of this council: it would end up comprising a diverse range of Australian people. One only has to reflect on the people who have held the office of governor in the states. Take South Australia- Roma Mitchell, Pastor Doug Nicholls, Mark Oliphant and currently Eric Neal- people from different backgrounds, states, experiences and qualifications; people who have given much already in serving our people. The governors I have witnessed at close hand are not elitist. They are people to be admired, dignified in office and respectful of Australia and its people.

Mr McGarvie added to his potential pool High Court and Federal Court judges. (Extension of time granted) I understand the criticism of having a High Court or Federal Court judge, albeit retired, available for the council- the separation of powers must not only exist, it must be seen to exist. That may need refinement. I have faith in our century-old system where the head of state is appointed by the process of representative democracy at work. I have faith in the process whereby the people elect the government. I have faith in the people who are conscripted to serving the Australian people as governors-general or state governors, which is why, if there must be change, the McGarvie model or a hybrid of it is compelling. I have faith in our people and in our system of representative democracy. Thank you.

Reverend TIM COSTELLO- For those initiated into the code language of this Convention, I can only support A if it is a ceremonial head and, therefore, there is full codification. I had hoped that, with 10 days and $50 million, we might at least have had an attempt at that. We will wait and see. Otherwise I am supporting and open to being persuaded on the models B, C and F for the following reasons. In a republic, open nominations and direct election of the head of state should be the philosophical starting point. It may not be the final destination of a republican model but it is the foundational principle, as Bill Hayden and even other monarchists are now saying.

You see, a real republic is made up of citizens who are equals, who confess that self-government and direct ownership of their political system is their highest ideal. A true republic nourishes active citizenship and it does so by trying to find as many political entry points for civic expression, for participation in self-rule, as possible. In principle, therefore, open nominations and a simple direct say in the head of state offers those sorts of opportunities. However, that is direct democracy, the sort that functioned in ancient Greek city-states and even until recently in Appenzell in Switzerland. Everybody is involved and informed, which is not our reality. Our reality, with a large number of people, is, necessarily, complex. To accommodate that reality we have moved to representative democracy. However, for reasons I gave in a speech the other day, representative democracy is in trouble, at least in terms of record levels of public cynicism towards the representatives who are carrying that representative democracy.

Furthermore, I do not think that in our country the equality of wealth situation permits candidates to simply stand and be directly elected. If it were a purely ceremonial role it would not perhaps worry me so much but without codification it is going to have real powers, it seems. This worries me greatly.

Thomas Jefferson, the father of the US republic- the oldest surviving republic- did not just envisage equal citizens, he also argued that a republic could only be founded on truly political equality if there was economic equality. His vision was that the citizens of America would be self-sufficient farmers, independent and therefore able to fulfil their civic duties without economic necessity buying them off in a political sense. He also envisaged that the Constitution be changed every 30 years because it should serve the living and not the dead.

Direct elections, with the amount of advertising dollars that can literally buy an election, would make this probably a dangerous proposition here. In order to fulfil republican criteria of equality of participation, I strangely would argue for a filtering process, whether it is an electoral college or some way of filtering those nominations, in order that there be real equality and participation. I have mentioned the models that I am open to and I am favouring at the moment, and those models will receive much discussion.

In the couple of minutes remaining let me say that I think all of us want as our ideal a head of state in a republic who is not only one of us but also represents the best of us, in fair mindedness, in tolerance, in inclusion, particularly when that person goes overseas and speaks for us.

I am worried about direct election models even with a threshold of one per cent of the population being able to nominate in so far as they will give platforms to Pauline Hansons, shooters and a whole range of people who can get a one per cent threshold and run a national election campaign. For these reasons, I personally believe that trying to find an entry point of nominations from the public with some say, with parliament at some level ratifying that with a two-thirds majority so that representative democracy is sheeted home, is the way we must be turning our minds and trying to come up with a model.

Let me finish by saying that the strength of the McGarvie model- and I think all delegates owe a great indebtedness to him for this- is that his prescience of mind has pointed out that the dismissal possibilities are ones that we must think out. We do need a mechanism for a rogue head of state or an Alzheimer problem or a range of other problems. But let us not overstate it. There have not been many times that we have had to remove a head of state- maybe because of the threat of dismissal by a Prime Minister, as McGarvie argues, maybe not. But it can be addressed in B, C and F models with a simple dismissal on a majority.

Finally, those who say that there should be no populist say in this because it will set up a power conflict with the Prime Minister need to remember that this is in the system inherently, even with the status quo. Some would argue that is exactly what happened with Sir John Kerr. Some I know on the Liberal side would argue this may be happening with our present Governor-General. I do not agree with that.

DEPUTY CHAIRMAN- The next speaker is Misha Schubert.

Ms SCHUBERT- I must thank Michael Hodgman for his generational path clearing. I rise to speak not only as a member of a younger generation but also as someone with the youthful possibilities of what we might create in our future constitutional system. The Australian people will not be patronised. Time and again we have told the pollsters that we want a direct say in the selection of our head of state. Time and again those with something to lose from the current arrangement of power have made excuses.

There is a pernicious elitism in the position of anointment and appointment republicans. Their rhetoric urges Australians to reject the paternalism of a hereditary monarch in favour of self-empowered destiny, and yet their alternative resists any active role for a democratically engaged community.

The ARM says that people do not want a politician as their head of state. This is not strictly true. The people want someone outside the parliament to act as an alternative site of commentary and leadership. The analysis is sophisticated. The gentle tension between parliament and the head of state facilitates debate, forces explanation and enhances public scrutiny. This is a strong and positive step for our democracy rather than its undoing.

The ARM says that popular election will be expensive. Well, democracy ain't cheap. If the public determines that public funds should be spent on the exercise of their citizenship, then public will should prevail. Whose money is it anyway? The ARM says that eminent candidates will not stand for public office. If eminence wants an audience, it had better get itself a profile.

Let us end once and for all the furphy that ordinary Australians know and love their governors-general. Most Australians cannot tell you who they are. Whilst anonymity might be modest, it is a squandered opportunity for leadership and moral courage. I want a head of state who can articulate their views to a wide audience of Australians, not just to those who attend ribbon-cutting ceremonies. I want a head of state who can communicate with younger audiences in their preferred media of television and the Internet. I want a head of state who is capable of building a profile for the office so it can be valued by all.

This debate is essentially a test of our faith in the public to select their own figurehead. Richard McGarvie denounces unnecessary elections. I wonder how you can conceive of democracy without succumbing to that outrageous indulgence of public consultation. That is the trouble with democracy: it is cumbersome. But it is essential. Privilege begets itself. Let us be very clear about the self-titled McGarvie model: it is not a republican model; it is a lawyer's monarchy.

We are all creatures of environment and upbringing. Former judges and governors are no exception. Most have lived lives of comparative privilege and their value systems would enshrine more of the same. Similarly, parliamentary appointment has many defects. It is remote. The lack of public involvement in the selection of a figurehead is an active disincentive to ownership- second-hand democracy at the parliamentary op-shop.

It lacks transparency. Decision making behind closed doors is a recipe for scepticism. The anti-authoritarian ethic of Australians is well founded. We do need to question decisions made without reference to a public audience. That is the foundation principle behind the parliamentary question time- flawed though that process may be.

It lacks vision. Popular election provides a forum for Australians to debate the qualities of the office as well as the candidates. Parliamentary appointment, by stark contrast, curtails the civic conversation. Resolution F may not be the final model for a popular election, but it shows that a model of popular election is possible.

A nominations panel appointed by parliament opens nominations to the public. They work through applications to short-list a manageable number and then put them to popular vote. Strict limits on campaign expenditure, coupled with a measure of public subsidy, would ensure a fair and balanced campaign. Also worthy of consideration is the hybrid model promoted by Ron Castan QC. A combination of parliamentary and public selection, it represents a spirit of constructive compromise in the interests of agreement. Let the parliament nominate their candidate. Let others come from further afield. But let the people have the final word.

The ARM clamour for more detail on a direct election model. There has been significant, detailed work undertaken on both Clem Jones's and Ron Castan's proposals. Now we need to find agreement across the political spectrum to arrive at a model that the people will support at referendum. I say get the principle agreed first and the detail will follow.

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