ADDRESS TO THE

CONSTITUTIONAL CONVENTION

OLD PARLIAMENT HOUSE

TUESDAY, 3 FEBRUARY 1998

When delegates met at the Constitutional Conventions of the 1890s their business was very different to that we are dealing with today. The business of the Conventions of the 1890s was to federate colonies into a Commonwealth. Principally their discussions revolved around the various powers to be given to the different levels of government.

The delegates were concerned with federating Crown colonies and, as the preamble to the covering statute records, they agreed “to unite in one indissoluble federal Commonwealth under the Crown of the United Kingdom, of Great Britain and Ireland”.

The Crown of the United Kingdom, of Great Britain and Ireland was central to the scheme of Federation. Even a cursory reading of the Australian Constitution will demonstrate that. The Crown or the Queen is mentioned in three sections of the covering Act and in 21 sections of the Constitution itself.

It is also clear that the monarchy was intended to be an absentee monarchy. The powers of the Queen were vested in a Governor General who was to reside in the country and exercise here the powers of the monarch.

The Federation of the Australasian colonies and the creation of the Commonwealth of Australia formed a new national government – a new nation. It was a new shoot from an old tree. In time, the new shoot would grow to maturity and stand independently and self sufficiently. It would for all purposes be free and self standing, although unquestionably it had derived from the other.

Some of the delegates to the Convention have argued for a Republic as the last step to independence. Some have spoken of it as a decision to “leave home”. To be frank, I find this line of argument repulsive and, needless to say, quite unconvincing. It has never occurred to me that in my lifetime Australia was not an independent nation. I have never seen any evidence of its independence being compromised by its Constitutional arrangements. I venture to say that all those who have represented Australia internationally have done so on the basis that its sovereignty lies solely in Australia and is understood to do so by its neighbours in the world community. Without question.

I can understand the temptation to try and gild the lily to build a stronger argument but I would not like the public, who will ultimately decide the outcome of our Constitutional arrangements, to vote under any misconception. Australia is an independent nation.

It is also argued by some of the proponents for a Republic that if in reality the nation is completely independent, even perhaps a defacto republic, then the wording of the Constitution should be changed to match the reality. But to be frank, the words and the reality of our Constitution are at variance in so many areas, that if the aim was a matching one – words to reality – we would start on more important places than this.

The Constitution makes no mention of a Cabinet – an obvious feature of our Government. It makes no mention of a first or prime Minister, which is an obvious feature of our government. And the words of Commonwealth jurisdiction in many areas are not appropriate to reality: take for one the External Affairs power.

I mention these examples to illustrate the point that the Constitution must be read and understood in accordance with history and convention. This is the case with all great historic literature. Especially where we are looking for modern meanings in ancient texts.

It is practically impossible to formulate a comprehensive written manual to apply to the myriad of human behaviour. Even more so I believe it practically impossible to write a comprehensive manual to cover circumstances now and circumstances now unthought of, but certain to arise in future decades or centuries.

This is one of the weaknesses of a written Constitution. It is not unique to Australia. It is a problem we share with those other countries that have decided to reduce and enshrine their Constitutions in one written document.

It is sometimes also said that the Constitution is not an inspirational document – not a document which states values or ideals. This may be so but for my own part I do not think this is an especial weakness. I am not convinced that the purpose of a Constitution is to uplift the soul. In my view, the purpose of a Constitution is to set out the basis for responsible and civil government: to allow a society in which language and literature, hopes and aspirations that can uplift, will flourish.

People often claim that the American Constitution performs a function of uplifting its citizens and explaining the nature of American society to them. In fact, its Constitution is quite a dull document. When making this claim, most often, people are referring to the Declaration of Independence, which is quite separate from the US Constitution.

I am also very uncomfortable about an expression of views of how we see our society in a Constitution which is designed to last for decades, if not centuries. These views are inevitably determined by current perspectives. We know the views of today will look dated by omission or commission in the future. In my view a constitution should set the machinery for political debate, not nail itself to political positions.

Our Constitution starts with the historic institution of the monarchy of Great Britain and adapts that office successfully by history and conventions to modern Australia. As adapted and applied it works remarkably well. And yet if there were not a substantial disquiet over the institution, a disquiet which is likely to grow rather than recede, we would not be here. It was this disquiet, recognised by the current Government, which led it in Opposition to pledge to hold this Convention if elected. This Convention is taking place in fulfilment of that election pledge.

It is quite commonly said that all this argument is about is whether we want an Australian as our head of State. If that were all we wanted then one of the options to fix it would be an Australian monarchy. But in truth, the problem is more with the concept of monarchy.

The temper of the times is democratic. We are uncomfortable with an office that appoints people by hereditary. In our society and in our time, we prefer appointment for merit.

The system works very well. But a key concept behind it is bruising against reality.

The only active role now left for the monarch to perform is, upon the advice of the Prime Minister, to appoint the Governor General and, on the advice of the Prime Minister, to dismiss the Governor General. If this function were to be performed by a Council, then there would be no significant change to the current structure of our institutions. A Governor General, by convention an Australian, would be appointed to hold executive power subject to the restraints and conventions of the Westminster system of government. The active function of the Crown would be taken over by an Australian or Australians, appointed on the basis of service or merit. More importantly, there is every reason to believe that conventions that have been established and adopted under the current arrangements would continue.

This is because the office of the Governor General would continue by whatever name. It is logical to think that the exercise of the power of appointment and dismissal would continue under the same conventions.

A proposal along these lines, now known as the McGarvie model, is one that I would support, without hesitation.

I think I know what our system of government would look like under this change in a generation and I believe it would be a natural progression of the past and the present. I would support such a Republican model.

I turn now to the question of whether we should go further.

Under our system of Constitutional monarchy, the Governor General holds executive power in name but exercises it upon the advice of the elected government. In reality, the Governor General has no substantive executive power. Should we appoint a Head of State with substantive executive power – power currently exercised by the Prime Minister or Ministers of the Crown answerable to the Parliament?

Such a system, of course, would not be a Westminster system of government. What additional purpose would it serve?

The only purpose I can think of would be to separate the Legislature and the Executive, that is to increase the checks and balances on the exercise of power in our system.

For my own part, I believe that checks and balances in our system are already extensive. They are certainly more than those that apply to the Westminster system of government in Britain. For a start, our Senate has unlimited powers, including the power to reject the supply of money to Government. Moreover, on current arrangements no government is likely to hold a majority in the Senate, which has the ability to defeat any legislation and to bring down a popularly elected government.

Secondly, Australia is a federal Constitution (unlike Britain) where the States have general powers.

Thirdly, Australia has a judiciary not at all unwilling to strike down government legislation. The High Court is constitutionally entrenched and not accountable to the electoral process.

There is another alternative. This is a President directly elected but with no substantive executive power, along the lines of the Irish model. I think this works quite well in Ireland. It has the capacity to produce a President with a basis for emotional support but without a conflict of powers in relation to the elected government. It does not produce a non-politician. In my view any person who wins a contested election is a politician. The difference in Australia, of course, is a powerful upper House with the power to reject money bills. This means the role of the Governor General can never be solely ceremonial. If the Senate did not possess the powers to reject money bills and if it were impossible for the Senate and House of Representatives to deadlock then an Irish model would be feasible. My assessment is that any Section 128 referendum which sought to strip the Senate of its powers to reject money bills to pave the way for an elected “ceremonial President” would almost certainly face defeat. In the circumstances, those who genuinely wish to resolve the “republican problem” in their lifetime could not see this is as a feasible alternative.

This brings me to the proposal that a President be elected by a two-thirds majority of both Houses of Parliament. As far as I can gather, the argument in favour of this alternative is that the people, through their elected representatives, get a say in the Head of State. This proposal comes with or without add-ons. The latest add-on is that whilst appointment would take a two-thirds majority of both Houses, dismissal would take a simple majority of one. I leave aside the question of why you would want to entrench an appointment without entrenching the dismissal.

It is said that this method of appointment would prevent politicians assuming the office of Head of State. This method of appointment may well have prevented the appointment of a Hayden, a Hasluck, a McKell or a Casey from assuming the office of Governor General yet I do not believe that any of those persons discharged the office dishonourably. In fact, I think, each proved to be a distinguished appointment.

The two-thirds parliamentary majority has always left me cold. It is not a directly elected President deriving legitimacy from the vote of the electorate nor is it directly akin to the current Westminster practice. In effect, a President appointed with a two-thirds majority of both Houses would enjoy a greater mandate than a Prime Minister who needs only a majority of the House of Representatives. My instinct tells me this is a recipe for trouble. It is an attempt at a compromise which would overcome the problems with the institution of the monarchy. But in my opinion it sows the seed for further Constitutional trouble. It would not be the end of this matter. It might be the first Republic but I am not sure it would be the last.

I judge that the disquiet or uncomfortableness on the concept of monarchy to which I have earlier referred will continue to build and we should address this, not allow people to use it to build other agendas. I am much chastened by the Canadian experience. A simple attempt to repatriate the Constitution and institute a Charter of Rights has led to what is now described as “mega Constitutional politics” raising questions of secession, distinct cultural rights, sovereignty to indigenous people and a whole lot of other issues which have been advanced in a climate of general flux and change.

We heard such arguments yesterday, including an attempt to use this Convention to institute a Bill of Rights. It has always amazed me that those that argue a Head of State should be subject to general election and popular recall are quite prepared to confer wide-ranging powers on unelected judges not subject to dismissal or recall and with no accountability to the electors. To my knowledge, nobody is arguing for the election of judges notwithstanding the substantial influence over the lives of citizens that they now exercise – an influence in some respects far in excess of any member of Parliament who is subjected to the electoral process on a three yearly basis.

So I am for change. I would like to see Australia deal with the issue of a Republic, not because of what others think of us but because of what we think of ourselves.

Those that are advocating radical constitutional change are, in my assessment, advocating certain Section 128 defeat. The history of previous Section 128 referenda should give us a realistic focus. The public is very reluctant to change the Constitution and its reluctance grows as the extent of the change grows.

I believe there is an unease at the centre of our Constitutional arrangements, not because they do not work – they work extraordinarily well – but because the symbols which underlie them are running out of believability and this gnaws at legitimacy. I am not for change at any price. But I am someone who believes that in changing we should secure and safeguard what is best: that by directing change we will get a better outcome than by allowing pressure to build up and explode with implications far less benign and that history and convention make such a change feasible and workable constitutional improvement.