Date: 09 August 1999
CONSTITUTION ALTERATION (ESTABLISHMENT OF REPUBLIC) BILL 1999
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Mr ANDREN (Calare)(8.13 p.m.)-This is a truly historic piece of legislation.
The pity is by how much it falls short of the democratic ideals with which
our Constitution was first framed at the end of last century. If this
Constitution Alteration (Establishment of Republic) Bill passes, and no doubt
it will, we are setting the groundwork for a referendum that offers the vast
majority of people no choice at all. It is based on a model that does not
represent public opinion, nor does it represent any expression of majority
will. Polls consistently show that 70 per cent of the electorate want a directly
elected President.
They want a model that makes that possible. This model does not make that possible. Rather than strengthen the separation of powers, this model destroys the separation of powers. It neuters the role of the President and leaves the dominant party of the day in total control of the political processes, while major party support in the electorate continues to erode. There is just no one or nothing to check on executive government in this model. While painted as minimalist, the model is in fact radical. It does change the current system dramatically by embodying the right of instant dismissal of the President by the Prime Minister of the day.
The Prime Minister need pay no attention at all to the President under this political establishment model. If Gough Whitlam could have dismissed Governor-General John Kerr he would have. This model will ensure the PM of the day will be able to take such a course of action. The Prime Minister becomes not only de facto but also essentially the head of state. The President should have the power to call for a general election at a time of constitutional crisis or when a government lacks support. It is interesting to note the publication entitled Discovering democracy distributed recently by the government. How ironic that we are debating this undemocratic model as the government, no doubt with Labor endorsement, peddles information about our wonderful democratic model. On page 45 there are details about how important American founders regarded the separate election of the President. It says: The American founders believed all governments tended to threaten liberty.
It goes on to say how the American constitutional drafters believed that
`power must be dispersed. No one group or individual could then capture all
the centres of power and each power centre would keep the others in check'.
The American founding fathers were right when fearing that the placing of
the executive and legislature together would threaten democracy. According
to our founding fathers, by placing the executive in parliament the ministers
were responsible to parliament and if ever they threatened citizens' rights,
the parliament, elected by the people, would control them. Unfortunately,
the founding fathers did not count on the discipline, the arrogance and the
undemocratic nature of the political party process, with its adversarial
two-sided debate and its one-sided executive dominance, reinforced by the
winner-take-all, illegitimate, mandate argument. It is interesting that Manning
Clark described our very first constitutional convention thus:
It was for the most part the big men of the established political and economic
order, the men of property or their trusted allies who moulded the Federal
Constitution Bill. Not much has changed. That 1890s process can well describe
the setting up of this most recent Constitutional Convention, with one addition:
half the delegates to the 1998 Convention were appointed, to all intents
and purposes, by the government. We did correct the absence of youth, Aborigines
and women, but the appointed delegates succeeded in swinging the Convention
towards the conservative model favoured by the Prime Minister and away from
the people's
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choice. Let us not forget just 73 delegates, less than half the 1998 Convention,
voted yes to the so-called bipartisan appointment model. Bipartisan says
it all. The Oxford Dictionary defines bipartisan as `of or involving two
(esp. political) parties'. We had 73 yes votes, 57 no votes and 22 abstentions.
Despite the model not gaining support of an absolute majority, or 77 of the
delegates, the question was declared carried as more people had voted yes
than no-more people from a Convention deliberately designed to achieve an
outcome contrary to public will.
That will represents the greatest challenge yet to the power of the parties and the power of the executive. The Labor Party, bruised by history as it is, knowing that it might get back into power one day, has supported that model, knowing that it isolates the President from any role in the political process. The High Court recently ruled that we are independent. But to enshrine that independence we must have a republic model that is truly democratic and representative. Should this referendum be lost-and I hope that is the case-then the will of 70 per cent of people will cry out to be properly represented by a proper model. This cleverly camouflaged republic model will, I hope, fool no-one. Those nervous nellies who say, `You must vote for this imperfect model. It is the only chance we have,' are falling into this major party-establishment trap. There is absolutely no imperative to reach republic status by the year 2001 save for the symbolism of doing it for the start of the new millennium. A former eminent member of this place, Sir James Killen, who does not support any republican model, says that this proposed legislation means the President `would be very much a tool in the hands of the Prime Minister of the day'. ARM Chairman Malcolm Turnbull said in the same debate in which Sir James spoke that this model was a `minor and substantial' change. In saying that, he inadvertently gave the game away. The substantial changes are being camouflaged by the minimalist rhetoric. True democrats are not fooled.
The public participation in this republic model is illusory. While it allows any Australian to nominate someone for President, it is a Clayton's nomination process, something which exists in name only. The committee of 32 which nominates the eventual candidate is appointed by the Prime Minister of the day. The report of that committee, containing the short list of nominees, need not be tabled in parliament and thus would not be open to public scrutiny.
Former conservative Attorney-General Bob Ellicott believes that the consultative committee process will throw up compromise candidates. Tellingly, he says that if they represent the people's choice it will be by accident, because the committee, with a large component of government nominees and politicians, is unlikely to be representative of ordinary Australians. Mr Ellicott is spot-on when he derides the Republican Movement members who say, `Support this model and change it later.' He quite rightly points out that `this is a reckless and irresponsible approach to basic constitutional reform'. He says that `the likelihood of it being changed, if adopted, is quite remote as anybody who has any experience or in-depth knowledge of constitutional amendments in this country should know'. But if we introduce the kinds of amendments we know the people want-that is, direct election of a President-then people will be far more likely to support it, knowing that it is about lessening rather than strengthening executive power.
Those who argue how unlikely is the passage of referenda in this country should look closely at the reasons why. I would suggest it is all about the well-founded suspicion and fear of government and executive dominance. The direct election presidential model would in fact appease those suspicions and fears.
This bill will almost certainly be passed. On 6 November, a referendum will be held posing a question that will be rejected if public opinion polling accurately reflects the mood of the Australian people. Those people know that this model is not about shifting the portrait of Sir William Deane from one place on the wall to another and simply rebadging the brass plaque. They know it is about reducing that portrait by more than half and that the title `President' will always be embraced by inverted commas. It would be a republic in name only. If the Prime Minister's motion for appointment of a President were not approved, the Prime Minister of the day could leave the position vacant. The Prime Minister could keep a compliant President in office and ensure compliance by offers of continuation in office.
No grounds are specified for removal of a President by the Prime Minister. There is no provision for the grounds for dismissal to be made public. There is no provision for both houses to be recalled should a dismissal occur. There are no provisions to cover any lack of support from the House of Representatives for the dismissal of a President. Any acting presidents could be dismissed by serial dismissal notices. The Prime Minister would be sole judge of any incapacity on the part of a President. The royal prerogative would be fixed in the Constitution and monarchical powers would in effect transfer to the Prime Minister, the people nowhere to be seen.
Under the Presidential Nominations Committee Bill 1999 to be introduced in parallel to this bill, the Prime Minister would have exclusive control over nominations to the Nominations Committee, apart from party or state nominees who would effectively be controlled by the majority parties in the state lower houses. The Prime Minister would in fact have the numbers on the committee, even without his or her own party supporters, by appointing the non-politician members who would make up half the membership and by appointing the convenor who would have a casting vote. Only lower houses of state parliaments would nominate state members, thus ensuring state governments controlled nominations and excluded minority parties and independents represented largely in upper houses but in both houses.
The Prime Minister would have virtually complete control over the terms and conditions of appointment to the Nominations Committee. Under clauses 13 and 15 the Prime Minister could manipulate vacancies and dispose of unfavourable members of the committee. Under part 5 the nomination process would be entirely secret, with the public-remember them?-having absolutely no way of judging whether the best nominee has been chosen by the Prime Minister.
This Constitution Alteration (Establishment of Republic) Bill 1999 should be opposed because it sets up a referendum that is inherently undemocratic in not posing the question people want. Ian Ireland and Joanna Longley of the research services of this parliament have quite clearly stated in their paper how the dismissal process alone in this bill is `the only model which does not provide a ground or grounds for dismissal or require that reasons be given. Moreover, there is no other precedent among republic dismissal models for prime ministerial removal of the President'. The Clerk of the Senate, Harry Evans, quite firmly believes that this model, the offspring of a non-democratic process, would increase the unhealthy concentration of power in the Prime Minister. He says that the `provision of constitutional safeguards is quintessentially republican. A country without safeguards is no republic'.
In a republic the power of the monarchy must be substituted by the power of the people. The head of state must be the representative of the people, not the representative of one or either side. As most of those in this debate keep saying, there are not two sides, there are many sides now representing the increasing plurality of the Australian electorate. The real debate we should be having is one leading to a plebiscite or referendum-and I would prefer the plebiscite option-of whether or not people wish to break our links with the monarchy. We should have had such a plebiscite before any convention. Only after such an indication from the people can we have a proper debate-without the current divisiveness, the obfuscation and the complete hiding of the true germ and kernel of what people want-on constitutional reform, not this attempt to graft an unwanted and far inferior substitution for the Governor-General onto a rickety Constitution in need of wholesale reform.
The Leader of the Opposition in his contribution urged direct election advocates to not oppose this model. He spoke of the reluctance of the parties to put this matter on the agenda again if this referendum fails. What if the people out there want it on the agenda? And they will. It will not go away. He spoke of national humiliation if this referendum is lost. He spoke of how infinitely harder it would be to bring about constitutional change should the people say no. In all of this, there was very little, if any, mention of the express will of the people for a directly elected President. If we do have in our parliamentary ranks direct election advocates on both sides of the House, then it will take but a properly constituted convention to design a model approved by the people-one that codifies the power of the President and one that codifies the proper powers of any Prime Minister.
Under the Referendum (Machinery Provisions) Act, only those members who oppose the legislation setting up such a referendum can contribute to the official no case against the question distributed by the Australian Electoral Commission. I call on the member for Flinders, who has been so vocal on the direct election model, to join me in voting against this bill so that his arguments can be included in the official no case. I also call on those direct election supporters hidden in the ranks of both government and opposition to throw off their party shackles and begin the process towards a true republic by voting against this flawed and inherently deceitful referendum bill.