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Reflections of a Convention Delegate Reflections of a Constitutional Convention Delegate An Address by Sir David Smith KCVO AO toThe Cook Society at the Australian Club, Melbourne and published as a supplement in the Autumn Newsletter
I thank the Society for your invitation to lunch with you today and to share with you some reflections on the Constitutional Convention which took place in the first two weeks of February in Old Parliament House, a building which has played such an important part in the political and constitutional history of this country, and is now itself part of our cultural heritage. I first entered it in December 1958 and spent the next five years working in it as Private Secretary to a Minister in two Menzies Governments. Between 1973 and 1990 I returned to it from time to time for vice-regal ceremonies, both inside and outside the building. Since 1993 I have been a volunteer guide at Old Parliament House, and once a fortnight I guide tourists through it and tell them something of its story. Against that background, it was an especially wonderful experience to find myself last month sitting on the green leather benches of the House of Representatives and participating in vigorous debate about this country's future, just as I had seen so many parliamentarians do over the past forty years. As some of you will know, I am an outspoken supporter of our present Constitution and our present system of government. I served both for the whole of my working life, and I know how well they have served and continue to serve this nation. I also respect the views of those who equally strongly wish for constitutional change. Our democracy is able to tolerate both sets of views and to withstand a civilised contest between them. The events of the first two weeks of February were very much a part of that contest, and the contest still has a long way to go. It began in April 1991 when the Australian Labor Party's national conference resolved that Australia should become a republic in January 2001. The original motion had nominated Australia Day, 26 January, as the change-over day, but this was quickly amended to the Centenary of Federation, 1 January, for the very simple reason that it would bring about the change 25 days sooner. Apparently no one saw the irony of celebrating the nation's one hundredth birthday by rewriting its birth certificate. The motion was moved by a junior backbencher right at the end of the conference, when most of the delegates had already begun packing up to go home. The conference chairman, in declaring the motion carried on the voices, chided delegates for their apparent lack of enthusiasm. From this inauspicious beginning was born a campaign based on bitterness and division, a campaign which has made it perfectly clear that in multi-cultural Australia there is room for every cultural inheritance except the one which established the nation, laid the foundations for all that it has achieved in its relatively short existence, and is still the cultural background of the vast majority of its inhabitants. For the next eight months the Hobart resolution simply sat on the conference record. Bob Hawke was still Prime Minister, and he was of the view that no change should be made to our present constitutional arrangements during the Queen's reign. But in December 1991 Paul Keating became Prime Minister, and he set about trying to turn Australia into a republic as quickly as possible. From the outset, Keating's motivation was clearly anti-British. He denounced those of us who proclaimed our loyalty to the Queen and the Constitution as "lickspittles" and "forelock tuggers"; he derided the Constitution as a British document despite its inspiration and its drafting being entirely Australian; and he publicly attributed his republicanism to his Irish Catholic background, a view which I know is not shared by all Irish Catholic Australians. Soon other republicans announced their reasons for wanting to change our Constitution. We were constantly reminded that the republic was inevitable. The arrogant assumption of the inevitability of something on which the electorate is yet to exercise a free and democratic vote is an insult to the intelligence of the Australian people. The media quickly weighed in with their support. On the whole, most of those who are engaged in the media are personally committed to the republic, and are able to push their personal views in a way that no one else is able to do. They are allowed to intrude their personal views into their news stories and commentaries, so that the line between news reporting and comment becomes blurred or sometimes even disappears altogether. It's not very professional or ethical but it's very effective in skewing the debate. As Paul Kelly, the then Editor-in-Chief of The Australian, told a constitutional seminar, the media support constitutional change because the media have a vested interest in change, because change equates to news, and news is the life-blood of the media. In other words, the media support constitutional change, not because it is good for Australia but because it is good for their business. I turn now to some of the arguments for constitutional change that the media have been so keen to report and support. Peter Collins, a former senior Liberal Minister of the Crown in New South Wales, and now Leader of the Opposition in the State Parliament, believes that the ultimate decision- making process for Australians rests with a foreign government, and that "it would be from the British Government that any monarch receives, and will continue to receive, advice on constitutional issues." This, said Peter Collins, was why he was a republican; but his assertions are simply not true, and what is more, they ceased to be true two years before he was born. Mr. AI Grassby, a Minister of the Crown in the Whitlam Labor Government, believes that the monarchy was responsible for the recession of the late 1980s, for the one million Australians who were unemployed and for the business excesses of that period, and for the exodus from Australia of our top scientists! How can you possibly have a debate with people who argue like that? Just to show that it isn't only politicians who are able to produce weird and wonderful reasons for becoming a republic, let me give you some more examples. Mr. Michael Lynch, General Manager of the Australia Council for the Arts, has this view of the monarchy: "The unfortunate reality is that there is still a sense of outside control, even if that control is only psychological. It must be broken in order for artists fully to express themselves as artists." So now the monarchy stifles artistic talent and prevents our artists from fully expressing themselves! Last October, former Chief Justice of the High Court of Australia, Sir Anthony Mason, confessed that he had become a republican at the age of eight, while watching a cricket Test match between Australia and England during the 1932/33 bodyline series, though it would seem that he waited for sixty-five years before revealing it. Mrs. Sallyanne Atkinson, former Lord Mayor of Brisbane, former Australian Trade Commissioner to France, and an Australian Republican Movement delegate to the Convention, said that she was a republican because she found the French confused by the fact that the Queen of England was also Queen of Australia. I should have thought that the French would have been more confused by the fact that, following their bloody revolution of 1789, they have endured the Reign of Terror, an empire under Emperor Napoleon, the restoration of the Monarchy, the Second French Empire, as well as republics One, Two, Three and Four, not forgetting the Vichy Government's collaboration with the Nazis during World War 11, before President de Gaulle gave them their current Fifth Republic. The Trade Commissioner might more usefully have spent her time in Paris in telling the French something of the enduring stability of our constitutional arrangements. Unfortunately, Mrs. Atkinson is typical of so many in our foreign service, from former head of the Department of Foreign Affairs and Trade, Mr. Richard Woolcott, down, who have stated publicly that our Constitution should be altered simply because they have difficulty in explaining it to foreigners. Only two days ago in Sydney Mrs. Janet Holmes a Court told a delegation from the British Chamber of Commerce that she wanted a new flag and a new Constitution because an Asian Cabinet Minister had told her that his country would help the Australian people in their struggle for independence from Britain! If our diplomats and trade representatives cannot understand, explain and defend our present system of government they should get off its payroll. The former Chairman of the Board of the Australian Trade Commission, Mr. Bill Ferris, believes that: "A move by Australia to a republic status would present a windfall marketing opportunity to Australian exporters. Getting the international market's attention is always a challenge, but especially if your image has become outdated, outmoded and possibly harmful to the promotion of your products and services." So now the monarchy is responsible for our trade deficit! Last November Mr. Ferris was joined by a number of prominent businessmen, led by Mr. Lindsay Fox, Founder and Chairman of Fox Group Holdings Pty. Ltd. and an elected Australian Republican Movement delegate to the Convention. Mr. Fox and his colleagues saw the republic as an opportunity for Australia to "re-badge" and "re-brand" itself, thus reducing the nation, its history, its Constitution and its system of government to the level of a new car or a packet of detergent. So I was delighted to read last week of the views expressed at the World Economic Forum by another Australian businessman, Mr. Richard Pratt, Joint Chairman and Managing Director of the Visy Board Group of Companies and Vice-President of the Victorian Chamber of Manufactures, who saw the current state of the Asian economy as offering exciting and unlimited opportunities to Australian manufacturing companies. He spoke of our relatively strong and flexible capital markets, our diversified and sophisticated banking sector, our educated work force with its many skills, our access to raw materials, and our financial and political stability. And he said nothing about having to get rid of the Monarchy in order to make all these valuable national assets work for us. I have recounted some of the more bizarre arguments which have been advanced for wanting a republic because I believe they indicate the defective reasoning which has bedevilled much of the debate. With so many specious arguments being advanced, what hope is there for the ordinary Australian to understand how the system works? The great difficulty in having a sensible debate in Australia today about proposed changes to our processes of government is that most Australians don’t know enough about our present system to enable them to put into proper context any proposals for change. The Constitutional Commission appointed by the Hawke Government in 1984 to inquire into certain aspects of our Constitution, and which reported in 1988, found that almost 50% of all Australians were unaware that we even have a written Constitution, and that in the 18-24 year age group the level of ignorance rose to nearly 70%. The Civics Expert Group appointed by the Keating Government in 1994 reported that nothing had changed, and that our present system of government and the principles underpinning it were still well-kept secrets, with 82% of Australians knowing nothing about the content of our Constitution. While we have no concrete evidence that much has changed in the intervening years, the nature and extent of the media coverage of the Constitutional Convention, and the level of public interest taken in the Convention, suggest that some improvement may have taken place. Because we take so much for granted, we tend to forget that, in a world where most nations can have their constitutions changed by their parliaments or governments, ours may be altered only with the approval of the people. The referendum provisions in section 128 of our Constitution are rare and precious. Constitutional change in this country requires our consent, and democracy requires that it be an informed consent. Though we still have a long way to go, I like to think that the Convention made some contribution towards a better informed electorate. There was also one other major achievement at the Convention which gave me much satisfaction, and I am most grateful to the republicans for it. In the years since my retirement from public office I have written and spoken, amongst other things, about the role of the Governor-General, about the evolution of that role, and about a growing awareness, in government circles at least, of the true nature of the Governor-General's constitutional position. In speaking about these matters on the first day of the Convention, I tabled a document giving chapter and verse on these matters. In summary, the paper makes the following points about this country's constitutional arrangements:
The republicans have pretended not to see the evidence which I have produced for my view of the role of the Governor-General under our Constitution. That evidence begins in 1901 and culminates in a legal opinion given to Prime Minister Whitlam by the Commonwealth Solicitor-General, Sir Maurice Byers, in 1975, and in advice given to the Queen by Prime Minister Hawke in 1984. Acting on that advice the Queen revoked Royal Instructions which Queen Victoria had issued to the Governor-General in 1900 - Instructions which were never valid or lawful under our Constitution and which should never have been issued. A Governor-General possessed of significant executive powers under our Constitution is not to be compared with a purely ceremonial figurehead, which is what some republicans would reduce the office to. They refuse to acknowledge the fact that, in drafting our Constitution, our Founding Fathers gave to the Governor-General powers that had never before been conferred on any other Governor or Governor-General within the British Empire. Instead, they have preferred to debunk my view without providing a single, valid, countervailing argument. But what did they do at the Convention? Everything they did, said and voted for confirmed what I have been saying these past seven years. They used to say that their minimalist constitutional change would replace the Queen with a president, but they now offer us a Constitution under which the Queen would be replaced by federal politicians, for it is they who would perform her only constitutional duty. By their own reasoning, wouldn't that make parliament the new head of state? The republicans also maintain that the Governor-General is not a head of state, but that a president having exactly the same duties and exercising exactly the same powers would be a head of state. I await their explanation for such palpable nonsense! Though republicans agree that they want to remove the Queen from our Constitution, the biggest arguments in the Convention, leading ultimately to a bitter split between republican delegates, was over how to replace the Sovereign. And we saw the seriousness of this division at the Convention when those republicans who want the president to be directly elected by the people refused to support the final model under which Parliament would elect the president, saying that they would rather support the present system of constitutional monarchy than support the Convention's republican model. The extraordinary aspect of the republican performance at the Convention was the fact that they used the Convention to do the negotiating among themselves. After saying for years that "it" was inevitable, they were still not able to come to the Convention with a clear and single version what "it" actually consisted of. Although the Australian Republican Movement had its version of "it", they found that they had to negotiate it on the run, and we even saw Malcolm Turnbull drafting amendments on the floor of the Chamber just before the final votes were to be taken. So it was not surprising that, while the principle of an Australian republic received 89 votes from the 152 delegates, and all the transitional bits and pieces and all the motherhood statements that everybody wanted to shove into a new preamble to the new Constitution received 102 votes, the final Turnbull model received only 73 votes - or 48% of the total - while 79 delegates either voted against it or refused to vote for it. So bitter were the disappointed republicans over the model finally chosen that, in the public debate that lies ahead, and in the referendum to follow, the monarchists will be supported by a significant number of disaffected republicans: hence the wide-spread view that the Referendum will be defeated. Right after the Convention a Newspoll found that public support for the final model was at 47% - one percentage point less than its support at the Convention - and former Chief Justice Sir Anthony Mason has conceded that the referendum would be unlikely to succeed. During the Convention a number of speakers, led by the Premier of New South Wales, Mr. Bob Carr, maintained their rage against Sir John Kerr and spoke of codifying the powers of the president in order either to reduce them or remove the element of discretion; they also spoke of removing the power of the Senate to block supply. This, of course, raised the hopes of those delegates who favoured direct popular election of the presidency, for direct election would be unlikely to succeed without those additional changes to the present Constitution. But when push came to shove the Australian Republican Movement conceded that these changes were unachievable and insisted on election of the president by the Parliament. Those republicans who favoured popular election withdrew their support. For them the chosen model is not a real republic at all, and they were vehement in their criticism of it and of its proponents. These 'direct elect' republicans, as they came to be known, were joined in the final votes by a significant number of delegates who chose to abstain. To have 32 and 22 abstentions respectively in the last two votes on the preferred model, and that after two weeks of intensive debate, discussion and negotiation, indicates a very high level, not just of dissatisfaction but of downright opposition. Some were not prepared to vote for a republican model which contained features which they could not support. Some found themselves being asked to vote for resolutions worded in ways which they could not support. Others refused to vote on questions which they felt were matters for the Australian people to decide, and not the Convention. Under our present Constitution our constitutional head of state is chosen by the Government of the day, is advised by the Government of the day, and may be removed by the Government of the day. Nothing could be more democratic or more republican. But over and above this republican democracy our Founding Fathers placed the Crown, which denies even Parliament the ultimate sovereignty and places it with the people. For when the Governor-General exercises the reserve powers of the Crown, as was done in 1975, it is to remove an issue from Parliament and to remit it to the people. As Bishop John Hepworth, an elected Convention delegate from South Australia representing Australians for Constitutional Monarchy, reminded us during the closing debate: "What we have before us now is a proposal to shift the sovereignty of this nation from the Crown to the parliament. That is the inevitable consequence of what we are now being asked to do. It is not a debate about republic versus something else. We are debating heads of state and therefore we are debating sovereignty." Bishop Hepworth continued: "I am happy to enter into the argument that the Crown, as it has evolved, especially in the past 200 years, is in fact the encapsulation of the sovereignty of the people, and I am happy with an Australian system which does not give sovereignty to the parliament. Sovereign parliaments have always been dangerous creatures and they are not to be trusted." The Bishop concluded with this: "May I appeal in conclusion to those who have come here to argue for different republics. I find myself in strong disagreement with Archbishop Pell. All republics are not the same. Look around the world and that is obvious. You cannot vote for just any republic on the basis that any republic is better than what we have got." In my view Bishop Hepworth got it absolutely right. The role of the Crown in the appointment process ensures that the Governor-General's allegiance is to the entire nation and not just to those who voted him into office. In our democracy there is an important distinction between being elected and being appointed. Election to a public office, as distinct from appointment, carries with it the notion of a mandate, with policies to pursue and supporters to be rewarded, and there is no place for such influences on the person who sits behind the desk at Government House, Canberra. If there was one disturbing feature about the Convention it was the way in which various groups of republicans tried to rig the proceedings to prevent other groups of delegates from participating in the debate or in voting in certain ways. On Day I the "direct elect" republicans tried, unsuccessfully, to have the constitutional monarchists excluded from further participation in the Convention beyond Day 3. On Day 2 the ARM republicans succeeded in having the "direct elect" republicans excluded from further participation in the Convention, and it was an initiative taken by former Governor-General Bill Hayden, and supported by constitutional monarchists, that next day saw them readmitted to the debate. On Day 7 the Convention adopted a contrivance that had been deliberately designed to control the way in which constitutional monarchists could vote in the final votes. It was deliberately contrived to prevent us from voting strategically, and the republicans were quite shameless in admitting this when called on for an explanation. What they didn't realise was that, in the final vote to choose the Convention's preferred republican model, we still had the capacity to stuff them up completely anyway, had we wanted to. What they didn't know was that we had taken a decision last December to allow the republicans to choose their own model without any interference from us. On the tenth and last day of the Convention, the constitutional monarchists voted with the republicans to recommend to the Prime Minister and the Parliament the holding of a constitutional referendum, for we are not afraid to face the people on the issue. In moving the motion for the adoption of the Australian Republican Movement's compromise model, Archbishop George Pell spoke of the constitutional monarchists having voted with discipline, integrity and honour, a theme that was taken up by other delegates and by sections of the media. I was angry earlier at the suggestions that we might have voted strategically and that this had to be prevented, and I said so at the time. But I think I was even more upset later by those who seemed surprised that we had in fact acted honourably and with integrity, and praised us for it. Had they really expected us to act differently? With the Prime Minister committing himself yet again, on the final day of the Convention, to putting to the Australian people the republican model that emerged from the Convention, republicans and constitutional monarchists alike will have been disturbed by media reports attributing a different view to the Treasurer, Peter Costello, and the Attorney- General, Daryl Williams, just two days after the Convention had concluded. After describing the final republican model as "a hybrid on a hybrid on a compromise" and after referring to elements of it which he believes are unworkable, Peter Costello was reported as vowing he will urge the Federal Parliament to amend the model produced by the Convention. Other reports spoke of Daryl Williams tinkering with the model during his Department's drafting of the referendum Bill. For the Government to allow the Treasurer and the Attorney General to produce their own version of what they think the Constitutional Convention should have come up with, or for Parliament to tolerate such action, would be a betrayal of the Convention and a repudiation of the Prime Minister's undertaking. I hope that the community debate that lies ahead of us will be aimed at keeping the bastards honest.
Sir David Smith AO KCVO back to top of page |
