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University of NSW
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I was one of two Victorian `Real Republic' delegates elected to the Constitutional Convention.
Tim Costello and I promised to widen the debate from the narrow issue of the nationality of our head of state to include such broader matters as how to put power back in the people, to protect our political, social and economic rights, and to make government more accountable.
Our campaign slogan was "It's more than a game". Ironically, the Convention was a great one. Ironically, we who had argued that the head of state was an unimportant symbol found ourselves, within 48 hours, part of the Direct Election of the President Group because it was the only way our issues could be heard.
In a final irony, Tim and I then found ourselves supporting a `model' that does not protect rights, give more power to people, or let them elect their president.
The ghost of Sir John Kerr, and what he did on 11 November 1975, haunted the whole Convention. If a governor-general could dismiss an elected government, so can a president. As a result, the Convention was not a confrontation between constitutional monarchists and republicans, but a struggle among the republicans on the breadth of constitutional change.
The republican cause is a broad church. True believers may, and we did, legitimately differ, yet the Australian Republican Movement (ARM) claimed orthodoxy and that other views were heretical. The official ARM line was that the public would be foolish to want, as it does, to elect their president. Malcolm Turnbull described it as a "ludicrous sentiment".
The essence of any republic is the sovereignty of the people. Disdain for their views and distrust of their judgement strikes at its heart.
A Direct Election of the President Group (DEPG) was formed by the second day of the Convention as a loose coalition, unlike the tightly disciplined ARM. We had not worked out our congruencies and differences beforehand. Within three days, nonetheless, we had agreed upon a single `model' of a republic to challenge the ARM's: one that would require Parliament to receive public nominations and appoint the presidential candidates for popular election. It was a significant overture to the ARM, which it ignored.
In retrospect, this was predictable. The ARM was committed to excluding any elective model because it would be opposed by both the government and the Opposition. It believed that this would kill a referendum's chance of success.
Instead of negotiating with the DEPG, the ARM negotiated with delegates who were willing to substitute `consultation' for election. The ARM's `camel' became the only republican choice left.
At this point the DEPG agreed that its members should vote on the last questions according to their consciences, and the extent to which they had campaigned for an elected president. We felt obliged to keep faith with our voters, a rather old-fashioned, amateurish approach to politics.
Some compromised, and some did not. Those who did not, voted against the referendum question because the `model' wasn't good enough - people like Paddy O'Brien, Phil Cleary, Pat O'Shane, and the Ted Mack and Clem Jones teams, who had campaigned squarely on `direct election'.
Tim and I, who did compromise, had not campaigned for direct election. We had always said that the `head of state' issue was less important than our democratic and constitutional problems. We had not put any position on presidential selection in our campaign literature, though we supported direct election (and codified, limited presidential powers) when we were asked. We would not have agreed, prior to the Convention, on a model that gave more power to the prime minister, Cabinet and political parties (institutions that do not rate a significant mention in the Constitution at all!). Nor would we have agreed on a model that would allow a president to be dismissed by, or dismiss, a prime minister in what George Winterton witheringly dismissed as a game of `constitutional chicken', depending on who first gave the other written notice.
We compromised because we were clearly in favour of a republic, and it was more consistent to support a flawed republican model going to referendum, than to preserve the empty shell of monarchical government. Crucial to our final position was one decision of the Convention that received little publicity.
The government is required to commit to another (two-thirds elected, one-third appointed) constitutional convention within 3-5 years of the start of the republic. It must review the operation and effectiveness of the new republican system of government and address any other matter related to its operation, including:
Even this would not have eventuated without the `dissident' (real) republicans being splinters in the banister of the Convention. Nor would it have happened without ARM support on the last day. The numbers, finally, always matter. They were worked out behind the scenes in the Convention the public did not see.
There was one Convention on television, radio, and in Hansard. However, there were also others.
There was the men's Convention, and the women's. I underwent a revelation on the first day. Tim and I met in the lobby just before 9 am. Tim excused himself briefly, and came back with a snippet of critically important information: the ARM's view on limiting the Senate's power to block Supply. This was crucial, because it would affect the vote on a President's powers and method of appointment. He had picked it up from Malcolm Turnbull, at the urinal.
There are some places a woman cannot go.
Indeed, Tim's Convention was not mine - and this is not a criticism - he met with the men who felt comfortable talking to him, but not with me.
As well, the Convention had a shadow counterpart. The public one was stuffed with set piece speeches, self-conscious of being televised and recorded. The hard work was done in private, in working groups, the Resolutions Group and, overwhelmingly, over food and drinks and in the lobbies and corridors of old Parliament House.
The Convention was not established by legislation, as many assumed. The legislation only provided for the election. The Convention could have, as a `meeting', determined its own agenda and procedures. Yet the government purported to limit its remit by fiat. It consulted with the Opposition, the ARM and the constitutional monarchists - not the delegates - and weeks ahead announced the appointments of the Chairman and Deputy, as well as the Convention agenda, issues and processes, by press release.
Unless that agenda could be changed, the Convention's task and outcome was predetermined. The only movement could be through `working groups' whose recommendations would be sculpted by an appointed `Resolutions Group' into the final matters for the Convention to vote upon. This was designed to deliver a predictable talkfest and public cynicism ran high.
The plan was challenged within the first hour of the Convention. David Muir, from Clem Jones' team, moved that rather than accepting the appointed chairmen of the Convention, the delegates should, `to reflect proper gender balance', elect a woman as an additional deputy. This was defeated.
Then Mary Kelly, Queensland's `Woman for a Just Republic', moved that:
In the running of the Convention, the following steps be pursued as far as possible:
- the Resolutions Committee be gender-balanced, 50:50
- speakers be gender-balanced 50:50, but no less than 33 per cent, consistent with female representation at the Convention;
- the cohort of Convenors should be gender-balanced over the duration of the Convention, as above;
- working groups to consider gender balance in their choice of reporters.
The motion was carried, in face of Bruce Ruxton's humorous expostulations that he did not know what `gender balance' meant. He was no orphan.
Anyway, `gender balance' did not guarantee a softer, kinder Convention. The `balanced' Resolutions Group's proceedings were boisterous. Nor were women equally heard; far more men spoke than women.
This was in part due to the failure of Clem Jones' motion on the first day that we should put the proposition, that the Convention agreed in principle that Australia should become a republic, as our first business. Its defeat meant that each delegate had 15 minutes to give a set piece speech, not advancing the argument, without the discipline of the rules of debate and taking up most of the available time. In addition, would-be speakers (on workshop resolutions) simply put themselves forward to the Secretariat, which provided the list to the chairman. The order was varied by delegates' agreement, or abandoned as time ran out, or modified at the chairman's discretion. It just happened that men benefited from the arrangement.
As well, after vigorous interjections and heckling from some very rude men, many women were reluctant to speak. Even though, after behind-the-scene approaches, Ian Sinclair announced that such intimidation would not be tolerated, this continued.
On the first morning I tried to change the agenda. The most important business of the Convention had been left out. I moved that:
in order to meet the legitimate expectations of the Australian people the Convention allocate two days for discussion of issues of constitutional change other than those related to the Head of State, including but not limited to a new preamble, a charter of rights, freedoms and responsibilities, the recognition and honouring of the original peoples of the land and accountability of government to the people, and that the Convention establish working groups to make recommendations for the consideration of the delegates.
The motion was resoundingly defeated, with the (federal) ALP and Coalition parliamentary delegates, the ARM and the monarchists finding common cause. I watched, fascinated, as the men on the front bench - Beazley, Turnbull and Howard - agreed on Turnbull moving an `amendment' that, in effect, deleted all words after `that' in my motion.
Then the Convention agreed to set up working groups to develop a new constitutional preamble and recommendations for future constitutional review. The former was deprived of all purpose when the Convention later agreed that a preamble must not affect the interpretation of the Constitution. The latter was later ruled `out of order' by the Chairman (although it was reinstated on the last day).
It was in those workshops and their resolutions that the issues of rights and reform, which the major parties did not want discussed, were discussed. Still, their resolutions had to be supported by the Convention.
Number-crunching nearly killed the Convention on the second day, when the ARM, Australians for Constitutional Monarchy (ACM), Coalition and federal ALP delegates overplayed their hand by voting to reject any discussion about the president's powers. This meant we could not even discuss electing the president, who (on the face of the Constitution) wields all executive power. The non-aligned republicans said, and meant, that without this discussion there was no point in maintaining a presence at the Convention. The powerbrokers realised that this would deprive the Convention of all credibility. The Resolutions Group recommended, the next day, that provided a motion received the support of 25 per cent of the delegates, in the opinion of the Chairman , it should go to the Group to be shaped for the final vote. The Convention agreed. The presidential powers and other resolutions were retrospectively reinstated. Sadly, my motion that we should debate the constitutional recognition of citizens' rights was not.
Critical discussions took place off-camera, and out of Hansard. These were very differently debated. Although politics has always been a back-room activity, I now believe that the deliberation of at least the Resolutions Group should not have been, in retrospect, `private'.
I was appointed to the Group. It was the hardest committee on which I have ever served. Its business was marked by interruptions (including mine, but it was self-defence), in-jokes and dominant behaviour, especially from Malcolm Turnbull and Gareth Evans.
Chairman Barry Jones tried to jolly things along, not always successfully. His jesting references to a `politburo' (which included some of the Group's members) seemed to confirm the perception that key decisions were being made outside not only the `people's convention' but even its `powerhouse', the Resolutions Group.
After the Convention was over Jones claimed (in a letter to the Australian) that I was both `humourless' and wrong in asserting that there was such an inner group, and that the `politburo' reference was his humorous description of the secretariat's administrative committee. That was not the impression he gave, nor did he rectify it. Besides, some kind of `politburo' was in evidence when, after the Group agreed on the first Friday of the Convention on the voting procedure for the Convention's final resolutions, its recommendations were reversed over the weekend. We had (by a majority) agreed upon a process that would have ensured that the different republican `models' did not compete with one another before the `in principle' vote on the republic. That agreement was reversed after the Prime Minister personally intervened. There were other similar instances.
The Group's proceedings were noisy, at times physically punctuated, and sometimes marred by offensive behaviour (Gareth Evans blowing kisses at me) and swearing. Jones appeared genuinely not to notice its effects, perhaps it seemed normal to him, until Pat O'Shane and I drew it to his attention, at which point he became less affable. Nor did he require, as he should have done, apologies from the perpetrators.
Other than by blowing the whistle on the floor of the Convention, as Lloyd Waddy suggested, or running to the media, which would have jeopardised the Convention outcome, there was nothing to be done about this.
Different standards were applied to delegates' behaviour when proceedings were public, and recorded. On the Convention's last day I made a serious, short address critical of our failure to address citizens' rights. I slipped, and said this was `bloody' stupid. Jones, then chairing, pointed his finger and demanded: `Don't use that word!' Of course, I withdrew it, but momentarily toyed with retorting that it was a pity he had not applied similar rigour to the language and behaviour in the Resolutions Group. I apologised. Gareth Evans and Daryl Williams QC, Attorney-General, were caught on camera laughing.
Tim Costello's and my final vote depended on last-minute negotiations on the future constitutional convention, unexpectedly ruled `irrelevant' and out of order by Ian Sinclair two days before.
Finally, we played the numbers game. Tim dealt with the ARM, the ALP and the Coalition. With Evans, Tim redrafted the resolution and took it back to Chairman Sinclair, who approved its reintroduction in the penultimate session. I took it to the independents, our DEPG colleagues, and (through an intermediary) to the monarchists, seeking that they at least not vote against it.
It got up. If it had not, my final vote would have been different. It got up because we played the political game. The ARM wanted our votes; we dealt.
How was the Convention? Like the curate's egg, good in parts. It ran efficiently. It cost half of what was expected. It did not collapse, as it could have, on the second day. It got a result. In public relations and policy terms it was great: people saw how politics could be `done' by amateurs - though by the end I was no longer an amateur - with idealism and passion. Australians talked about democracy, citizenship, republicanism, rights and presidents. But `old politics' were alive and well, with manipulation, deals, deceptions, bullying and patronage, off-camera.
Contrary to Barry Jones' assertion, there were bucketloads of humour. Alf Garland and Bruce Ruxton were our grumpy muppets, Queensland's Paul Tully won the Worst Publicity Hound Oscar and I got the journalists' bad-hair award (that pink fringe).
The ARM-preferred model is unsatisfactory, and voting that it should go to a referendum was a compromise we endorsed only after our efforts to widen the debate failed, all elected presidential models were outvoted, there was an apparent commitment to future constitutional review, and when the only other alternatives were to support the McGarvie (`three old codgers') model (really, not a republican choice at all) or to defeat any republic referendum entirely. The choices were manipulated, but there was no guarantee that the Prime Minister would hold a plebiscite if the Convention failed to come to a result.
On Friday 13th February 1998, 89 delegates voted for the proposition that, in principle, the Convention supported Australia becoming a republic.
The tension had been rising all morning. When we stood and saw our numbers, we began to clap and cheer. Then, in an unexpected and genuinely moving moment, the people in the packed public gallery stood and cheered with us. It was wonderful.
In the end just 73 delegates - less than an absolute majority - endorsed the ARM model. John Howard said he would nonetheless hold the referendum. He was praised for this, though at that moment he had no political alternative. Finally, 133 women and men voted that its queer compromises should go to the people.
The ARM is now calling for a grass roots campaign to support a republican vote. The government has not yet drafted its legislation. The Convention recommendations could be tinkered with. It is not the only workable model, but the spirit of the entire Convention recommendations must go to the people: if they do, I will not campaign against the referendum.
The referendum could fail if the people prefer an elected presidential model and real constitutional reform to the ARM `camel'. This would set the republican cause back a decade.
We missed a chance in February.