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Republican debate: question of the reserve powers

KEVIN HUME: Well, the monarchists have always warned that you can't just tinker with the Constitution and move into a republic, and as the republicans are now finding, any changes to the way our system works are likely to be met with strong resistance from many quarters. Here's Pru.

PRU GOWARD: When the Governor-General, Sir John Kerr, sacked the Labor Government in 1975 he was using the reserve powers of his office which he believed entitled him to resolve a deadlock between the two Houses of Parliament over the country's money supply by sacking the government of the day. If Australia becomes a republic, the question goes, what powers should a president have when it comes to resolving a similar Supply deadlock? Malcolm Turnbull, chair of the Government's Advisory Committee has proposed several solutions. Removal of the Senate's power to block Supply Bills altogether leaving everything just as it is, or requiring that such a blockage require an election for both Houses with the president having the power to dissolve the Parliament after a certain point has been passed and reached. It's this latter proposal which has been greeted by the monarchists as validating the actions of Sir John Kerr eighteen years ago and is, perhaps, likely to stir trouble in Labor ranks. Its proponent, Malcolm Turnbull joins me now.

Malcolm Turnbull, why propose the examination of the reserve powers?

MALCOLM TURNBULL: Well, it's an integral part of the process we're embarking on. We've got to do that, you can't examine the republican options without considering the reserve powers.

PRU GOWARD: All right. So, would you agree that hardly minimal change once you do that?

MALCOLM TURNBULL: Well, it depends what you mean by minimal. If you look at the question of the Senate there are three inescapable facts about the Constitution that have to be borne in mind. First, the Government cannot govern without an Appropriation Bill being passed by Parliament because it needs that money to govern. Secondly, the Senate's decision in favour of an Appropriation Bill is a necessary part of that process. And thirdly, therefore it follows that if the Senate refuses Supply ultimately it can bring down a government. Now, we can leave everything exactly as it is under a republic but it will not remove the confusion and chaos of 1975. The only ways you can do that are to lay down some rules so that the Senate's blockage of Supply has a consequences and procedures and effectively removes the head of state from the crisis, so you're not really codifying the reserve power there you're for all practical purposes, removing it because there's no need to exercise it. And alternatively, of course, you remove the Senate's power.

PRU GOWARD: But you would agree that that latter proposal, the power of the president to dissolve the Parliament following certain procedures, although it might not confirm Sir John Kerr's process, that he used it certainly confirms his right and propriety in doing so, would that be right?

MALCOLM TURNBULL: I don't think, there's no question that the Governor-General has and indeed had in '75 the right to sack the Government if it had no money. The question I always understood to be was whether Kerr had misled Whitlam or whether he had acted too soon, I mean, there's no question, I don't think, even Gough Whitlam would argue that if the Government have got to the point where it was paying the public servants in bottle tops and old sandshoes, that at that stage the Governor-General would have had to intervene.

PRU GOWARD: Sure. I thought the other question was who went to the people as the Prime Minister and who went as opposition leader?

MALCOLM TURNBULL: Well exactly, that's precisely right and of course that is one of the things that a solution of the kind we've canvassed does rectify. If you say, if the Senate blocks Supply on two occasions within thirty days or something like that there is an automatic double dissolution then of course the Government goes to the people as the Government. Now, the real criticism of that and the concern with that is, is it entrenching or encouraging or formalising the Senate's power to block Supply. Now, that's certainly a concern. The fact is that power does exist in the Constitution now.

PRU GOWARD: But, at the moment that power is certainly used very nervously by the Senate which is aware of the public opprobrium. Now, under your proposal it does confirm their right to do so in a way that, well as you say, could encourage a Senate for example, a new Senate, on 1 July, certainly there's no suggestion of a Government majority there that sort of Senate could easily force an election. MALCOLM TURNBULL: Well I think so, I mean the Democrats, as you know, are committed to not doing that so I think it's pretty unlikely as long as the Democrats are in an influential position in the Senate but speaking generally, yes of course, the Senate could do that. I don't know that the proposal we're discussing would encourage them any further in reality. You must bear in mind that under the law as it stands the Senate can block Supply and send the House to an election but not go to an election itself. The only reason there was a double dissolution in 1975 was because there just happened to be some other section fifty-seven grounds for having a double dissolution in respect of other rejected legislation. Now, most people, I think the vast majority of people, would agree that if the Senate does block Supply there ought to be an election for both Houses and I guess that is the great discipline on the Senate, that the people will judge the Senate very harshly, or the party that promoted the rejection very harshly, for turfing the Government out.

PRU GOWARD: Malcolm Turnbull thanks very much for joining us this morning.