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The Foundation for National Renewal |
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The Constitutional Convention of February 1998 |
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A missed opportunity for much-needed reform. |
| Introduction | Delegates | Proceedings | Summaries |
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TRANSCRIPT OF
PROCEEDINGS Dr GALLOP- Thank you. I would like to introduce the recommendation that has been made by the second working group from yesterday with a few comments about the context in which we make that proposal. The first is that if we are going to attach significance to the event of moving to a republic it seems to me that one of two conditions has to be met. I am using the word `significance' in the more profound sense rather than the narrow public relations sense of the word. The first is that there would have to be either a significant increase in the power and authority of the position of the head of state or indeed a lessening of the powers of the head of state and the codification of those powers. Of course, we discussed that issue yesterday. In relation to the proposition put forward that there should be a significant increase in the power and authority of the office, it was apparent that there was no great appetite for that proposition. It would appear that there was also no great appetite yesterday for the proposition that there should be less power and more codification and indeed perhaps as much codification as is practically possible. The general view appears to be for some sort of status quo head of state. The person of course would be Australian but would have no real specific significance to the nation beyond that which has been enjoyed by one or two of our past governors-general. They may gain some notoriety as some governors-general have by exercising the reserve powers that were defended so vigorously yesterday in a controversial way. Such heads of state would do the job- some adequately, some less adequately. It is worth noting that the more power they potentially have the less interesting and the more pedestrian they will need to be in order to be selected by any parliament. I suppose spam was sold for a couple of decades and it might be just possible to sell that definition. Another way in which we might be able to attach significance to a move to a republic is to look at this issue of the way the head of state is appointed or elected. We could infuse significance into the move to a republic by doing something that is uniquely Australian, something that is different and something that would actually attract the attention of people to the cause that we wish them to follow us on. It is most important that we remember that this issue has to go to a referendum, that those who advocate change have to engage people in that process, have to win people over to that process. The model for the republic that will be of interest to people, that will attract their genuine attention, will be one that involves them in its operation. I find it staggering, indeed to the point of frustration, that so many people at the Convention do not seem to take the concept of citizenship very seriously. Indeed, it would appear that the concept of citizenship is alien to the soul of many of the delegates to this Convention. We have the potential to create the most soulless republic ever created in human history. In order to look at ways and means by which we might overcome that problem, I think we have to look at this concept of direct election. Direct election is very important to people. It is very important to them that they participate in their system. It is very important to them that they be seen to be wanted as part of that system, that they can have a choice in relationship to the head of state.
So the question then comes down to how you find a model that would make that aspiration work. That was essentially the point of reference for the working group that I chair. The working group accepted that there were many legitimate objections to the direct election model; there were many practical difficulties with the model of directly electing the president. So we considered what might be a model that would meet the aspirations of people, be uniquely Australian, but at the same time overcome some of the problems that have been mentioned. The first option we considered was really a variation on the so-called Irish model, in which not less than 20 members of parliament and not less than four regional councils in that country can nominate people to stand for the election of the Irish presidency. We saw two problems with that model and therefore did not feel it was worthy of recommendation. The first problem that was seen with it was that essentially the process would be party nominated and party dominated. Therefore, it was felt that some of the difficulties that have been posed in respect of an elected president would result. But secondly, and more importantly, we saw a real problem with that model because it does not guarantee choice. As the deputy chairman wrote to me when I first advocated direct election in talking about these issues, he pointed out very correctly there have been contested elections in Ireland only in 1945, 1959, 1966 and 1973, 1990 and of course last year. You do not actually have to have an election with the Irish model if only one candidate is elected. And there was one well known to students of Irish history who was re-elected every year unopposed for many, many years. So you do not guarantee choice. Our view is that what people are saying is they want choice, they want to be involved in the process. So that model does not meet the test. We decided to look at a way in which we could do a number of things. The first is to look at what would constitute a panel that would meet the requirements that have been laid down in some of the objections to a republic by the speakers on the first day, a panel that would be seen to be reflective of the nation as a whole and a panel that would have an obligation to select three candidates for the presidency of Australia or, if we choose, a Governor-General. Of course, that would guarantee freedom of choice for the Australian people within a framework that sets down who will do the nominating of the candidates. The first conclusion we reached was that the states and territories of Australia should play a role in that process. Indeed, one of the objections that was raised in the first day of this Convention was that there did not seem to be a lot of concern taken over the way that our states and territories, which are constituent parts of our political system, could play a role in this process. After all, the head of state in a republic should speak for the whole nation, not just one part of it. So after looking at various variations on a theme we decided to put forward the proposition that the leaders of government and leaders of opposition in every state and territory in the Commonwealth should form a selection panel. You might note the balance that would automatically result from that in terms of the political parties. Therefore I think it actually incorporates some of the issues that the ARM have raised in respect of their support for a two-thirds majority of parliament. In other words, both sides would have to talk to each other about who would be nominated.
Secondly, and most importantly, we reached the conclusion following a very strong recommendation that came to this Convention from the Women's Constitutional Convention last week- and I read from recommendation No. 5 of their report from last week:
The selection
appointment process for the head of state must guarantee that
women's chances of occupying the position are substantively equal
to those of men. For example, the selection process should
address and overcome matters such as women's disadvantaged status
in political parties, women's inferior financial power and
women's restricted access to the media. Of course there are many practical issues that get raised by the process of nomination that we did not incorporate in our specific recommendation. They concern the processes that it would operate under. It was the strong view of the working group that to have a very open nomination process to that panel could cause difficulty. There would be arguments about due process and who was going to be considered and who would not that would make it practically awkward and difficult. We felt that the panel ought to operate under its own steam, preferably in camera, announcing its decision about who would be the three candidates for the election when it concludes its proceedings. One other objection has been raised to direct election that we did consider, which is the role that money would play in the process and how you could avoid the difficulties that might result from people with great financial power being able to influence the process. Although we did not incorporate it into our specific recommendation, it is certainly our view that, if such a process were chosen as the means by which we select the president, there ought to be regulations in place in respect of that election. It is not beyond the wit and wisdom of legislators to set up a framework for that election that would guarantee it focuses on the task at hand, which is to allow the Australian people to select one of three candidates, at least one of whom is a man and one of whom is a woman, to become the president of Australia. Indeed, we know from various experiences and jurisdictions that the task of looking at how you would elect under different conditions could be regulated to maximise chances of the result coming forward. We certainly saw this proposal as overcoming some of the objections that have been raised to direct election. We saw the proposal as a practical one. In two important respects, it breaks through; that is, it involves the states and territories in a very real and immediate way. Secondly, it recognises the true nature of our society. I recommend that, should our Convention decide to support the popular election of the head of state, this model for election be given very serious consideration.
CHAIRMAN- Thank you very much, Dr Gallop. I call Mr Don Chipp.
Mr CHIPP- I raise a point of order in a state of confusion, not anger. I suggest for your consideration, not for today's session but for the future, that once a report from a rapporteur of a working group is made you allow about 20 minutes to half an hour for general discussion from the body of the Convention. The detail and emphasis of what Mr O'Brien said 20 minutes ago has gone from my mind. It would be much more productive for a final good result to have a spontaneous and simultaneous discussion of comments from the floor.
CHAIRMAN- We can take that on board, Mr Chipp. As you know, the full detail of the report from Mr O'Brien, as is the full detail of report from Dr Gallop and indeed for each of the working groups, is attached to the Notice Paper. There is immediately available for everybody the full detail. It was thought that it would be therefore easier to allow all the reports to be presented so that they could be compared against each other. Your recommendation will be taken on board. I will report back to the Convention in due course. I now call Mr Steve Vizard to make his report on behalf of working party group C.
Mr VIZARD- I am delighted to give the report of Working Group C. We started out as a rabble, but I am pleased to say that by 8 p.m. we had become a well-oiled machine. We were a large and diverse group, but we canvassed a broad range of issues. Debate was spirited and we reached a consensus. I am all the more pleased because we are able to put these resolutions before you, which I commend to the Convention. It is worth noting that, while it was not intended by our working group, all the resolutions that we bring forward today were passed by a special majority of our working group. So seriously did we take our task that the working group convenor was ratified by a special majority of the working group. We unfortunately did not get to test the analogous dismissal provisions. Our task was to consider the arguments for the model of parliamentary appointment of the head of state by a special majority. The resolutions of the working group which we bring to this Convention in relation to appointment are as follows: firstly, that the head of state be appointed on the nomination of the Prime Minister and the endorsement of a joint sitting of the Commonwealth parliament; secondly, that this endorsement require a special majority, being a two-thirds majority, of the members present at the joint sitting; thirdly, that the Prime Minister nominate only one person; fourthly, that the appointment of the head of state be for a term of five years and that the head of state shall only serve for one term; and, fifthly, that any Australian citizen who is on the electoral roll be eligible to be appointed head of state. If I can turn to the principles that we examined underlying the notion of the parliamentary election of a president, these included that the parliamentary election underlines the supremacy of parliament. It is parliament which can make and unmake laws and prime ministers. As the supreme law making body, it is appropriate that it appoint the president or head of state. The parliament comprises the democratically elected representatives of the people. The appointment of the head of state by parliament provides for the democratic election of the head of state by the people through their elected representatives. It is the supreme democratic nexus. The election by parliament is clear, transparent, visible and symbolic. It enables the people to see and understand in a meaningful and visible way the gravity of the appointment being made. It ensures that the head of state is a person who commands widespread support across the political spectrum and that they are not beholden to, and are not perceived as being beholden to, any one political party. The working group also identified some specific concerns that it should take into account in shaping the particular model and the details of the mode of parliamentary appointment. These included that we wanted to involve the widest spectrum of candidates from which to choose and, consequently, that so far as possible the mode of parliamentary appointment not involve a competition which might lead to the exclusion of suitable candidates for the position who would not otherwise be prepared to accept such a position. We wanted to ensure the widest possible candidacy. It needs to be inclusive and be seen to obtain acquiescence across a broad spectrum, both geographically and politically. It needs to be visible, transparent and symbolic. They were the principles that we sought to apply as we developed our model. As was required, the working group considered the advantages of this proposed model over other models. In relation to the appointment of a head of state by council, the model which is being proposed by Mr McGarvie, it was thought that the defects included that it would be perceived as elitist; that it provided yet another tier of government and administration; that it was invisible and not transparent to the public and the electorate but rather reinforced a sense of a private decision made by an invisible Sanhedrin; that it gave no sense of public ownership; that consequently it would be perceived as undemocratic; and that, not being founded on the appointment by people, it provided no clear and publicly understood authority upon which the exercise of the reserve powers ought properly be based. It might be perceived simply as the Prime Minister's rubber stamp. In short, it was thought that it was both in fact and in public perception undemocratic.
The working group, as required, considered the arguments against direct popular election. The majority of the group disagreed with the notion of direct election for reasons already well expressed, but these included: it will become a clear political exercise; it will be a party political exercise with major parties fielding candidates; it will be exclusive in that those better resourced candidates will be advantaged because of their capacity to campaign, to buy media; and it will be publicly divisive. Other reasons were that, because of the visible nature of the competition, it will exclude a number of suitable candidates, particularly those of the sort who have previously held the office of Governor-General who would not wish to engage in a spirited and divisive public election; and, following election, it would be difficult for the head of state to fully and completely represent all Australians in a unified way having only achieved a simple majority vote, having not received a vote of all Australians. It would be costly and unwieldy. Having considered the principles supporting the model of parliamentary appointment of the head of state, the working group went on to consider the particulars. First, two-thirds majority; ought the majority of the parliament be a simple majority or a special majority or otherwise? The notion of a simple majority was dismissed. It was felt that, if indeed this model was to achieve its objectives of representing unequivocally bipartite or tripartite political support clearly and unambiguously, it would need more than a simple majority, which meant that the appointment of the head of state could be achieved without the consent or approval of both sides of parliament. The problem with a simple majority is that, in a joint sitting, the party with the majority of the House of Representatives will generally have a majority as there are only half as many senators as there are members of the House of Representatives. To the best recollection of the working group, no Australian government in recent times- and possibly since the Second World War- had enjoyed sufficient seats to give them a two-thirds majority in a joint sitting. Indeed, even the Fraser government in 1975, which enjoyed the largest majority in the House of Representatives in Australian electoral history, did not command sufficient numbers to obtain a two-thirds majority of both houses. It was therefore thought that this was an appropriately high threshold which aligned with existing parliamentary practice relating to the passing of a special majority. Turning to a joint sitting, the issue was raised as to whether the special majority should be obtained in a joint sitting or passed in the usual way through the lower and upper houses. On balance, the majority shared the view that the immense symbolism of a joint sitting and the clear and unequivocal message that this sent to the electorate as to the complete, unified and unambiguous support for the appointment of the head of state justified a joint sitting. Professor Winterton went on to note that there were symbolic precedents for such a procedure in France, although we are not quite sure whether they were in recent times or somewhere around the Revolution. The group considered the question of nominations: how many nominations should be considered by the joint sitting. The group was unanimous in its support for only one such nomination. Any further nominations would not achieve our stated objective of eliminating a public competition of achieving perceived unanimity of attracting candidates who did not want to enter into a public competition. The symbolic appointment of one candidate as head of state in a clear, uncompromised, unambiguous and unanimous fashion so far as possible was the outcome for which we should aim. The working group considered who should bring the nomination. We recommended that it should be the motion of the Prime Minister. We considered a motion supported by the Leader of the Opposition. This was discussed fully but was rejected for two reasons: firstly, because de facto support of the opposition will be required in any event in order to achieve the special majority; and, secondly, a reference to the Leader of the Opposition in the Constitution would be surprising in a Constitution which does not itself refer to the Prime Minister. As to tenure, what should be the tenure of office of the head of state? We considered that the head of state should hold office for five years. The reasons that were given included: it was larger than the three- or four-year parliamentary term and thus did not overlap necessarily with particular compositions of individual governments; it is of itself a substantial time; it aligns with recent terms of office for the Governor-General. We also considered seven years but resolved unanimously that five years was an appropriate term. We also considered that the Governor-General should hold office for one term only, principally for the following reasons: to provide a broader range of candidates and people who can hold the office; and to further eliminate the prospect of the head of state potentially using his position to any advantage to secure a further term of office. We discussed at length the issue: who should be eligible to act as head of state? We talked about politicians and the electorate's love of politicians; we talked about age limitations; and we talked about the minimums that might exist in other Constitutions- the USA and Germany. But, on balance, we decided to take an inclusive view that any Australian citizen should be eligible if they are on the electoral roll. A number of other issues were canvassed but no specific resolutions made. We discussed at length the mode of nominations to the Prime Minister. We were aware that another group was working on this. Our view was that it was unnecessary and undesirable. Whilst we had no final view, it was our expressed preference that there be no formal mechanism by which the Prime Minister obtains nominations but, rather, that we use the same sort of informal procedure that is used today. The reasons advanced for that included that it was unnecessary because, ultimately, it is going before parliament and that will be the ultimate public scrutiny. In any event, it begs the question: who chooses from amongst those nominations in any event? Either the Prime Minister or some further tier of government which would need to be set up in order to make that choice. We discussed gender issues. We had a lengthy and intense discussion about the role of the head of state and gender issues. Everyone recognised that there was an alarming lack of women in the role of Governor-General- none. We expressed the view that this was entirely regrettable. We hope that this would be addressed in any new role. We took note of the resolution of the Women's Convention that there be an equality of men and women as heads of state on an alternating basis; and we accepted that as a principle. We rejected the notion that issues of gender balance be enshrined in the Constitution, firstly, because it had implications for other groups, and, secondly, because we are working on a document that is going to last for centuries and, hopefully, this issue will be non-contentious in the not too distant future. We did, however, endorse the following principle as a principle rather than a convention for any proposed statutory term, and that is point 9:
A majority of the working group supported the principle that the office of head of state alternate between a man and a woman. This principle should not form part of the Constitution but be an acknowledged principle.
We then turned to dismissal and we proposed the following resolution, resolution No. 6:
That the head of state may only be dismissed on the motion of the Prime Minister endorsed by simple majority of the House of Representatives.
In relation to dismissal, we recognise this is a vexed issue. We canvassed dismissal by the same mechanism; that is, by a special majority, a two-thirds majority. This was rejected because it would be unwieldy and difficult. It would give rise to an impasse and the political difficulties of the sort that we are all fully aware. We talked about dismissal by the Prime Minister alone, but we rejected that because it does not have sufficient formal symbolism nor does it have sufficient procedural gravity, although there is clear consequential gravity. We accepted dismissal by a simple majority of the House of Representatives because it required the assent and support of the popularly elected lower House, because as with today the Prime Minister and the government will live with the political consequences, because most constitutions in the world provide for parliamentary dismissal, because by virtue of it going through parliament it is a visible, public and transparent act and because it is visibly accountable. Mr Chairman, there were two further clarifying comments that we wanted to bring to the convention. These are not resolutions; they are clarifying comments. Firstly, comment 7:
The prescription of the special majority, being two-thirds, is on the understanding that the Senate continues to be elected by proportional representation.
Secondly, clarifying comment 8 reads:
A majority of the working group did not support any formal public nomination process for the forwarding of possible candidates for the Prime Minister's consideration.
Mr Chairman, I hope this
accurately reflects the position of Working Group C and I commend
these resolutions to the convention. Thank you. ·=============== Last updated: 21 October 2000 | |||
