The Foundation for National Renewal   The Constitutional Convention of February 1998

Federal Election October 2004: Which Candidates Trust the People?

TRANSCRIPT OF PROCEEDINGS
Wednesday, 4 February 1998
Page 3

CHAIRMAN- Thank you, Mr Vizard. We have two speakers for Working Group D, appointment by the Prime Minister or a special council nomination by the Prime Minister, I believe Ms Julie Bishop will be the first.

Ms BISHOP- Our working group considered the model formulated by Mr McGarvie in answer to the question: if there is to be a new head of state what should be the arrangements for appointment and dismissal? We considered another option- appointment or dismissal by the Prime Minister alone- but not for long. While there was no suggestion that our prime ministers would not continue to appoint appropriately qualified people, this process appeared too partisan for us to take it further.

The second option- appointment or dismissal by a specially constituted council acting with the advice of the Prime Minister- received our diligent consideration. While there was not unanimity on the detail, everyone present showed great interest in the model. It has appeal for monarchists, for republicans and for those who believe in change but not for the sake of change. For those who champion direct election as the most democratic method of choosing a head of state, this model, which features appointment by the people's elected representatives, is also democratic.

Even if this model were not the preferred option of everyone in our working group, everyone, including representatives of the ARM, without necessarily endorsing the model was supportive of the view that this simple and straightforward model must remain on the agenda throughout the next seven days to enable every delegate to try this model on for size- see how it feels, see if it fits; a little tight here, a little loose there- to see if we can wear it.

As not everyone is familiar with all aspects of this model I will attempt to do justice to its simplicity by explaining how we saw it working, and Professor Craven will address some of the issues arising from our deliberations. We tested the model this way. There has been widespread recognition that, in general, our current constitutional system of government has served us well. So what are the features from that system surrounding the relationship between the head of state and the head of the elected government that ought to be preserved in any new arrangements?

Firstly, under our current system the Governor-General is the head of state of the Commonwealth acting as the Queen's representative and in that capacity exercises the powers and functions of the head of state. In the proposed model, those same powers and functions are transferred to a new head of state, the Australian Governor-General, who is acting in his or her own right. The Governor-General becomes the actual rather than the de facto head of state. This new head of state continues to do the same things in the same way subject to the same conventions, constraints and expectations surrounding the exercise of those powers. That is step one.

Secondly, currently the Queen's one active duty- appointing or dismissing the Governor-General on the advice of the Prime Minister- is seen by some as a formality but still as a critical component of the exquisitely delicate balance of powers between the head of state, who must have powers, and the country's elected head of government. In this proposed model, the duty of appointing or dismissing the head of state with or upon the advice of the Prime Minister is retained but is to be exercised not by a monarch but by a thoroughly Australian constitutional council. I will turn to its composition shortly. That is step two.

The check that currently exists whereby the Queen appoints or dismisses the Governor-General on the advice of the Prime Minister would transfer to the Constitutional Council. This council would have no greater or no lesser role. It would not select or nominate the head of state but it would act as a point of reference for the Prime Minister when nominating a head of state. It could advise, counsel or influence the Prime Minister in the choice of head of state but not more; the people's elected representatives would continue to have the say.

The Prime Minister, no doubt after careful consultation with parliamentary colleagues all mindful of their responsibility to the electorate, would nominate a suitably qualified person to be the head of state, and the important step of having the actual appointment or dismissal carried out by, in this model, a constitutional council, is that it would retain the checks and balances.

As to the composition of the council, it is to compromise people familiar in the ways of constitutional restraint and convention, people who have an understanding of the limited nature of their role as a safeguard without delusion as to why they are there but who have an appreciation of the significance of the subtlety of their presence. Mr McGarvie proposes that three members comprise the council. No-one will directly select or appoint them. They will be chosen by a constitutional formula which will ensure that the composition of the council is drawn automatically from a category of persons, being former governors-general, then former state governors, former judges of the High Court and the Federal Court, in the order of their retirement from those positions. From that pool the places would go first to governors-general with priority to the most recently retired and so on.

This model also makes provision for the inclusion of women on the council. If there were not a woman eligible for a position within the first three places, a provision would exist in the formula for as long as it would take for a sufficient number of women to be in such positions to ensure their inclusion. So if there were no women in the first two places filled, the third place would go to the woman with the highest priority among the eligible persons.

Governors-general and state governors over the years have come from many walks of life and from vastly diverse backgrounds and they would seem eminently suitable to be members of this council. So let us stand back and see how this fits. The Prime Minister, as the leader of the government elected by the people, nominates the head of state. That nomination is sent to the Constitutional Council for formal appointment of the Governor-General for an assumed five-year period at pleasure. In that process, the council could seek to advise or suggest- hopefully, our female member on the council would be suggesting it was time for a female head of state.

The Governor-General would be dismissed if the Prime Minister advised the council to do so. The Governor-General would not have legally enforceable tenure but would have political security. After all, governments are made and unmade by public opinion. The Governor-General is there for the people and the people regard the Governor-General accordingly. If the Prime Minister advised the dismissal of a Governor-General when the people regarded that person as complying with the expected role, the Prime Minister would lose any support and would lose the trust of the people. There is, of course, great incentive for the Governor-General to act in accordance with the people's expectations, for a failure to comply, for example, with constitutional conventions surrounding the exercise of reserve powers could lead to dismissal from the position of head of state: the ignominy would be a strong disincentive.

Finally, the Constitutional Council's duty is to appoint or dismiss the Governor-General upon the advice of the Prime Minister. Should the council refuse to act upon that advice within a reasonable period, the members of the council would automatically cease to hold office and would be replaced by the next eligible members from the pool.

With this model what you see is what you get. It has relative simplicity. It is familiar. We have seen a model like this, albeit with a monarch and not, as with this model, an Australian head of state with an Australian constitutional council. We have seen how it could work.

Professor CRAVEN- My instructions are to elaborate upon the advantages of this model and suggest that the principle objections to it are unfounded. If one wanted a generic name for that model it might well be `the straightforward republic'. On the basis of the working group's discussions, it emerged that there are certain criteria that any republican model must have, including this, and that all alternative models must be tested against those criteria and it is well that they should be stated now at the outset of this part of the convention's discussions.

The first is practicality. Any system must actually work, not in theory but in practice, and, what is more, demonstrably. We must know, not guess, that it will work. Secondly, it must be consensual. It must attract the widest possible range of support among monarchists, republicans and those who are not sure of their position. Thirdly, it must, above all other things, be saleable at referendum. Our working group's view is that this model meets admirably all those criteria and we set it against, through the course of this convention, any other alternative.

In light of those three criteria, what are the advantages of the straightforward republic? First, it is a lean republic. There is nothing unnecessary in it. It is truly minimalist. It does no more and no less than achieve the republic. It will appeal to anyone who wants the republic and nothing but the republic or to a monarchist who is prepared to accept a minimalist republic. It is entirely predictable. It reflects our present system. We know how it will work.

Crucially and above all else, there is no danger of a rival popular head of state emerging to challenge parliamentary democracy. Why? Because the sanction of effective dismissal is retained. The Prime Minister, through the council, may remove the head of state. No other model yet put to this Convention has solved that crucial question, and I any model which proposes to do so I believe will inevitably have to move towards the McGarvie model. There may be fertile ground for discussion in that area.

The model delivers the republic. Let there be no question about this. The model is for a republic without the Queen. There is real hope, as I think we saw in spades yesterday, for consensus here: consensus among the concerned, consensus among republicans and consensus among monarchists. If this model is not seriously considered, there will be many in this Convention who from that point are effectively sidelined. Above all, this model can win a referendum.

What are the objections put against it? The most obvious one is the general objection: we just do not like it; it just does not grab us. It was put at our working group yesterday that it brings to mind Winston Churchill's comment about democracy: there is no doubt that this model is the very worst before the Convention, except for all the others. It said that there is no popular involvement. This is gravely overstated. The effective choice here is that of the Prime Minister. The Prime Minister commands a majority of the House of Representatives. That does not walk through the door. It comes from free elections. Let us face it: the Prime Minister of this country can effectively start a war without a popular vote. Why are we so worried that he or she could not appoint, or have a council appoint, a head of state? So let us not overstate the popularity poll point.

Perhaps the main point that I have heard is, effectively, that the council is boring. We would like an exciting constitutional system, forgetting that the old Chinese proverb `May you live in exciting times' is in actual fact a curse. The council is meant to be boring. The council is meant to act in the habit of considerate obedience to put forward, in accordance with the conventions, the nominations for both appointment and dismissal of the Prime Minister. We are told it is elitist. If the council were to have any significant independent power, that may be so; but, as my colleague Ms Bishop said, it is a reference point, not a tier of government. The true influencing factor in appointment is not the council but the Prime Minister. The Prime Minister is not elitist; the Prime Minister is elected.

It is said, of course, that this proposal is unsaleable at referendum, partly because the people are in favour of a popularly elected president. The first point is that the people are not in favour of a popularly elected president. The people have assumed a popularly elected president in the absence of argument on this point.

Mr CLEARY- Oh, you put them straight, Greg; you know better.

Professor CRAVEN- I would put you straight, Phil, but it would take a long time. The point is that, in the case of a two-thirds majority or another proposal that does not involve popular election, it is unlikely to be any more popular with the people, if Mr Cleary is right, than the proposal being put forward here. The crucial point is this: I believe that any other model that is put forward at referenda is likely to be a declining model. It will get less support as its problems become more obvious. This is a model which will get more support as its lack of problems become more obvious.

I think the position of the working group is this: we believe that this is a crucial model to be considered by this Convention. It is a model that gives to republicans their very best chance of a successful referendum. It gives to monarchists the appalling question that I believe all of the Convention must face: if not this, then what?

Brigadier GARLAND- The status quo.

Professor CRAVEN- Because the `what' is not the status quo. The `what' is another five years of destabilising disaster for the Australian Constitution- a proposition that could not be considered by anyone who truly believed in that Constitution.

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Last updated: 21 October 2000