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 4

CHAIRMAN- Thank you very much, Professor Craven and Ms Bishop. I now call Dame Leonie Kramer to present the recommendations on behalf of Working Group E.

Dame LEONIE KRAMER- Fellow delegates, my experience of the last few days has convinced me that it is extremely difficult to digest a great deal of detail in these particular sessions and committee reports, so I am going to confine myself to making quite a brief general statement about group E's conclusions which, in any case, you have before you. There are a few minor amendments, which I have given to the chairman in advance, and they will be circulated in due course.

Option E, which is the only one I intend to speak about- that is to say, the McGarvie model which replaces the Queen with a special Constitutional Council- was considered by group E to be the one option least likely to cause public controversy and political debate. It is, however, not without its defects. Retired governors-general or state governors or High Court judges or other eminent Australians are not necessarily those best qualified to appoint a Governor-General. That may sound a rather strange statement, but I will try to explain it.

Since their own past experience might well affect their views about the suitability of the person nominated by the Prime Minister, I believe there is a significant risk in assuming that those people would in fact be suitable people to make appointments. It is also questionable whether people, even one removed from office, should have a role in appointing their successor. In any case, they might themselves be subjected to public debate. Confidentiality in such an appointment is absolutely essential, and it is the only fair way to treat those people who might be aspirants for a position. Members of the council would undoubtedly be exposed to intense pressure from the media and members of the public which could well taint the process. I have to observe that all of us here in this chamber today are well aware of the influence of the media on these proceedings.

The problems identified in the methods of appointment proposed in A to E would be considerably greater if any one of these alternatives were used for the dismissal of the Governor-General. Members of the public could protest if their favourite candidate under A, B or C were not successful. Disappointed aspirants for the position could institute legal action against the government or against one or more of the members of the special Constitutional Council unless they were provided with some kind of protection or indemnity.

For these reasons and for others, group E concluded that none of the proposed alternatives for choosing a head of state was acceptable considering the risks involved in changing the existing system, which has the virtue of removing the appointment, as distinct from the nomination, from the political process. This method that we have now is analogous to that frequently employed in senior appointments, executive or non-executive, where the search for a suitable person results in a nomination which is then ratified by a higher authority. No analogy is exact, but that is fairly close. Our current system of appointing the Governor-General has the additional advantage that a higher authority, namely the monarch, is entirely removed from the local political considerations which might have influenced both the nomination and the conditions under which an appointment would otherwise be made.

May I conclude by reminding you of the first day's speech by Mr Mye from the Torres Strait Islands which I believe to be a conspicuous, constructive contribution to this debate, though I have not heard it mentioned since. He comes out of a context which is strange to most of us delegates here in this Convention. I believe that we should take his views extremely seriously. Therefore, I would like to read the last paragraph of his speech. He said:

The process of change would be expensive, disruptive and unsettled if it is a process which pursues changes for the sake of change. I believe the current system of government has served this nation well since Federation. We know it, we understand it and it meets the needs of my people. We are not afraid of change, provided we can see an advantage to the people.

In saying that I believe Mr Mye spoke not just for the Torres Strait Islanders but for all of us.

CHAIRMAN- I now call on Mrs Chris Gallus MP, who will present the resolutions and recommendations of Working Group F- `Popular election from a small group of nominees selected by a specially constituted council'.

Mrs GALLUS- Convention delegates, this resolution is in three parts. Part one:

That two-thirds of a joint sitting of Federal Parliament elect a `head of state appointment body' of ten people that is gender balanced, and composed of people who will have the respect of the Australian people and who reflect Australians in all their diversity.

Part two:

The appointment body will accept nominations and from these select a number of appropriate candidates whose names will be put to the Australian people for election.

Part three:

The appointment body must dismiss the head of state following a vote of an absolute majority in the House of Representatives.

This resolution puts forward a model that should be acceptable to this convention because it not only provides for popular election as Australians have indicated they want but also provides the safeguards this convention has indicated it wants. Under this model there is no possibility of the head of state assuming powers currently held by the Prime Minister and the government because dismissal of the head of state can be effected by a majority in the House of Representatives. While many feel that this gives too much power to the government, the working party felt that the means to dismiss the head of state by the House of Representatives was necessary to ensure that the federal parliament maintained its primacy.

The danger in a popularly elected head of state is the head of state so chosen may, because of the popular mandate, try to assume powers the Governor-General does not currently have and that are not intended by the Constitution. Dismissal by the appointment council following a vote in the House of Representatives makes it clear that the role of the head of state is not to rival the Prime Minister but to act as a formal and ceremonial head of state, to act on the advice of the Prime Minister and his ministers, and to act appropriately in the event of a constitutional crisis.

Today's resolution does not go into the details of the election process itself, but it is important that one aspect of the election is mentioned, to answer a criticism that is often levelled at the process of popular election- that it would invite either wealth or political domination. Control of the process by those with wealth or media connections or special political affiliation can be avoided by prohibiting paid advertising and by providing publicly funded time on electronic media and publicly funded space in print media. The appointing council put forward in this model avoids the discrimination inherent in McGarvie's Constitutional Council which, because it is based on historical appointments, will limit the appointment of women and almost totally exclude those of non-English speaking and indigenous backgrounds, irrespective of the impressiveness of their qualifications.

This model has several advantages over election and dismissal of the head of state by two-thirds of parliament. Firstly, this model allows the people to participate in the choice of the head of state, as they should in a democracy. Secondly, the existing disenchantment of the Australian people with politics, politicians and the political process can only increase if this Convention decides that the head of state is to be elected by politicians and not by the people. Thirdly, this model avoids the situation of the two-thirds of parliament where an opposition can maintain a head of state in power who is set on a course opposed by the government.

I would like finally to congratulate the members of Working Group F, many of whom abandoned personal preferences to arrive at this model for a popularly elected president that safeguards the present system, avoids the problems commonly associated with a popularly elected head of state, and yet still gives the people of Australia the right to participate in the election and choice of their head of state.

CHAIRMAN- Thank you Mrs Gallus. We have now concluded the reports to the Convention from the six working groups. Each of those reports is before us, and we will move in a moment to the list of speakers on the issue of the day. Before I so do, I have received a nomination from the Hon. Richard Court MLA, Premier of Western Australia, of the Hon. C.J. Barnett to serve as his proxy and from Sir David Smith for Professor David Flint to serve as his proxy tomorrow while he attends to a funeral.

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Last updated: 21 October 2000