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 7

CHAIRMAN- I now call Mrs Christine Milne MHA, to be followed by the Hon. Jeff Shaw.

Mrs MILNE- Friends and fellow Australians, if there is to be a head of state, what should be the arrangement for appointment and dismissal? Normally, that is a complex question, but the answer today is simple: ask John Howard, Malcolm Turnbull and Gareth Evans, acting as proxy for Kim Beazley, because there is already an agreement between these three white, middle-aged Anglo-Saxon men that the nomination for an Australian head of state will be ratified by the parliament on the advice of the Prime Minister and can be dismissed by a simple majority of the House of Representatives. If they had their way, the debate would be over.

Executive government in this country is so dominant and all-pervasive that this critical question has already been decided. And it has been decided by the ruling elite to preserve the existing concentrations of wealth and power in Australia. Why have a Constitutional Convention if, on its second day, the options regarding the powers and therefore the method of election of the head of state were to be so swiftly curtailed by what amounts to deals by factional leaders speaking on behalf of people who were elected to have a mind of their own?

When people voted in the election for delegates to this Convention, overwhelmingly they voted either for a republic or for a constitutional monarchy. I have no doubt that republican voters expected that the Australian Republican Movement would be open to the ideas of the Convention and to the people of Australia here at this Convention. They will now be stunned to learn that yesterday Malcolm Turnbull allowed a conscience vote on a particular resolution, clearly indicating that the Australian Republican Movement delegates do not have discretion on all issues. I wonder if the Australian people ever thought, when they voted, that their only option for a republic would be restricted to the republic of John Howard's imagination, and that the lowest common denominator would prevail in acquiescing to it? If ever the tyranny of mediocrity was to be resisted it should have been here in this Convention on the future of Australia and the future of our Constitution.

Yesterday's vote on the options was a carefully contrived political manoeuvre to deny the Australian people a say in their own democracy and to reduce their involvement in the choice of a head of state to the category of consultation by the Prime Minister. After two decades of consultation on lots of issues, the people of Australia know that consultation means a tiresome and time-consuming process which delivers only what the government wants. Those of us in the environment movement are more familiar than most with being involved in endless consultation processes which end only with tinkering at the edges and never fundamental change. Part of what is wrong in Australia at the moment is the widespread belief, by ordinary people that, no matter what they think, the political process is unresponsive. How must these Australians who wanted to elect a head of state feel today? The two questions of power and methods of election are seen as being closely connected, so to quash debate on a reduction of the powers of the head of state was therefore to quash debate on the possibilities or options for popular election.

For the Australian Republican Movement to join monarchists in denying such a possibility is staggering. However, in spite of an apparent victory on the question of a properly elected president, I reject the notion that the debate on popular involvement in the nomination and election of a head of state is over. Is it not possible that the existing powers of the Governor-General, with partial codification, could not be bestowed on a new head of state elected by popular election? Why not? The answer is because there is an unspoken view that we do not trust the people to exercise judgment and discretion in terms of a suitable candidate to fulfil the role and functions of a head of state. So I ask then: why do we trust the people to elect a person to run the country and exercise the powers of a head of government?

If ever there was an argument for a popularly elected president, it was yesterday. How else, but by popular election, are we ever to achieve sufficient independence for our head of state from the legislature and the government of the day? As Harry Evans has said:

All the schemes for election and appointment of the Governor-General by the parliament involve the Governor-General in effect being appointed by the government of the day. They are really only a gloss on the system allowing the Prime Minister to appoint the Governor-General. A parliamentary system, in my view, cannot work unless the head of state, that is, the umpire in the system, has sufficient independence from the government of the day and from the legislature, and that means direct election.

Harry Evans goes on to say:

I think it's highly desirable to have somebody with another source of political legitimacy and a separate source of political power. The whole idea of constitutional government and the whole idea of republican government is that you don't allow one person or one body of persons to become the sole repository of power.

I know the arguments against popular election, and I share some of the concerns expressed by people about popular election. My concerns are not that someone suitable would not be chosen by the Australian people but rather that such a process would enhance the chances of people with money or party political support and could exclude those people- especially women, indigenous people, people from ethnic minorities and so on- from a fair chance, and that such a process might also even exclude high calibre candidates who would find the prospect of an election campaign demeaning.

But I wanted the chance to hear the arguments. I wanted the chance to listen to the proposals for overcoming those difficulties and not only to listen to them but to have them taken seriously. Now, at best, that will be a sham. We will have a day of talking about it but, as I said, the real decision has been made. I wanted to hear about democratic nomination processes and the mix and match of democratic nomination and then appointment, or appointment and nomination and then popular election. But we are not going to have the complexity that that debate demands.

The people of Australia, I think, deserve better. In a few years, when the pendulum swings back from the Right and a republic is in place in Australia but nothing in Australian society has changed, in their disillusionment the people of Australia will ask: why was the Convention in 1998 so cowardly and persuaded by what was not possible rather than inspired to choose a preferred future and find a way of getting there?

Finally, I would like to ask you to consider this quotation from Lewis Carroll's Through the Looking Glass:

"I can't believe that," said Alice.

"Can't you?" said the Queen in a pitying tone. "Try again, draw a long breath and shut your eyes."

Alice laughed. "There is no use trying," she said. "One cannot believe impossible things."

"I dare say you haven't had much practice," said the Queen.

I urge delegates to set aside conservatism, to stop finding reasons to quash innovation, and to stop the caucusing which prevents you from actually listening to what other people have to say and taking it on board. I ask you to dare to believe in what is rapidly becoming an impossible thing: a truly democratic republic of Australia reflected in fundamental reform of the Constitution.

Mr SHAW- While the issue of the powers of the head of state that we dealt with yesterday might have been the most conceptually difficult of the Convention's issues, I think the issue of appointment and dismissal has proved to be the most controversial. Could I just crystallise the three options: firstly, the appointment of the head of state by a constitutional council- the McGarvie model; secondly, popular election of the head of state; and, thirdly, the election of the head of state by a two-thirds majority of a joint sitting of the federal parliament.

In relation to the Constitutional Council, obviously it would involve minimal change and would be inexpensive. However, given the reserve powers which would most likely still reside in the holder of the office, I believe that there are real difficulties and risks in leaving the appointment in the hands of what would be essentially an unelected, unaccountable oligarchy. It is clear that the community expects the process of selection to be transparent and for there to be a measure of popular input. So whilst I appreciate the arguments for that option and it has obviously been put forward in the utmost good faith, I think there are practical problems and problems of principle about it.

As for the popular election, that has a simplistic, romantic attraction. We are told that that is what the people want. According to opinion polls, it is the most favoured method of selecting the head of state- certainly it would give every eligible voter a say in the process. But there are significant drawbacks which I believe should cause us to pause and consider whether it really is the optimal way forward.

It would obviously be expensive. The logistical difficulties of nationwide campaigns and the attendant costs would mean that the only realistically viable candidates would be those from major political parties or those with access to substantial funds- the independently wealthy, or those who are representatives of powerful vested interests. As other speakers have eloquently put, there is the danger of creating a rival power centre to that of the elected government. I would like to refer to the warning on this point given in a treatise on federal government by Madison and Hamilton, published during the negotiation and creation of the American Constitution. They wrote:

Wherever two or more persons are engaged in any common enterprise or pursuit, there is always danger of difference of opinion. If it be a public trust or office in which they are clothed in equal dignity and authority, there is peculiar danger of personal emulation and even animosity. From either, and especially from all these causes, the most bitter dissensions are apt to spring. Whenever these happen, they lessen the respectability, weaken the authority and distract the plans and operations of those whom they divide. It might impede or frustrate the most important measures of the government and in the most critical emergencies of the state. What is still worse, they might split the community into the most violent and irreconcilable factions.

This danger would be significantly increased, of course, if the powers of the head of state were left intact and unrestricted. This would be tantamount to effectively transforming our system of government. One consensus that I believe is discernible around this Convention, although not universally held, is that our system of government works well and ought to be maintained without radical or unnecessary change. An election which results in a narrow win for a candidate, especially if the contest is bitter, would then make it impossible for the victor to be a politically neutral and unifying symbol of the entire nation, which is precisely what the occupant of this office must be.

Some have argued in favour of direct election on the basis that it will give power to the people and will threaten the dominance of the main political parties. I believe that is, with respect, naive. If the people elect their parliamentary representatives almost exclusively from the ranks of political parties, they will also elect their head of state from the candidates put forward by the political parties. The elected head of state will give no more power to the people than the people's elected parliamentary representatives already provide.

The preference for popular election stems in part from an alienation from politics and a desire to bypass politicians in choosing a head of state. That dissatisfaction is a serious matter in Australia today but, in my view, it is not resolved by the direct election of the head of state. Although the public must ultimately take responsibility for the people elected, the political system as a whole, including the parties and politicians, should take note of the public's negative view of the system and work to improve it.

In my view, the best means of appointing the head of state is to have a joint sitting of the parliament and require a candidate to secure two-thirds of the vote at that sitting. In effect, the election within parliament will be a ceremonial process. The political parties represented in parliament will need to negotiate between them a candidate who commands as broad as possible support. A head of state so chosen will command at least bipartisan support and will be a unifying and impartial figure. The head of state will not feel like he or she has a mandate to act independently of the government. This will assist to maintain our system of Westminster government which has served us well to date.

Some have suggested that the method of direct election could also have the potential result of the head of state believing that he or she has a greater mandate than that of the Prime Minister. I think that view is misconceived. By being elected indirectly by a special majority of the parliament and by being accountable to the directly elected representatives of the people, the authority of the office of the head of state would be dependent on the authority of the parliamentarians. This would assist in ensuring that, although being above politics, the position of head of state would not assume the role of being above the government of the day.

May I turn to the issue of dismissal. Regardless of the mechanism by which the head of state is elected or appointed, dismissal should be by way of parliamentary removal. The determination should be made by a simple majority of the House of Representatives.

A question arises as to the grounds for dismissal. I do not believe the grounds for dismissal should be specified. The Prime Minister and the party from which the Prime Minister is drawn would be very unlikely to dismiss the head of state, despite there being no threshold finding of fact to be established. The electorate would hold the government responsible for any capricious or unreasonable dismissal.

If the Convention were to decide that the Constitution should provide a guide or a ground as to when a head of state should be dismissed, I think that some analogy is provided by section 72 of the Constitution which covers the removal of federal judges, including High Court judges. The formula in that section is `proved misbehaviour or incapacity'. This does not predetermine what facts amount to `proved misbehaviour' but, in any particular case, allegations of misbehaviour will depend on some allegations of fact which need to be demonstrated. This broad expression would include: crimes, the betrayal of public trust, as well as violation of the Constitution.

If the Convention does decide that there is some preliminary finding of fact needed- such as misbehaviour- before dismissal occurs, neither house of parliament is an appropriate body to make such a finding. A better approach would be to appoint an ad hoc committee or commission drawn from outside the parliament. This body would be provided with terms of reference framed in such a way that its task is strictly limited to preliminary findings of fact. The question as to whether the facts once found are sufficiently serious to constitute grounds for removal should be determined exclusively by the parliament. Within the parliament, the relevant determination should be made by the House of Representatives in accordance with its standard procedures. During such a process, the power of the head of state to dismiss a government or to dissolve the parliament without or contrary to the advice of the government of the day should be suspended. Otherwise, a head of state under the cloud of investigation for some alleged wrongdoing or incapacity could seek to escape the mechanism of accountability by causing a precipitant election.

In conclusion, I believe that the parliamentary appointment method contains the correct balance between the desire to maintain the best features of our current constitutional arrangements and the introduction of democratic input into the selection of an Australian head of state. The system of removal that I have outlined makes the Australian head of state accountable to the people of Australia through the majority of their parliamentary representatives. Thank you.

Previous Page
Next Page

·=============== ===============·

Last updated: 21 October 2000