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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.
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