The Foundation for National Renewal   The Constitutional Convention of February 1998

Federal Election October 2004: Which Candidates Trust the People?

TRANSCRIPT OF PROCEEDINGS
Thursday, 5 February 1998
Page 5

Mr MUIR- Thank you, Ann, for your kind words. The good Australian dictionary, the Macquarie dictionary, defines a republic as `a state in which the supreme power rests in the body of citizens entitled to vote . . . '. The same dictionary defines a democracy as a `supreme power . . . vested in the people . . . under a free electoral system.' Which is more democratic- that the politicians appoint a president or that the people elect a president? You would have to say the latter, of course.

The people of Australia have consistently expressed their opinion that they wish to elect their president in the event of a republic. This Convention has been billed as the people's convention. One half of the delegates to the Convention have been elected by the people. It would be farcical for this Convention not to give full and due consideration to the views of the people of Australia in considering a move to a republic.

Mr Malcolm Turnbull says that the ARM wanted powers to be discussed early in the Convention so that the so-called weakness of the popular election model could be exposed and put out of the way so that the other models for a republic could be given full consideration. I do not believe that the ARM model or the McGarvie model for the appointment of the president would be acceptable to the Australian people. I believe that these models for the appointment of the president will fail at referendum with the effect that the republican cause will be set back many years in Australia.

How can you explain to the people of Australia that they cannot vote for the president but that the politicians can? Over the last couple of days I have had many people from hotel receptionists to taxi drivers and unknown correspondents urging us at this Convention to fight for a popular election of the president. They want to vote for the president. We should not forget Lady Florence Bjelke-Petersen's bus driver the other day, who said to her that she wanted to vote for the president.

Mr Turnbull has dragged a red herring across the path of those who advocate that Australians should elect their president. This red herring is that the Labor Party in Australia will suffer from a directly elected president working against the interests of a Labor government in the event of the Senate blocking supply. This is a red herring, because a Labor government, or any other government for that matter, faces the same circumstance whatever model of the republic is chosen. In fact, this very thing occurred under our present system of government in 1975. I believe that the popular election model is likely to be a safer model in that the powers would be properly set out in the Constitution and leave less room for argument than that which presently prevails.

One could take this even further and set out in the Constitution that the president could not act in the circumstances where the Senate blocked supply. This would mean, of course, that it would be up to the parliament to resolve the impasse. Why not let the parliamentarians accept responsibility for their actions? The use of an umpire in such circumstances could be a cop-out for the parliamentarians.

Despite the debacle at the end of day two of this Convention, where Working Group 7's resolutions A and B were not carried forward, being resolutions most closely identified with the popular election model, I believe that this Convention should take every step to bring back on to the agenda for full consideration any resolutions which relate to the popular election model.

The people of Australia deserve to have their opinions taken into account in this Convention. Those elected to the Clem Jones Queensland Constitution republic team especially feel duty bound to the people of Queensland and Australia to do whatever they can to ensure that full consideration be given to the popular election model.

Some legitimate concerns have been raised with respect to features of a popularly elected president. We believe that these concerns are met by the provisions set out in the Clem Jones Queensland constitutional team discussion paper distributed at this Convention. An important part of the process of popular election is the nomination process. We propose that there be a presidential nomination council representing interests across state and territory boundaries made up of organisations including the Business Council of Australia, the Australian Council of Trade Unions, the National Farmers Federation, the Aboriginal and Torres Strait Islander Commission, the Students Union of Australia and others. Members of the judiciary and representatives of the various parliaments around Australia would also be included.

Support from 30 out of 100 of these persons will be required to go forward as a candidate. In order to address any concerns with respect to party political involvement of candidates, it is proposed that, at the time of issuing of writs for election, such candidates not be parliamentarians or a member of a political party. It would not be lawful for a candidate to elicit support from a political party.

The popular election method has been criticised for allowing rich candidates to become president. We envisage that the government would fund the campaign of candidates to the extent necessary for the qualifications and individual electoral submissions of the candidates to be properly placed before the electors. Limitations will be imposed on advertising to ensure equality of exposure for all candidates. Campaign advertising would be limited by law so that all candidates should have equal exposure in all media, with the limitation of advertising size in the print media and equal time on television and radio. The publication of material advertising a political party on behalf of and in support of a presidential candidate will be unlawful.

The removal of head of state is often seen to be more problematical than the method of appointment or election. We provide under our model that the president may be impeached for stated misbehaviour. The charges would be referred to either of the houses of parliament of Australia. Effectively, one house of the parliament would prosecute the case and the other house would adjudicate. A two-thirds majority would be required in impeaching the president.

Denver Beanland, the Queensland Attorney-General, has suggested that a Queenslander could not be elected as a head of state under a popular election model. He refers to the appointment of the former Governor-General Bill Hayden and says that such circumstances are not likely to arise again. The reality is that any person elected by the people to be head of state will have a national profile. Whether that person is a Queenslander or from any other state will make no difference as to whether that person has a national profile. Furthermore, we have enough faith in the Australian people to elect the candidate of the highest calibre. Whether that person is a Queenslander, or a Tasmanian for that matter, is not the issue. We are appointing a person to a national position and we want a person of the highest calibre, irrespective of the state in which they reside.

In the early part of our history members of the aristocracy were appointed as Governors-General, including earls and barons. We then went through a period of appointing military personnel, such as brigadiers and field marshals. In the latter part of our history we have appointed lawyers or judges and ex-politicians. It is now time to move on to elect persons from a wider spectrum of our society, persons of the highest calibre who can truly represent our nation as head of state. We want somebody who the nation can embrace, somebody who can elevate our nation onto the world's stage. This can only be achieved to its fullest potential through popular election. Let us take a full-hearted approach to the republic and elect a president by the people. Do not take a half-hearted or minimalist position. Let us embrace change as an opportunity to govern our country better. Thank you.

CHAIRMAN- Thank you, Mr Muir. I call on Ms Karin Sowada to be followed by Linda Kirk.

Ms SOWADA- Thank you for the opportunity to speak today on this important question of the appointment and dismissal of the head of state. We have heard a number of proposals over the last day or so. I think we are starting to whittle them down to some workable ideas. I hope that we can reach a consensus at the end of the day on the best possible model for an Australian republic.

The Australian Republican Movement support the option of appointing the head of state by a two-thirds majority of the parliament. This proposal has been further developed by Working Group C. A number of speakers have elaborated in some detail on the merits of this proposal, so I will not labour the point again. However, I will say this: it is one of the safest methods for ensuring that the position of president retains the same powers enjoyed and exercised by the present position of Governor-General. It creates an open and transparent process whereby the parliament, the representatives of the people, make a considered and bipartisan decision.

Contrary to what some have already said, the two-thirds parliamentary appointment model will not result in a US Senate-style scrutiny of potential candidates. The Prime Minister would make one nomination to the parliament, which would undoubtedly have the support of the opposition to guarantee success. The level of debate about potential candidates would be no greater than the current scrutiny of potential High Court judges and potential governors-general. Certainly we could expect much less public debate and scrutiny than an election for archbishop in the Anglican Church.

We had three working groups discuss and consider the option of direct election. I oppose this model, not because I want to shore up the power of politicians but because I believe a direct election is unworkable and unwise within the Australian context. Despite our best efforts, a direct election would have the outcome that those who are fed up with politicians would dread- a politician would certainly end up in the job. The Irish presidential system is often held up as a model for direct election here. It should be noted in the words of the RAC report that, `Every candidate nominated since 1938 could be said to belong to the political elite in so far as each had previously either sought election or been appointed to the Irish parliament.'

Phil Cleary in his election campaign speech the other day highlighted the candidacy of former Irish President Mary Robinson. Most agree she was an outstanding president, but she was a member of the Irish Senate for 20 years prior to her election. What is more, according to the RAC report, she was approached to run by the Irish Labour Party. Surely this outcome would be an anathema to those here and in the wider community who support the cause of direct election.

As in the American system, election campaigns would become the domains of political parties and those with money who could afford to run. It would ensure that with a popular base of support, the office of president would come to rival that of the Prime Minister's. In time, with political parties involved, the campaigns themselves would inevitably become politicised.

Is this what the Australian people want? It is for them to decide ultimately, but such an outcome is at odds with a general desire to depoliticise the process. Under such a circumstance, without complete codification of the reserve powers of the head of state, direct election is at odds with our system of government. It is probably unfortunate that the term `president' has been used in this debate because it is, in the minds of many, synonymous with the American political system. I have no problem with retaining the term `Governor-General', particularly if in an Australian republic state governors retain their own title.

But the American system of direct presidential election is one with which most Australians are familiar. American elections receive wide media coverage to be sure they are unique events. I had the privilege of attending the Democratic Party National Congress in Chicago last year. There is surely no greater spectacle or celebration of democracy at work, but we should not let a superficial understanding of the American system delude us into believing that this model is right for Australia. Their system of government is very different from ours, as the president occupies a different role as both head of state and head of government. However, this does not mean that this option should not be put on the table here and examined, particularly as a large number of Australians find it attractive.

What we need to have is a proper model for debate. Working Group F has made a serious attempt to do so, but neither of the reports from the direct election of Working Group A, of which I was a member, and Working Group B discuss the method that might be used to dismiss the head of state. Neither report addresses the question of how the election process might produce a result.

Firstly, the direct election supporters have to address the question of how the process will not deliver a politician or an ex-politician without a punitive exclusion clause. Secondly, we have to ask the question whether it is fair to include such a provision at all. Is it fair to exclude politicians or ex-politicians from the process, in the same way that section 44 of the Constitution currently excludes public servants- a provision that many people feel is manifestly unfair? I hope that the groups considering further constitutional change might address this. An exclusion clause for politicians or ex-politicians would be at odds with the general desire to have a preamble reflecting Australian values of equity and a fair go.

A journalist covering this Convention has already highlighted a paradox of what people say they want and what Australians vote for. A large number of ex-politicians put themselves up for election to this Convention, including me. People have the option of not voting for those candidates. But the reality is that they were supported in large numbers. How many of the elected delegates here are former state or federal Mps currently serving or former members of local government? I counted at least 27 at a quick glance.

So how do we move forward? How do we reach agreement on a model which embraces the aspirations of Australians to have their say in selecting a head of state without creating a fundamental power shift in the Australian model of government? Perhaps we should look at a process of public consultation and nomination which might produce a name worthy of support by a two-thirds majority, or a 75 per cent majority, of a joint sitting.

The method of dismissal could be in accordance with the McGarvie model, and certainly this latter suggestion of dealing with the dismissal process is very attractive to many delegates. I note that Working Group C decided against this idea, but I would like to place it on the table again at this forum.

How might the nomination process work? Nominations could be made to a specially constituted, bipartisan parliamentary committee, with representatives drawn from the states, to sift through the nominations made by the public. Such a council has already been floated by Working Group C. Nominations could be made in the form of a petition, with a minimum number of signatures, say, 50 or 100, or it might be proper to take single nominations from individual members of the public. It would then be the task of the committee to examine these nominations to arrive at a short list for consideration by the Prime Minister and the Leader of the Opposition.

There would be no public hearings or official investigations of candidates, thus avoiding the US style ratification system, which I believe most delegates would find unsupportable. A single nomination would then be moved by the Prime Minister and seconded by the Leader of the Opposition at a joint sitting.

I urge delegates to consider this as an additional model for appointment and dismissal. It allows for an element of public participation; it allows for a selection of a head of state which will not fundamentally alter the powers of that office; and it provides for a non-political method of dismissal.

At the end of the day, all republicans present at this Convention may have to accept 60 per cent of something rather than 100 per cent of nothing. There is a range of views represented here, and we must earnestly seek the option which best fits our current system. The process of direct election of head of state does not. The two-thirds parliamentary appointment model, proposed by Working Group C, amended to include a process of public consultation, might be the way forward we have all been looking for.

Ms KIRK- Mr Chairman, delegates: this Constitutional Convention presents a unique and exciting challenge to those delegates who wish to see Australia move from a constitutional monarchy to a republic. There is an opportunity to develop a republican model which will not only divest the British monarch of the executive power of the Commonwealth but serve this nation for the new century and beyond.

As a constitutional lawyer, I am honoured to be participating in what is undoubtedly the most important event in our constitutional history since Federation. In developing a republican constitution, we must ensure not only that the strengths of the present system are reproduced but also that we improve upon and enhance existing arrangements. I am confident that, at the end of this Convention, we will have developed a republican model which will be embraced by the Australian people at a referendum.

My remarks today will be limited to the method of dismissal of the head of state under a new republican constitution. I would first like to acknowledge a number of eminent constitutional lawyers who have assisted me enormously in the development of these ideas. The work of Professor George Winterton and the Hon. Richard McGarvie, and the eloquent addresses of Professor Greg Craven at this Convention have been most helpful to me. History will no doubt recognise the great contribution they have made to the debate.

The strength of our present system is that it provides for a stable and secure democracy. The Governor-General is vested with many significant powers under the Australian Constitution, including the power to appoint and dismiss a Prime Minister and to summon and dissolve parliament. In practice, these powers have been uncontroversial because their exercise is tightly constrained by constitutional convention. This requires that the powers are exercised only on the advice of the ministers of the elected government. The conventions are not rules of law and are not enforceable in the courts. The sanction for a breach of the convention that the Governor-General acts on advice is dismissal by the Queen on the advice of the Prime Minister.

If the powers of the head of state in a republic are to be substantially the same as under existing arrangements, then there must be an effective procedure to dismiss a head of state who acts without, or contrary to, advice. While a great deal of time and energy at this Convention has been devoted to discussion of the various methods of appointment of the head of state, a lot less attention has been paid to the important question of how that head of state is to be removed. It is often assumed, for no apparent reason, that the method of removal of the head of state must mirror that of appointment. For example, the Keating model provided for appointment and removal of a head of state by a two-thirds majority of a joint sitting of parliament. This has been the preferred model of dismissal of a head of state of the Australian Republican Movement. However, most people have recognised that this is most unlikely to be effective to remove a head of state as no federal government for 50 years has had a two-thirds majority and it is political practice in Australia for oppositions to vote against governments. It is even less likely that a motion to remove a head of state would be supported in circumstances in which he or she is acting contrary to the government's interest.

There has been very little discussion by those who support a popular election of a head of state as to how that head of state would be removed. If the method of removal were to mirror that of appointment, then a referendum of the people would be required. Apart from the delay that this would involve in a referendum if it were to be similar to the process in section 128, it would first require the passage of legislation through both houses of parliament. Such legislation would be most unlikely to pass in the event that the government faced a hostile Senate which supported the actions of the head of state.

If the method of removal of the head of state is by either a special majority at a joint sitting of parliament or by the people, the head of state may be, effectively, undismissible in circumstances in which he or she refuses to act on government advice. The extensive powers exercised by the Governor-General now could, if transferred to a republican head of state who is effectively undismissible, lead to obstruction and frequent constitutional crisis. A head of state elected by the people could decide that he or she is bound to act contrary to advice in circumstances where he or she perceives it to be against the interests of the people: for example, by refusing to assent to legislation.

It is for this reason that there must be a mechanism in a republican Constitution to ensure the prompt dismissal of a head of state who acts to obstruct or collude with a government to subvert the democratic process. In his most eloquent address yesterday in the chamber, Professor Craven outlined the three republican models that he believes should be seriously considered by delegates in their deliberations. These are the McGarvie model, the ARM's preferred model and the so-called hybrid model of appointment.

Beginning with the McGarvie model, the republican model proposed by former Governor of Victoria Richard McGarvie has been outlined by him in the chamber here and has been discussed by many other delegates at this Convention. It is the method of dismissal of a head of state to which I will direct my comments in relation to this model. Under the McGarvie model, the Constitutional Council is bound to act on the Prime Minister's advice to appoint or dismiss a head of state. The sanction for failure to act within 14 days of receipt of the advice is automatic dismissal of the members of the council.

The advantage of the McGarvie model is that it takes the vital power of dismissal of a head of state out of the hands of a foreign monarch with little knowledge of Australian politics and gives it to a body comprised of Australians with recent experience in these matters. With respect, the disadvantage of the model is that it provides little more than a rubber stamp of the Prime Minister's decision to appoint- and, more significantly, to dismiss- a head of state. Although the Constitutional Council can provide advice and counsel to the Prime Minister, it must act on advice or face instant dismissal. This model gives exceptional power to a Prime Minister who seeks dismissal of a head of state for inappropriate, if not unconstitutional, reasons. As Professor George Winterton has observed, the model gives exceptional power to a Prime Minister who seeks dismissal of a head of state who warns of an intention to exercise reserve powers. This is not unlike existing arrangements if it is the case that the Queen would consider herself bound to act on the advice of the Prime Minister to dismiss. However, unlike the council, the monarch is not subject to dismissal should she exercise her recognised prerogative right to refuse to act on the advice of the Prime Minister to dismiss a Governor-General.

I will now turn to the Australian Republican Movement's model. The Australian Republican Movement has recognised the weaknesses in a method of removal of a head of state which requires a two-thirds majority of a joint sitting of federal parliament. Our preferred method of removal of a head of state is by simple majority of the House of Representatives. We believe that this model promotes prime ministerial government without jeopardising the position of a head of state who warns of an intention to exercise reserve powers. A head of state who acted contrary to advice would be advised of the Prime Minister's intention to recommend a motion to the House to remove him or her.

Under this model there would be need to make provision to prevent a head of state from acting to dismiss a Prime Minister or a government who warned of an intention to dismiss the head of state. For example, there may be a provision to suspend the reserve powers of the head of state pending dismissal in the House of Representatives and/or a removal of the existing power of the Governor-General to prorogue parliament. Under this model, in circumstances where a head of state warns of an intention to exercise the reserve powers as occurred in 1975, dismissal of the president by the Prime Minister alone could not be effected to prevent the exercise of the reserve powers, as is the case under the existing arrangements and also the McGarvie model. The parliament would have the opportunity to hear the reasons for the dismissal of the head of state and the Australian people could make their judgment as to its appropriateness at the next election.

(Extension of time granted)

The third option suggested by Professor Craven yesterday is the hybrid model. This provides for appointment by two-thirds majority of a joint sitting and removal by the Constitutional Council. There is no logical reason why appointment and dismissal of a head of state need be by the same or similar body or method. In fact, there is an argument that the body that appoints should not remove a head of state.

Under the McGarvie model, it is conceivable that the Constitutional Council could appoint a head of state who refuses to act in accordance with government advice and who must therefore be removed by it. If this were to occur shortly after the head of state's appointment, the same men and woman would be involved in the decision to remove.

Delegates may be persuaded to consider limiting the role of the Constitutional Council to providing advice to the Prime Minister before a decision was made by the parliament to remove a head of state. If this model were adopted, the council would be limited to act only in times of constitutional crisis. This is a variation on what Professor Craven suggested yesterday. The council would not make the decision to dismiss; it would merely provide advice to the Prime Minister before a decision was made by the parliament- the House of Representatives- by simple majority to dismiss a president. This would promote prime ministerial government and the supremacy of parliament.

The knowledge and skills of the members of the Constitutional Council, being former governors-general, governors and justices, would be applied to provide counsel and guidance to a Prime Minister in delicate and difficult circumstances. Under this model, the council would not be involved in the decision as to who should be chosen as head of state. This should meet the criticisms of many delegates that the council would be an unrepresentative- even elitist- body. Its composition would not be of such significance if its role were limited to counsel and guidance in the decision by the parliament to dismiss a head of state. Delegates may even consider widening the role of the council to include a power to advise a head of state who was considering an exercise of the reserve powers. The Constitutional Council would be likely to be seen by the public as an impartial umpire due to its constitution and automatic selection.

I conclude by saying that there is room for creativity in the design of a model which will replace the existing system with procedures that are uniquely Australian. I urge delegates to take up this challenge.

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Last updated: 21 October 2000