Foundation for National Renewal     The "Model Constitution" Activity

Federal Election October 2004: Which Candidates Trust the People?

The time is fast approaching when we in The Foundation for National Renewal must bite the bullet and decide whether we want to become a Republic or retain the Monarchy. More specifically, we will need to decide whether we should draft our ‘Model Constitution’ to fit current Head of State arrangements or whether we draft it to suit a democratic Republic. However, before we can take that decision we need to be sure we have devised the systems necessary to make a republic work if that is the way we decide to go.

In the Constitutional Convention and in the debate leading up to the referendum in 1999, the public made it obvious that, if we were to become a republic, they did not want a President appointed by politicians. According to polls conducted by The Australian on the weekend 6-8 Feb 1998 and published on 10 Feb (page 6), 66% of respondents preferred to elect the president compared to 17% who preferred the option of having the parliament elect the President. This is generally interpreted as indicating that the People see a republican President as exerting some sort of check on politicians.

The Presidential Nominations Committee Bill 1999* (designed to come into effect if the Republic Referendum passed) provided for the creation of a committee to supply the Prime Minister with a short list of candidates. The Prime Minister would select a candidate from the list and have his selection seconded by the leader of the Opposition. The selected candidate would become the President of the Australian Republic when affirmed by a two-thirds majority of a joint sitting of the Parliament. The Nominations Committee was to consist of:

1. Eight members of the Commonwealth Parliament selected on the basis of political party representation in the Parliament.
2. One member from each of the eight State/Territory Parliaments.
3. Sixteen “Community” members appointed by the Prime Minister.

*Downloaded from www.dpmc.gov.au/referendum/presnom.html (not now available)

The Government proposals were rejected by the People voting in the 1999 Referendum.

A very vigorous debate before, during and after the Constitutional Convention identified other very clear public perceptions on the question of the President. Not only do the People want to directly elect the President, it is apparent that direct election of our President will only be accepted and be successfully implemented if certain criteria are met. These criteria can be listed as follows.

1. The system must ensure that all citizens have equal chance of nomination and election and that there is no bias towards politicians, or towards citizens from the more populous States or towards urban citizens.
2. The system must be designed in such a way that worthy candidates are not “frightened off ” by the prospect of a bruising public election “brawl”. At all stages of the election, the dignity of candidates must be preserved.
3. The system must ensure that personal wealth cannot be a significant influence in the election.
4. The system must equally ensure that access to donations from wealthy contacts cannot be a significant influence.
5. Furthermore, the system must ensure that persons already in positions of power and influence cannot bring that power to bear to unduly influence the election.
6. Last but not least the system must ensure that the person elected to be our “Head of Government” must not be a party political person.

Recent debate could lead one to believe that the concept of a directly elected President is a radical move and/or could lead to an American style of government. Nothing could be further from the truth. In fact, of the 170 sovereign countries in the world with a directly elected legislature, 38 have a monarchy and 132 are republics. Of the 132 republics, 41 have a politician-chosen president and 91 (69%) have a popularly elected president. ("Direct Presidential Elections: a World Summary" by Andre Blais and others from the University of Montreal.)

Task 7 revealed a distinct dissatisfaction with the current structure of government and a desire for quite radical change. The preferred change was to a two tiered system of government (a National Government and approx 100 Regional Governments) provided there was also an opportunity for local communities to have influence over their own areas.

In Task 11 your responses indicated support for a clear separation of powers between the Legislature, the Executive and the Judiciary. There was also general support for the concept of the “Governor General” being the Chief Executive and for the Heads of government departments being the members of the Executive. Such a plan would make the “Governor General” our “Head of Government”.

In Task 22 we examined in more detail the role, function and powers of our “Head of Government”. The impression gained from all these tasks is that there is general support for a Head of Government different to what we have now with the Prime Minister. However, it is also apparent that this new Head of Government would have many of the powers currently exercised by Governors General and Prime Ministers, and that these powers should be spelled out in the Constitution.

It is also most apparent from all previous tasks that the role, function and powers of the “Head of Government” should be subject to rigorous “checks and balances”. This to ensure that, even though he would be a powerful figure and have a clear leadership role in our society and system of government, the “Head of Government” could not assume dictatorial powers and “run amok”. At all times he would be accountable to the Parliament. Furthermore, it would seem there is a clear public perception that the “Head of Government” should be accountable to the People through the ballot box.

This raises the question of how should our “Head of Government” be elected? Currently, our Head of Government (the Prime Minister) is elected by a single House of Representative electorate (as their parliamentary representative) and is then elected by that particular political party to lead their party. This political party leader becomes our Prime Minister if that party gains a majority of seats in the House of Representatives. The People (except for one electorate) have no direct say in who should be the Prime Minister. It could be argued that the People have a say in that they might vote for a particular political party (irrespective of who their local candidates might be) in the knowledge that a win for that party will ensure the leader of that party will become the Prime Minister. But even that tenuous connection is illusory. A political party and in some cases just the Parliamentary members of a political party, have the power to change their leader (the Prime Minister) and elect another at any time without reference to the People.

Finally, we should decide what our “Head of Government” would be named in the event we become a republic.

The Constitution of Switzerland provides that:

The Constitution of Germany provides that:

Chapter V The President

1. The President is elected without debate by the Federal Convention. Every German who is entitled to vote in the House of Representatives elections and has attained the age of forty years is eligible for election.
2. The term of office of the President is five years. Re-election for a consecutive term is permitted only once.
3. The Federal Convention consists of the members of the House of Representatives and an equal number of members elected by the parliaments of the States according to the principles of proportional representation.

6. The person receiving the votes of the majority of the Federal Convention is elected.
7. The details are regulated by a federal statute.

There appears to be no provision in the German Constitution for deciding the candidates to be voted on by the Federal Convention. The German provisions are considered to meet only one of the criteria established in paragraph 5 above and that is the eligibility of all citizens for election.

The Constitution of the USA makes the following provisions for the election of a President.

Article II

Section 1.

The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected, as follows:

Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.

The electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each, which list they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate. (these votes are then counted in the Senate and) The person having the greatest number of votes shall be the President.

No person except a natural born citizen shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained the age of thirty five years, and been fourteen years a resident within the United States.

These provisions also do not seem to indicate a system consistent with Australian history or aspirations and we know the use of personal wealth and donations to fund flamboyant election campaigns have an inordinate influence on the outcome.

Extensive research has failed to show any model that could meet the Australian criteria for a popularly elected President. It is therefore necessary to design our own system to conform to the well-established aspirations of the Australian People.

The system outlined here is designed to meet the criteria specified in paragraph 5 above. For the purpose of this exercise, it is proposed the “Head of Government” will be named “President”. This proposal is worded as it might appear in a Constitution.

The role, function and powers of the President are codified elsewhere in this Constitution.

Any Australian Citizen eligible to vote at an election for the House of Representatives and who has attained the age of forty years is eligible to nominate or be nominated as a Presidential candidate.

The President is elected using voluntary preferential voting in a three-round election process as follows.

Round one is an election held in each of 100 Regions (in which there is more than one candidate). There would be no limit on the number of candidates in Round One but candidacy would be conditional on Australian citizenship and three-year residency in the Region. The successful candidate in each Region would progress to Round Two.

Explanatory notes.

1. The Electoral Commissioner may waive residency criteria if he is convinced recent relocation was not connected to the Presidential election.
2. There would be no limit on the funds an individual could spend in support of his or her candidacy in Round One and any local organisation (except political parties) could support the candidacy of any individual provided such an organisation did not have membership outside the regional boundary.
3. Each candidate would be required to pay a non-refundable nomination fee of $5000. (This is simply to deter the lunatic fringe.)
4. It is considered that any citizen with Presidential aspirations would be able to conduct a successful campaign in a single region regardless of financial resources. Furthermore, because radio and television would be relatively unimportant media in single region elections, the effect of disparity in financial resources would be minimised.
5. The conduct of Round One in a local region would give The People intimate involvement in the election of the President and a chance to vote for "one of us".
6. Finally, it is considered that suitable candidates would not be deterred by an election conducted only within their own region as they might otherwise be in a wider election.

For the purposes of Round Two, ten Regions shall be grouped to form each of ten Confederate Electorates. Consequently, a maximum of ten candidates shall contest Round Two in each of these Confederate Electorates. Campaigning in Round Two shall be funded solely by the public purse and shall be strictly controlled to ensure that each candidate shall have an equal opportunity to present his or her self to the Confederate Electorate.

Explanatory Notes

1. Only public funding means the outcome shall not be unduly influenced by personal wealth or campaign donations.
2. Furthermore, it is considered that public funding would reduce to a minimum the usual hurley-burley nature of political campaigning and would enhance the contest with the dignity thought desirable in the exercise of selecting our President.
3. It is further considered that worthy candidates would be less likely to be deterred because in this contest they would be standing as the candidate chosen by their region.

The President is elected in Round Three in an election conducted across the whole of Australia to elect one of the ten successful candidates from Round Two. Round Three is funded solely from the public purse and shall be strictly controlled to ensure all ten candidates have equal opportunity to present themselves to the People of Australia. The outcome of the election shall include ranking unsuccessful candidates by votes to provide for the appointment of a Deputy President in the event of a dismissal or other contingency.

The President is elected for five years and this may be extended to a maximum of one more term of five years by a three quarters majority of a joint sitting of the Parliament.

This Constitution precludes Political Parties from any participation in Presidential elections.

Explanatory Note.

It is not generally appreciated that the Constitution is the instrument with which The People establish how they will be governed. This simple fact means that the People can have their Constitution say whatever they choose. The provision precluding political party participation does not restrict freedom of association; it simply provides that political parties cannot interfere with Presidential elections.

Dismissal of the President

Dismissal of the President would follow impeachment and a decision by a three quarters majority of a joint sitting of both Houses of Parliament. The Chairman of the House or the Chairman of the Senate may call a joint sitting for this purpose.

The obvious criticism of a three-round presidential election as described here would be complexity and cost.

Complexity

The only other systems for the election of a President that come anywhere near fulfilling the criteria listed above are those proposing some sort of committee to come up with a short list of candidates. With the exception of that in Proposal B, such systems appear simple on the surface but in fact are quite complicated. Firstly, there is the problem of nominations for the committee itself. Secondly, there is the problem of exactly who or what organisation would elect or appoint the committee. None of the proposals aired to date satisfactorily answer the challenge of elitism. Thirdly, there is the problem of nominations for selection as a Presidential candidate and the confidentiality of the nominees while the committee considers their suitability (and subsequently). Finally there is the problem of nominating a short list and being able to justify exclusions in the event of a challenge. When all these factors are taken into consideration, a three round election is seen to be quite uncomplicated in comparison.

Cost.

All that is necessary to overcome the question of cost is a little thinking outside the square. In the 21st century, there is no reason why voting could not be conducted electronically. As an example, voters could be required to simply;

1. Pick up the phone and dial the electoral office - 13 23 26.
2. When prompted, the voter would then punch in their tax file number or electoral roll number or some other identifying number.
3. Following further prompts, the voter would then punch in the candidate numbers for their first, second, third preferences, etc.

Obviously, counting could also be conducted electronically and elections in rounds one and two could be held on different days to spread the workload.

It can be seen from the above that this model would give every Australian the opportunity to become Australia’s Head of Government and Leader of the Nation. It would also give every Australian the chance to vote for the person of his choice in a very intimate and transparent process. Personal wealth might be an advantage initially in Round One, but a good local candidate could overcome this with face to face contact - a tactic possible within the confines of a Region. It can also be seen that candidates from urban areas or from the populous States would enjoy no particular advantage over candidates from regional Australia.

Admittedly, the conduct of a three round election would involve public expense as would the funding of campaigns for candidates in Rounds Two and Three. However, this would only occur every five years at the most and possibly only every ten years. Democracy is not cheap. Public funding is considered the only way of retaining public confidence in the system and of ensuring a fair campaign in which personal wealth or wealthy donors is not a major factor. This model would ensure that, not only would the best candidate become the President, but also that the best Australians would be more likely to nominate for election. And The People, without interference by political parties, would be seen to choose their President.

 

Proposal B differs from Proposal A in featuring only one, Australia-wide presidential election. It seeks to address the central problems afflicting all such proposals. Namely;

1. Where do the names on the ballot paper come from, and

2. How many are there?

Many current models for an elected President offer a “managed” (ie. undemocratic) solution whereby Parliament or a selection committee comes up with a short-list. Other models try to limit the number of candidates in the election by “raising the bar”; by requiring a large number of nominators or partitioners. This ensures that the big parties can field candidates while other groups find it very difficult to obtain the required number of signatures.

It is asserted that a fully democratic “single-election” system for election of the President, with the smallest chance of being perverted by party power-brokers, would need the following basic elements:

1. An open nomination process that doesn’t demand a large financial or time commitment in collection of signatures. Nomination by 100 voters signing a nomination would be reasonable.

2. A short-listing process using a vote by ordinary Australians in all parts of the country, to reduce the number of nominations to a workable number of candidates for election of the President.

3. An election process that excludes party politics and money politics, by prohibiting paid advertising. It is likely that there would be broad community support for such a provision, apart from the potentially ferocious resistance by advertising agencies, political parties and media proprietors.

The key to a fair and democratic presidential election process is the prohibition of paid promotion campaigns and instead the use of a constitutionally mandated, publicly funded, official campaign. The Australian Electoral Commission could be charged with the responsibility of collecting information from candidates and producing a scrupulously fair, information campaign in the mass media, as well as mailing a small information booklet to each voter.

The twin concepts of “citizen juries” and “deliberative polling” point the way to a logical and reliable short-listing process. Twelve voters would be selected at random from each of Australia’s 150 House of Representatives electorates (or 100 regions) to provide 150 (or 100) juries of twelve persons. This would provide a deliberative poll of 1200-1800 people - a statistically reliable sample of the Australian population.

The use of 100-150 separate juries would help to overcome one of the criticisms of citizen juries and deliberative polling: the possibility of dominating, dogmatic individuals having an inappropriately large effect on the outcome.

On “selection day” (it might be more than one day depending on the number of nominees) the jurors would meet at appropriate locations throughout Australia, linked by computer and video facilities. Detailed biographical information on each candidate would be accessible to jurors on a secure Internet site, and there would be time for discussion among the members of each jury. In addition, the Electoral Commission would structure the day so that nominees could give short, video presentations, of equal length. At the end of the day, each of the jurors would vote by secret ballot for, say, six nominees. The six nominees receiving the greatest number of votes Australia-wide would become candidates in the Presidential election.

As in a court case, jurors would be voting as a sample of the population, and not as delegates of the electors in a particular area. They would not be required to consult with the wider community. They would be voting after receiving a far greater amount of information than it would be feasible for 13 million voters Australia-wide to be given, about a potentially large number of nominees.

Directing the Citizen Juries

Given current community distrust of politicians, it seems unlikely that a citizen-jury short-listing process would result in a contest between political parties for the office of President. To make sure of this, the Constitution would contain an explicit provision crystallising the People’s desire for a non-partisan Head of Government/ Leader of the Nation. One possibility would be for the Chief Justice of the High Court to be required to advise jurors of their responsibility to select non-partisan candidates capable of representing the entire nation, and not candidates owing undue allegiance to any sectional political, economic or social group.

 

In this Task you are asked to indicate your preference for a system to elect or appoint a President or Head of Government in the event that Australia becomes a republic.

To facilitate your response, Proposal A is outlined in paragraphs 20 to 38 and Proposal B is outlined in paragraphs 39 to 47. However, you are encouraged to outline alternative proposals in response to this Task. It is emphasised that in this Task we are not making an assumption that Australia will become a republic. This Task is designed to solicit your views and arrive at conclusions so that “exactly what sort of republic” can be spelled out when we tackle that fundamental question.

Your response to the following questions is necessary to assess your opinion in this matter. All the questions are based on the premise, “If Australia becomes a Republic….”.

Q 1. Should the Australian Head of Government/Leader of the Nation be called the President?______If not, what name would you prefer?_________________

Q 2. Should the Australian “President” be directly elected by the People?_____

Q 3. If your answer to Q 2 is No, what alternative do you propose? (See Q 16.) To facilitate coalescence of responses, please answer the following questions and/or include answers to the following in your alternative proposal.

Q 4. In principle, should all citizens eligible to vote also be eligible to nominate or be nominated for election to the “Presidency”? _____________________________

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Q 5. Do you consider it advisable that the Constitution state a minimum age for eligibility for “Presidential” candidacy? If yes, what minimum age?___________

Q 6. Do you consider it important that any system to elect or appoint an Australian “President” should guard against undue influence by personal wealth or donations by wealthy organisations or people?__________________________

Q 7. Do you consider it important that political parties be precluded from influencing presidential elections?_________________________________

Q 8. Do you consider it important that politicians be precluded from standing and/or influencing presidential elections?________________________________

Q 9. Do you consider it appropriate that presidential campaigns be publicly funded to eliminate the influence of private wealth?_______________________

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Q 10. Is Proposal A (outlined in paragraphs 20 to 38) acceptable in principle?________________________________________________________

Q 11. Do you suggest any modification of Proposal A? ________________________________________________________________

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Q 12. Is Proposal B (outlined in paragraphs 39 to 47) acceptable in principle?__

Q 13. Do you suggest any modification of Proposal B? __________________________________________________________________

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Q 14. Is a decision by a three quarters majority of a joint sitting of the National Parliament acceptable as a means of removing from office a President deemed to be no longer capable of performing his role?___________________________

Q 15. Do you propose some other method of removing a President deemed incapable of performing his role?________________________________________________________________

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Q 16. Do you suggest another method of electing / appointing an Australian Head of Government / President?__________________________________________

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Last updated: 3 May 2006