Senate Inquiry into an
Australian Republic

Submission 
By
Charles S Mollison

There are a number of ways to better present a proposal for an Australian Republic. However, appreciating the difficulty of coalescing large amounts of data from numerous submissions, this submission is presented in the form of answers to the questions raised in the discussion paper.

Yes. The Australian Head of State should also be the Head of Government – that is, Head of the Executive.

The role, function and powers of Australia’s Head of State should be as follows:
A. The role of the Head of State is to be the Head of Government. 

B. Subject to the Constitution the Head of State shall fulfil the following functions: 
1. Guardian of the Constitution
2. Ceremonial Head of the Nation.
3. Spokesperson for the whole of Government.
4. Chief Executive.
5. Commander in Chief of the Armed Services.
6. Receive visiting Heads of State of other countries.
7. Appoint Australian Ambassadors and Consuls (on advice).
8. Appoint Heads of Government Departments (on advice).
9. Appoint Justices of the High Court (on advice).
10. Appoint Justices of the C’wealth Supreme Court (on advice).
11. Appoint Commissioners, Ombudsmen, etc (on advice).
12. Appoint Chairpersons of the Senate (on advice).
13. Appoint Chairpersons of the House of Representatives (on advice).
14. Sign Legislation into Law.
15. Address the Parliament at least once annually.
16. Address the Nation at least once annually.

C. Subject to the Constitution the powers of the Head of State are as follows: 
1. To speak on behalf of the Nation both domestically and in the international forum. (The Head of State would be guided by the Parliament in this.)
2. To negotiate with other nations. (On the advice of and subject to veto by the Parliament.)
3. To deploy the Armed Services within Australia in time of emergency. (Subject to ratification by referenda and/or Parliament within three months.)
4. To declare war and peace (subject to referenda).
5. To sign legislation into law.
6. To send legislation back to the Parliament for reconsideration with or without recommendations.
7. To initiate referenda.
8. To authorise the conduct of Referenda initiated by Citizens.
9. To initiate parliamentary agenda items.
10. To establish such Government Departments and Offices as considered necessary for the good governance of the Commonwealth of Australia. (On advice from the Parliament.)
11. To hold Heads of Departments, Ombudsmen, Commissioners, etc, accountable for their performance.
12. To hold the Chairpersons of Parliament accountable.
13. To sack a Member of Parliament for misconduct or dereliction on the advice of the Parliament.


1. The idea with the above is to spell out exactly what the Head of State is empowered to do and to have no such thing as ‘reserve powers’ as at present.

2. The intention is also that the Head of State would be a powerful individual with a clear leadership role. However, much of the time, the Head of State would, of course, be speaking and acting on behalf of the Parliament. 

3. At the same time, it is necessary that the Parliament should have the power to dismiss the Head of State if necessary. That is to say, there must be checks and balances. This is necessary to prevent the situation developing to the stage we now endure whereby an Australian Prime Minister has enormous power even though there is no mention in our Constitution of a Prime Minister or any expression of what powers he might have or any limitations on that power.

4. The role, function and powers of an Australian Head of State outlined above are impressive and might appear to some to create an office that is too powerful. However, they confer no more power than present-day, Australian Prime Ministers exercise - with NO constitutional authority or constraint. The primary point is that, currently, the Constitution makes no provision for a Prime Minister let alone spell out his powers; or the limitations on his powers; nor does it provide any checks or balances.

All the powers of the Head of State should be codified in the Constitution. There should be no “reserve powers”. In other words, we should decide on the role of the Head of State and the powers of the Head of State and specify these in the Constitution.

The argument that we might not be able to foresee all circumstances and therefore should have “reserve powers” is tantamount to saying, “we cannot foresee all circumstances occurring on the roads so we should decide what the rules are after we see what happens.”

In the answer to Question 7 below, a three stage election process to elect Australia’s Head of State is recommended. The last two stages should be subject to “public funding only” provisions to ensure that all candidates are fairly presented to the voters, there is no opportunity for “corporate sponsorship” and wealthy candidates have no advantage over less wealthy candidates.

Political parties should have nothing to do with presidential elections. All that is necessary is for the Constitution to state, “Political Parties are precluded by this Constitution from participating in Presidential elections.” This is the will of the People of Australia and there is no reason a provision such as this cannot be included.

The Australian Electoral Commission should be charged with responsibility for ensuring there is no campaigning by political parties and no campaigning except as carried out by candidates and their supporters in stage one and as provided by public funding in stages two and three.

The method of directly electing Australia’s Head of State (President) could be expressed in the Constitution as follows.

Any Australian Citizen qualified and eligible for election to 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 (if there is more than one candidate in a Region). 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.
a. The Electoral Commissioner may waive residency criteria if he is convinced recent relocation was not connected to the Presidential election.
b. 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. 
c. Each candidate would be required to pay a non-refundable nomination fee of six times Average Weekly Earnings (Approximately $5000 in 2004). (This is simply to deter the lunatic fringe.)
d. 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.
e. 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".
f. 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 from the public purse and shall be strictly controlled by the Australian Electoral Commission to ensure that each candidate shall have an equal opportunity to present his or her self to the Confederate Electorate.

Explanatory Notes
a. Only public funding means the outcome shall not be unduly influenced by personal wealth or campaign donations.
b. 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. 
c. 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. 

DEBATE

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 desirable criteria are those proposing some sort of committee to come up with a short list of candidates. 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;
a. Pick up the phone and dial the electoral office – 13 23 26. 
b. When prompted, the voter would then punch in their tax file number or electoral roll number or some other identifying number. 
c. 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 in different Regions to spread the workload.

The cost of public funding of campaigns for the candidates in Rounds Two and Three could be easily covered when we abandon the current practice of funding political parties after each election. A total of $33,920,787 was paid out to political parties following the 1998 Federal Election and the rate is indexed to increases in the CPI. (D Tucker & S Young, "Public Financing of Election Campaigns in Australia-A Solution or a Problem?" in "The Big Makeover", Glenn Patmore, Editor, Pluto Press, 2001.)

Conclusion

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 or her 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.

A non-executive President is not an option that should be contemplated in a 21st Century Australian Republic. Australians have made it clear they want to directly elect their President. A directly elected President should become the Head of the Executive and should assume the role currently played by the Prime Minister. There is no need for a Prime Minister as well as a directly elected President. Under such an arrangement, the question of rivalry does not arise. 

This arrangement is necessary because there should be a clear separation of powers between the Executive (headed by the President) and the Parliament. (Ministers should not be in the Parliament. This is a fundamental flaw in the “Westminster” system of government.)

The Executive should comprise the President and the Chief Executive Officer of each Department. Departmental CEOs would assume the role currently played by Ministers and would be responsible to the Parliament for the execution of policy and legislation passed by the Parliament. They would be required to formally report to the Parliament each year, would be available to brief the Parliament and answer questions at any time, and would be responsible for forward planning. Departmental CEOs would be held accountable by being vulnerable to dismissal by the President with or without the advice of Parliament.

Australia’s Head of State should be directly elected and every citizen qualified and capable of being chosen as a member of the House of Representatives should be eligible to nominate himself or herself and to nominate someone else for election.

Political parties should be precluded by the Constitution from playing any part in Presidential elections. The President must not be a member of an Australian parliament or a member of a political party. A person with dual nationality would have to take all reasonable steps to renounce that other nationality. There should be no other barriers to nomination.

The three stage election system outlined in the answer to question 7 above obviates any necessity for specifying maximum or minimum number of candidates.

The three stage election process outlined above allows any and every citizen to nominate in stage one as it should be. The other two stages ensure a sufficient number of candidates and that no more than ten candidates are presented to voters.

The Head of State should be called The President of Australia.

The President should be elected for a term of five years. He should be eligible for re-election for one further term. However, the Parliament should be empowered to extend the term of office of the President to a maximum of ten years.

In cases of clear impairment due to illness or blatant misconduct a two thirds majority of a joint sitting of the Parliament should have the power to remove the President. 

Grounds for removing the President should be spelt out in the Constitution in terms specific enough to ensure fairness but general enough to ensure the Parliament does have a clear mandate to remove the President. This is necessary to provide a check on the power of the President.

A casual vacancy should be filled by the next available candidate who received the most votes after the President at the election. 

Every citizen qualified and eligible to be elected to the House of Representatives should be eligible to nominate or be nominated for election as President of Australia.

There should be a requirement for full disclosure of convictions, etc. Candidates failing to make such disclosures would disqualify themselves. Only Australian citizens would be eligible for election to the office of President.

Yes. The President should have the power to appoint and remove all judges. The President would call on advice from the Australian Judicial Commission (a body appointed by the President from members of the judiciary, and other citizens.)

Yes. In very rare cases, the High Court should have the power to allow an appeal to the President.

Yes. The President should be free to call on advice from the judiciary. In particular the President should be free to ask the High Court for advice on such matters as the Constitutional validity of proposed legislation passed to him to sign into law by the Parliament.

The six State Governments, two Territory Governments and approx 700 Local Governments should be abolished in favour of establishing approximately 100 Regional Governments. Under this proposal the National Parliament would have responsibility for all policy and for all law making. That is, there would be only one set of laws across the nation. The National Government would retain total responsibility for Defence, Foreign Affairs, Trade, Customs, Immigration, Quarantine, etc. 

Regional Governments would assume responsibility for the delivery of all other government services including health, education, welfare, law and order (although there would be only one police service) and all the services currently delivered by Local Government. The delivery of services would be seamless. That is, residence in one region would not preclude the availability of government services in another region under normal circumstances.

The Regions would be established with populations of between 90,000 and 250,000 people. (In the very sparsely populated areas, there might be a need to establish some “Special Regions”.) Regions would be delineated using water catchment areas as the primary basis where possible. In other areas, socio-economic factors would be used.

A fixed proportion of National revenue would be guaranteed to the Regions by the Constitution. Revenue to the Regions would be untied except for the requirement to conform with National policy.

Regional Parliaments would be uni-cameral and Members of Regional Parliaments would be elected from electorates of just 5000 voters. This would provide Regional Parliaments of approximately 40 MPs.

The National Parliament would be bi-cameral and both Houses would be elected by Regional Parliaments from their membership. One Senator and two Representatives from each Region would provide a Parliament of approximately 100 Senators and 200 in the House of Representatives. National MPs would be required to sit in their Regional Parliament on a specified four days each month to listen and to brief.

Voting in all houses of Parliament would be published daily. And all parliamentarians would be subject to recall by their constituents. That is, Regional MPs would be subject to recall by the voters in their electorate and National MPs would be subject to recall by their Regional Parliament. 

Although not part of the structure of government, local communities would retain an option to delineate their community, to set and collect rates, to decide on any structure and to spend revenue as they saw fit.

Models

It is considered that the models outlined in the discussion paper lack imagination and rely too heavily on a rear vision mirror view of the political history of other nations. The model outlined above would provide an Australian Republic that takes into account Australian demography and geography. The above model encapsulates Australian aspirations for;

• a strong Head of State, 
• a clear separation of powers between the Legislature, the Executive and the Judiciary,
• and a uniquely Australian structure of government with appropriate division of powers and responsibilities.

Only the bare outline of this proposal is presented here. However, much more detail has been worked out and is available.

Yes. The basic question of relinquishing the Monarchy must be resolved first to allow all Australians to concentrate their thinking about the possibilities for an Australian Republic.

Any move to a Republic will require a change to our Constitution. However, our current Constitution is already a mess and amendment of it will exacerbate this problem. The best option is to adopt a whole new Constitution. A whole new Constitution should be written in contemporary language, with an appropriate structure and incorporate approaches that will address the many ills currently afflicting our society. The Constitution should establish the sort of society we wish to live in and be the basic law of our society. The Constitution should be a living, vital element of our every day lives. Our new Constitution should be one that the citizens of this great Nation can embrace as their formula for how they wish to be governed.
Republican Model proposals should therefore be expressed in the form of a whole new Constitution for Australia. 
If there are many proposals submitted in this form, it may be necessary to conduct several plebiscites to gauge public opinion. It may even be necessary to reduce a large number of proposals to summary form to facilitate the conduct of plebiscites but if possible, the full draft Constitution should be presented to the People.

I see no valid arguments to support abandonment of the Australian tradition of compulsory voting.

The move to an Australian Republic will have ramifications for nearly every part of the Constitution. The sensible way forward is to draft a whole new Constitution. It seems appropriate therefore, that any proposed model should be expressed as a whole new Constitution.

To be successful, a new Constitution must be seen to be the clear will of the People. It must be written by the People for the People.

The process should start with a general invitation to the Citizens of Australia to submit proposals for an Australian Republic expressed as a whole new Constitution. 

Constitutional Conventions should then be convened to select the best three submissions.

The best three draft Constitutions should then be put to a vote of the People in the form of a plebiscite. The draft Constitution receiving the most votes should then become the blueprint for further action by the Parliament, and Parliamentary draftsmen.

Within twelve months of the plebiscite, the new Constitution should be presented to the People as a referendum. Obviously there will need to be a considerable number of interim provisions to facilitate the change-over. The People will also wish to vote on a timetable for adoption of each provision approved in the plebiscite and not included in the referendum Constitution.

Conclusion

Any move to a republic should embrace much more than an inconsequential debate about the Head of State. Abandonment of the Monarchy is also of little consequence given the fact Australia has evolved as an independent Nation in its own right.

Whatever model for a republic that is adopted will require amendment of the Constitution. However, Australians regard the Constitution as the last bastion of their sovereignty and will guard it jealously as has been proved in numerous failed referenda. Our current Constitution does not provide even a valid description of the system of government that has evolved over the last 100 years and is therefore difficult for the layman to understand. Any amendment will therefore be regarded with suspicion. A whole new Constitution written in contemporary language is more likely to be considered and accepted on its merits.

Furthermore, there are many issues in our society that could be fixed with a whole new Constitution. Prime among these is the nonsense of having members of the Executive mixed up in both Houses of the Legislature. But there are many more; such as the no-longer-appropriate division of responsibilities between the States and the Federal Government, cross-vesting, the need for nation-wide laws including corporations law, criminal law, traffic law, work place health and safety, and so on. There is also the need to eliminate the duplication, the need for consultation and the need for co-ordination brought about by the confusion of responsibilities between three tiers of government. All these activities add enormous costs to the governance of this Nation. A whole new Constitution could address all these issues.

Our current Constitution relies on unspecified elements of British law and tradition and that would be totally inappropriate in an Australian Republic. A new Australian Constitution could incorporate those elements of British law and tradition deemed desirable, discard the remainder, and be a complete document in its own right. A new Constitution framed in this manner will be more easily understood, more easily learned in school and more likely to lead to the rejuvenation of the Australian body politic. It could well be the catalyst that reverses the great Australian political apathy.

Our current Constitution has served us reasonably well for 100 years. There is no reason to doubt that a new Constitution could serve us for the next 100 years. It is therefore prudent to get it right. 

This submission is forwarded to the Committee in great hope. My hope is that the Committee is endowed with great strength and fortitude and that the outcome makes history in the constitutional evolution of this great Nation. 

Charles S Mollison
Woombye, Qld

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