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Joint Committee on Republic Referendum
Proposed laws, Constitutional Alteration (Establishment of Republic) 1999 and Presidential Nominations Committee Bill 1999
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Joint Committee on Republic Referendum
Ms JULIE BISHOP
Senator STOTT DESPOJA
Proposed laws, Constitutional Alteration (Establishment of Republic) 1999 and Presidential Nominations Committee Bill 1999
ACTING CHAIR (Mr McClelland)
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Joint Committee on Republic Referendum
- Committee front matter
- Committee witnesses
ACTING CHAIR (Mr McClelland)
Ms JULIE BISHOP
Senator STOTT DESPOJA
- Committee witnesses
Ms JULIE BISHOP
Senator STOTT DESPOJA
Content WindowJoint Committee on Republic Referendum - 29/06/99 - Proposed laws, Constitutional Alteration (Establishment of Republic) 1999 and Presidential Nominations Committee Bill 1999
CHAIRMAN —Welcome. Do any or all of you have a brief opening statement? We have received your submission.
Mr Doherty —Mr Chairman, I have a brief opening statement. The referendum task force was established in the Department of the Prime Minister and Cabinet at the end of last year to support the work of the ministerial steering group in developing the referendum legislation. Jim Faulkner and David Lewis have both been closely involved in that.
On the task force we have also worked closely with the Attorney-General's Department. The Attorney-General's Department has a constitutional policy unit currently headed by Sandra Power. That reports to Ian Govey. Ian and Sandra have both also been closely involved in the development of the legislation. We have also worked closely with the Australian Government Solicitor's office and legal issues have been referred there. They have been involved in discussions as the drafts have been developed. Robert Orr, Deputy General Counsel, has been closely involved in that process as well.
In addition to the submission that we have provided to the committee secretariat, I am hoping to provide this afternoon the text of a speech that the Attorney-General will make as part of an ANU public lecture series today. It tracks much the same ground as is covered in our submission—that is, an explanation of the approach which the government has adopted in giving effect to the Constitutional Convention model.
I am conscious that the committee have not had our submission for very long. In that context, it may be useful if I just give a very brief overview of the structure of the submission, the main elements of the legislation, and what we see as likely to be the key issues which will arise before the committee.
CHAIRMAN —Does the committee prefer an overview or shall we start asking questions?
Mr CAUSLEY —I would prefer an overview.
Ms JULIE BISHOP —So would I.
Mr Doherty —Thanks, Mr Chairman. As has already been identified, there are two bills which the government has introduced which are proposed to form the basis for the referendum on whether Australia should become a republic. The Constitution Alteration (Establishment of Republic) 1999 would contain the proposed constitutional changes. Because they are proposed constitutional amendments, those changes would only become law if endorsed by the people at a referendum.
The provisions of what we call the republic bill—the Constitutional Alteration (Establishment of Republic)—fall into three main sections and they are identified in three schedules to the bill. The first deals with the real structure of the proposed republic model: the provisions relating to the office and the powers of the President. The second schedule deals with a range of consequential changes to constitutional provisions which would be required as part of the change. These, in the main, relate to replacement of monarchical references in the text of the Constitution.
Our submission does not deal with those provisions in detail, but they have been explained comprehensively in the explanatory memorandum to the bill. I should say that our submission is not intended to replace or substitute for the explanatory memorandum.
To help the committee look at those provisions, we have included with our submission a copy of a marked up Constitution, which would show the changes to the Constitution as proposed in this legislation. I think that makes the effect of those amendments a lot clearer in each case. The third schedule then in the republic bill relates to a range of transitional and technical provisions and the most important of those relate to the issue of how to coordinate change at state level or how to deal with the implications for state constitutions of change to a republic.
The second bill in the package then is the Presidential Nominations Committee Bill, which sets out additional provisions relating to the Constitution and operation of the committee which would deal with the process for obtaining public nominations for the office of President. The nominations committee bill does not contain constitutional changes. Accordingly, it would not need to be put at a referendum and would not form part of the referendum question. The government's intention is that the nominations committee bill, while it has been introduced, would not be pursued through to passage unless the republic bill is passed at the referendum.
Just turning briefly to the structure of our submission, we have attempted to deal with what we see as the main issues which are likely to arise before the committee. We do not follow the provisions of the bills in sequence. Again, that is an exercise for the explanatory memorandum. Our judgment about what are the issues that are likely to arise has in part been informed by the exposure draft process and the comments that we received in the process of developing the drafts.
The bills were released as exposure drafts in March 1999 and we received somewhere over 100 submissions in response, which have been taken into account in finalising the drafts which were introduced into parliament. In addition to the public consultation process, we had
detailed consultations with all states under the auspices of a COAG working group of officials. The results of those consultations have also been fed into the final drafts. To identify the changes which have been made since the exposure draft stage, we have included a marked up version of the bill showing the changes between exposure draft and introduction.
If I could turn briefly to the general approach that has been followed in preparing the drafts, we have followed three broad principles. The first is that the provisions should be an appropriate expression of the republic model that came from the Constitutional Convention. The second is that they should not go beyond what is reasonably necessary to implement the convention model. There are a range of other constitutional issues which have been raised for consideration, but the government's judgment was that this proposal should be limited to what is necessary to implement the convention model for a republic. Thirdly, the language should accord with the style and level of detail adopted in the existing provisions of the Constitution.
Turning then to what we see are likely to be main issues or the main elements of the bill, which will give rise to issues that will be considered before this committee. In terms of the qualifications of the President, the intention of the provisions is to pick up the same eligibility requirements as would apply for members of parliament. The provisions would pick up the application of sections 34 and 44 of the Constitution as they stand. I understand there are some issues relating to section 44 and the prospect that there may be proposed amendments to that provision in the future. The intention would be that any changes to section 44 would flow through to the President, as they apply to appointment of members of parliament.
The next group of issues relate to the process of appointing the President and the proposed provisions would entrench the three main elements identified in the convention's resolutions. Those are a broadly based committee to invite and consider public nominations and then report to the Prime Minister, the bringing forward of a nomination by the Prime Minister seconded by the Leader of the Opposition and, thirdly, approval by a two-thirds majority of the members of both houses of a the Commonwealth parliament at a joint sitting.
The next important group of issues relate to the powers of the President. The intention of the proposed provisions is to give the President the same powers that the Governor-General now exercises. A broad distinction is drawn in the proposed provisions between the reserve powers and other powers. Proposed provisions would make it clear that the powers other than the reserve powers are exercised in accordance with advice. In relation to the reserve powers, the proposed provisions would preserve the constitutional conventions which currently apply to their exercise without spelling them out.
The next group of provisions relate to the Acting President and deputies. These involve the use of state governors as Acting President in line with existing practice. Another important feature of that is that they would operate automatically to put an Acting President in place in the event of a vacancy.
Moving then to the removal of the President, which is clearly an important issue: the proposed provisions would provide a power in the Prime Minister to remove the President by
a written instrument which takes effect immediately. They also provide a constitutional requirement for the Prime Minister to seek approval from the House of Representatives, except where an election follows the removal.
In relation to states, the provisions are intended to achieve the result that each state would make its own decisions about changes to the state Constitution. The government has expressed a strong preference that, if the Australian people vote for a republic, then change should come into effect simultaneously at both Commonwealth and state level. However, the government does not believe that the referendum should force change to state constitutions. The intention has been to allow the states to follow their own processes but to allow time for that to happen so that it maximises the chance of a coordinated commencement on 1 January 2001 if change is endorsed at the referendum.
In these opening comments, we have just attempted to provide a very broad outline of the provisions. We can elaborate on any particular area where you feel you would find more information useful. Finally, it may not need to be said but I would just like to put on the record that, in explaining the intended operation of these provisions and our understanding of the issues, we are not seeking to support either the case for or against change. Our task has been to help develop bills which are an effective expression of the convention model and our answers should be understood in that context.
CHAIRMAN —Thank you, Mr Doherty. Thank you for coming today. If I could introduce my colleagues: Nicola Roxon, from Victoria; Michael Danby, Victoria; Jill Hall, New South Wales; Natasha Stott Despoja, South Australia; Robert McClelland, New South Wales; Julie Bishop, Western Australia; David Hawker, Victoria; Roger Price, New South Wales; Ian Causley, New South Wales; and Bruce Baird, New South Wales.
First question: on the term of the President, you said, `Although the bills place no limit on the number of terms, there is no incentive for a President to favour the government to attempt to secure reappointment because of the bipartisan nature of the appointment process.' Quite frankly, I thought that was silly.
I will point to you the only constitutional crisis we have had in 98-plus years. It seems to me that the Prime Minister's suggestion to the Queen of the appointment of the Governor-General backfired on the Prime Minister of the day when Kerr switched camps. How on earth can you say that the fact the Prime Minister appointed him in the first place and it was agreed by the Leader of the Opposition means there would never be a case for the President to become partisan? I cannot follow the logic.
Mr Doherty —I think the nub of the point we were trying to make is that, under this process, you would need both sides to approve the appointment of a President.
CHAIRMAN —The point I make is that, once he or she is approved, the individual becomes his or her own man or woman. I think each of us could point to governors-general who have changed substantially, who have allowed the office itself to change their views, their policies and their practices. How the initial appointment relates to what they are like as an individual five, six or seven years down the track totally escapes me.
Mr Doherty —Again, they would need to go through the same process to be reappointed, so if, in four or five years, they were attempting to curry favour with a view to reappointment, they would still have to have an eye to the fact that they could not be reappointed unless both sides agreed to that reappointment. It would not be a unilateral appointment by one side or the other.
Mr CAUSLEY —Surely, if they were popular with the public, there is going to be a problem arising. I think what Bob is trying to get to is that they make their own position. They could easily become a very popular figure. Then, even though you might have the support of both sides of the parliament, it is going to be very difficult to remove them.
Ms ROXON —I have a question, Mr Chairman, about the removal. Why is it, if the drafting has required bipartisan support for the appointment, that you would not require any sort of bipartisan support for the removal, or even any public notification, or even any declaration of the reason for removal, especially as there is an election?
Mr Doherty —The basis for the removal provisions is really the Constitutional Convention model. These sorts of issues about how you effect the balance were worked through at the convention, and the end result was empowering the Prime Minister to effect the removal.
Mr DANBY —It subsequently has to come back to parliament.
Ms ROXON —Someone will correct me if I am wrong, but there was actually a process, if you were following the convention's recommendation, for there to be a later vote and potentially a vote of no confidence. That is not in the legislation, though?
Mr Doherty —Yes, the provision is there to require it to be brought to parliament for the parliament to vote on whether it approves the removal or not, except in that very limited case where an election follows immediately after.
Mr HAWKER —Could I just follow up on that point: supposing the decision is not brought to the parliament, what happens then?
Mr Doherty —The result, I guess, is that you have got a breach of a constitutional provision. Ultimately, the remedy for that may still lie in the parliament, but it would be a matter which, again, could be raised, I guess, by a majority in the parliament.
Mr HAWKER —But if the Prime Minister controls the majority, at least in the lower house, he may not wish it to be brought to the parliament. So what happens then?
Mr Orr —The Prime Minister would be acting unconstitutionally in doing that. The basic provision is that there is an obligation on the Prime Minister to bring this matter before the parliament within the second period.
Mr HAWKER —What is the sanction on the Prime Minister?
Mr Orr —The Prime Minister would be acting unconstitutionally. There are two levels of sanction that might arise there. The first level of sanction would be sanction by the parliament itself. The other level of sanction may be a level of sanction by the court.
Mr HAWKER —You say `may be'. If the parliament does not sanction the Prime Minister, then what happens?
Mr Orr —It would be possible for someone to try to bring proceedings to compel the Prime Minister to fulfil his obligations.
Mr HAWKER —What is the High Court going to do then?
Mr Orr —The High Court is going to have to weigh up a number of factors in deciding whether it would intervene then. You cannot do more, as a matter of law making, than say in the Constitution that the Prime Minister must take certain steps. There is no higher law than the Constitution. It is a matter of having then the organs of government and our system of government to bring about compliance with that. But you cannot really do more than say that the Prime Minister must do this.
Ms ROXON —Those steps do not require the Prime Minister to explain to anybody, give any reasons, or even notify anyone, other than the President.
Mr Orr —No. Section 62 of the bill, which you have before you, says that the Prime Minister must seek the approval of the House of Representatives. So the Prime Minister has to bring the matter before the House of Representatives within 30 days, except in certain exceptional cases involving an election, where it is really a matter for the people of Australia to decide the position.
Ms JULIE BISHOP —In relation to section 62, I understand that this has been amended as a result of the exposure drafts so that there is inserted in this section an exception to the situation where the Prime Minister must seek the approval of the House, and that exception is where an election has been called—parliament is prorogued.
That could well mean, therefore, that the action of the Prime Minister in dismissing the President will never in fact be put before the House because there could be a change of government, a change of Prime Minister and the like, so that President is gone for ever more. And we cannot assume that the election is the political process that will justify or not justify the Prime Minister's action, for the election could be called in relation to an entirely different issue, and fought and decided on an entirely different issue. Are you comfortable that that situation be allowed to occur, that there be essentially a sacking by a Prime Minister of a President that is then never brought to the House for approval or disapproval?
Mr Orr —It is not that it will never be brought; there is just no constitutional obligation on the matter being brought because of the fact that an election is to be held.
Mr PRICE —It is just the ultimate umpire of decisions.
Mr Orr —Exactly.
Ms JULIE BISHOP —Except that the election may not be in relation to this issue. The election might be on a tax issue or anything other than the circumstances of the dismissal of the President.
Mr Orr —That is right. Elections are held on a range of issues. The fact of an election, however, is seen as a vote by the people with regard to this issue and is seen as determining it.
Ms JULIE BISHOP —You are happy that that covers it?
Mr Orr —Yes.
Senator STOTT DESPOJA —I was going to pursue Julie's points, rather than rehash some of the concerns of the model proposed at the Constitutional Convention. I agree with Nicola, and I was the person who moved the amendments seeking to involve the Senate in the process of dismissal. But I was going to ask you how responsive you feel you have been to that consultation process, the exposure draft process. Clearly, you have indicated one change that could be made. I am wondering how many people raised objections to the model that arose from the ConCon in relation to the dismissal provisions.
I am specifically concerned about two areas: the lack of a role for the Senate, and so for two houses to be involved in that process of dismissal; and also that issue of natural justice, the idea, which I think was not necessarily taken that seriously at the Constitutional Convention, that retrospective ratification denies a degree of natural justice to the person in that position. Did people raise these concerns in the consultative process and how cognisant of that have you been in recommending changes or considering changes?
Mr Doherty —The answer is that our considerations have been limited essentially to giving effect to the model that came from the Constitutional Convention. That was the government's commitment. We have not been looking at the proposals which would reflect a different model altogether. So a lot of the issues that you are raising which would involve changes to the convention model we have not reflected in changes since the exposure draft process.
Senator STOTT DESPOJA —Did a lot of people raise these issues? I am just genuinely concerned.
Mr Doherty —I cannot put a figure on it but, yes, there were issues raised during the consultation process which went to the model rather than to the legislation as an expression of that model.
Senator STOTT DESPOJA —Do we get an analysis—and I apologise if we have one already—of the consultative process after the exposure draft? Is that something you can provide to us, or is this essentially it?
Mr Doherty —We have not at this stage. We have provided only a brief narrative description of the consultation process. We do have a privacy concern in relation to
disclosing what individuals have said in the consultation process. We understand they would have the right to bring their submissions forward to this committee.
Senator STOTT DESPOJA —To resubmit. Okay. Thank you.
Ms HALL —My question goes to section 62 and is along the same lines as have already been raised. My concern—and I am interested to know if this has been raised at the consultation—is the fact that, in the event that the Prime Minister removes the President, he has the 30 days to have it ratified, and if the House of Representatives does not ratify the Prime Minister's action, then that constitutes a no confidence vote in the Prime Minister. Given that the Prime Minister is the Prime Minister because he is the leader of the party of the government, it would appear to be a highly unlikely scenario that there would actually be a no confidence vote in the Prime Minister in the House of Representatives. I suppose it goes to what Natasha was alluding to earlier, that the involvement of both houses, or some other mechanism, would make the process a little more accountable. Has that concern been raised along the way in your consultation?
Mr Doherty —Again, it was a conscious decision at the convention to limit that approval process to the House of Representatives, which was seen as the house where governments are formed or lost. If the Prime Minister, after his action, continued to command the majority in the House, that is, the majority with his own party, and if that was the dominant party, then I guess the result of that is that he is able to pass the approval motion and there is no question of no confidence.
Ms HALL —In the consultation process, no-one raised the fact that the Prime Minister would in all likelihood retain the confidence of his own party because he was the leader of that party?
Mr Doherty —I think that was an issue that would have been well in the minds of the people at the convention as the proposal was developed. Again, as I said to Senator Stott Despoja, the approach in the consultation process was that we were looking at comments which related to the legislation as an expression of the model, not to questions which went to the basic model itself.
Ms ROXON —I cannot get my mind around why you actually do not politicise the position of President more by excusing the dismissal at the time of an election but not at any other time, or do not have a review process at the time of the election. I do not see why that does not give some impetus for a Prime Minister to determine that it is electorally useful to dismiss the President and then go to an election, if it is an unpopular President, or for whatever reason. Again, the answer might be that that is what the Constitutional Convention determined and you are stuck with that. But to me that just seems strange. I do not know if you have an answer on that.
Mr Doherty —I do not think we can point to the Constitutional Convention on that one because the exception in relation to the election process is really something that did come out in the consultation process, in particular in the consultations with the states. The scenario of a President being removed during an election process seems unlikely, I think largely because of the huge political risk that is involved; if that was seen and presented as a bad
move, the risk would be enormous. You cannot remove, I do not think, the possibility that that would need to occur.
The one extreme case that occurs to me is that you may have a President who is becoming involved in the election process, promoting one side or the other or a series of issues. There may in fact be bipartisan support that the President would need to be removed to allow the election to happen fairly. In that process I do not think you can rule it out. I think you need to allow for it, and the approach that has been adopted is to say that if the people have the say in a subsequent election occurring shortly after the removal they can decide whether or not that is a big issue to them and express any view that they feel through that vote. So you do not then need to have the whole process again, a new approval vote in the House, the possibility of a no confidence motion and a fresh election.
Ms ROXON —But it has been already raised that it is a bit of a nonsense to think that people are going to vote just on that one issue, as Julie said. In the scenario you say it might be something that both parties agree to. Then there is no difficulty going either to a joint sitting of both houses or a House of Representatives vote to say that this is what we need to do. I do not see why that creates the exception for during the election period. You may not have an answer—
Mr Doherty —I just come back to the issue that the people may not want to express a view; there may be other issues that are a higher priority to them. If that is the situation, is it really worth then going through the process again for which the end result is possibly another election, if, by their voting, they have in fact indicated that there are other issues that are more important to them?
Ms ROXON —Yes, so why not have a process that requires the Prime Minister to do that to start with, rather than wait until after the election? Why not have a standard process that they have to come back?
Mr Doherty —Again, I do not want to get too far into defending the model, but that was the model that came out.
Mr Orr —Just to add to that, there is no prohibition on the matter being raised in the parliament after the election if the parliament wants to raise the matter. All that is removed is the absolute requirement of the Prime Minister to raise it. So, if the parliament regards this as an issue—indeed if either house regards this as an issue—the matter can be raised in the parliament. It is just that there is no requirement that the Prime Minister bring this to the parliament within 30 days.
A more minor point, but nonetheless a significant point, is that the whole timing of the 30 days becomes quite problematic if you are in an election period. It would need to be a much more complicated model if that was to be accommodated.
Mr Doherty —Parliament would not be sitting.
Mr Orr —Elections generally take longer than 30 days, so it would blow out considerably the timing involved.
Mr Faulkner —I think also that it does not make it any more or less likely that the political will will be there to pursue a Prime Minister who is seen to be acting improperly in doing what they have done.
ACTING CHAIR (Mr McClelland) —On that issue, given that the act of dismissal occurs when the Prime Minister issues the instrument to the President, can you elaborate on your opinion that it is unnecessary to have the subsequent objection by the parliament or the House of Representatives to the Prime Minister's action constituting a vote of no confidence? Why does that rejection of the Prime Minister's actions not constitute a vote of no confidence in the Prime Minister?
Mr Faulkner —I think the point there is that there may well be a vote in the House which constitutes a vote of no confidence in the Prime Minister. But there is no provision in proposed section 62 which says that there shall be a vote and the vote shall be, if it is in the negative, a vote of no confidence. There has to be a very high likelihood that that will happen. The question then is: what is the consequence of a vote of no confidence? The fact is that a vote of no confidence in a particular minister, particularly in the Prime Minister, is a rather unusual event. It is not entirely clear, in the abstract, what the consequence would be. It might simply constitute a vote of no confidence in that individual, which would mean it would be necessary to find a replacement for the Prime Minister in the governing party, or it might be taken to be a vote of no confidence in the government which, essentially, would result in the end of the government.
To simply use the words that the Constitutional Convention used would have been, in our view, technically inadequate. It would have been necessary to go to the next step and say what the particular result in any particular circumstance would have been of a no-confidence vote. In order to do that, one runs into quite complex factual situations that have to be dealt with and so on. Perhaps, more fundamentally, one is moving beyond what the convention model actually prescribes. It talks simply of a vote of no confidence in the abstract. I would simply say that the likelihood is that there would be a vote of no confidence if there were political will to pursue the Prime Minister who was seen to be acting improperly.
ACTING CHAIR —At the end of the day, whatever system is proposed here, it has to be compared to what we have at present.
Mr Faulkner —Precisely.
ACTING CHAIR —And that is, effectively, that the Prime Minister could dismiss the Governor-General without any form of accountability?
Mr Faulkner —That is right. I think it is certainly fair to say that there would be an additional hurdle that is not there at the moment. One can talk about what sort of a hurdle is represented by the requirement that the Prime Minister notify the Queen to dismiss the Governor-General, but that is a different kind of issue. I think your point is a good one: there is an additional hurdle here compared to what we have at the moment.
Mr Orr —I do not think it is quite true to say that there is no accountability. Even now the Prime Minister would be accountable to the parliament, to the House of Representatives,
for that action. As Jim was saying, the additional hurdle here is that the Prime Minister is obliged to raise the matter in the parliament within a set period of time. It is a higher level of accountability by providing the procedure for that.
ACTING CHAIR —Are there any other questions on the issue of dismissal of the President? I wanted to step into another side issue. You have indicated that the current long title is adequate and in enough detail to explain the nature of the bill. But would there be any downside to include reference to the fact that the person chosen must be an Australian citizen and that they must be approved by a two-thirds majority vote of a joint sitting and, also, that the British monarch is being replaced as our head of state. Do you think there would be any problems if those three facts were included in the long title?
Mr Doherty —The long title is one of those issues which is probably not solved on the basis of the technical position. It would be quite open legally to add more of the elements of the model into the long title. I guess when the government looked at the long title it was trying to achieve something which was reasonably brief and give the sense of what was the thrust of this proposal.
If you start adding more elements to it then you run into the question of balance. For some people it would be valuable to include a reference to the public nomination process because that would be seen to make the appointment process more inclusive and the whole proposal more attractive. To others, in submissions that we got, they saw it as important to include a reference to the power of the Prime Minister to remove a President because they saw that as something that could be attacked and therefore would make the whole proposal less attractive.
So once you start looking at adding provisions, the issue then comes down to being one for judgment about what is the implication of that for the overall process. As I say, I do not think that is one that we can really add much to at a technical level; I think that is essentially one for ministers or for government.
ACTING CHAIR —Are there any other questions along those lines?
Ms ROXON —Not particularly.
ACTING CHAIR —Any other questions?
Ms ROXON —Why was this not drafted through parliamentary counsel?
Mr Doherty —It was drafted through parliamentary counsel.
Ms ROXON —But you had the task force overseeing it?
Mr Doherty —The task force fulfilled the role which would normally be done by a line department, providing the drafting instructions and responding to questions. Parliamentary counsel played the normal role.
Ms ROXON —With the two separate bills, the first that will be subject to the referendum and the other that will come into effect if the referendum is successful, does that mean—and I probably should know the answer to this but I do not—that the nomination process which is in that second bill can change without there being any need to have a referendum in the future?
Mr Doherty —Do you mean can the nomination process—
Ms ROXON —I can see everyone else behind you nodding their heads.
Mr Orr —The answer to your question is yes. In so far as the provisions in the Presidential Nominations Committee Bill are concerned, they are just general legislation made by the parliament. They are not of a constitutional form, so they could be amended at a later date.
Ms ROXON —So the committee process and the nominees and all those sorts of things can all change?
Mr Orr —Some of them are in the constitutional provisions. The basic provision is in section 60 but it allows the parliament to fill in the details from time to time.
Mr Doherty —That is also something that came out of the convention, this idea that the process may need to be amended in the light of experience over time.
ACTING CHAIR —How does the reference to prerogative rights compare in the proposed bill to those which exist in our Constitution at present in terms of reserve powers and prerogative rights generally?
Mr Doherty —I am not sure that we would lump the reserve powers and prerogative powers together. Jim, perhaps you can comment on this.
Mr Faulkner —At present there is no reference to the reserve powers at all in the Constitution. So the reference in the proposed section 59 would be a new reference to those. As you are no doubt aware, the bill would insert a new section 70A into the Constitution which would continue the prerogative powers currently vested in the Commonwealth.
ACTING CHAIR —Can you explain for us what the difference between reserve powers and prerogative powers might be?
Mr Faulkner —Prerogative powers are those powers essentially which derive from the common law powers.
ACTING CHAIR —Of the Crown?
Mr Faulkner —Yes, and they encompass a range of proprietary rights, proprietary interests, certain kinds of powers to make appointments, et cetera. They involve quite a wide range of things that a person might need to do in order to fulfil an office.
When people refer to the reserve powers, it is usually understood that they are referring simply to those powers which arise under the Constitution in the Governor-General, in the Australian circumstance, which the Governor-General can exercise without contrary to advice. There is quite some learning on the historical links between the prerogative and the reserve powers and the doctrines that have evolved which allow the exercise of the reserve powers without a contrary advice. That is generally the distinction that we are working with.
ACTING CHAIR —Will a reserve power be, for example, a right to grant assent or not grant assent to a bill?
Mr Faulkner —There is general agreement that there are four reserve powers. There is the power to appoint the Prime Minister; the power to dismiss the Prime Minister; the power to refuse dissolution, either of the House of Representatives or of both houses; and to force a dissolution of the parliament. When we are talking about reserve powers, that is what we are talking about.
In all of those cases—and all of those powers actually are regarded as arising under of the Constitution—there is no requirement that they be exercised with advice, and they can in some cases be exercised contrary to advice. That is really the distinction between reserve powers and what you might call ordinary powers. The principle of responsible government dictates that in general the powers of the Governor-General are exercised on advice, the exception being the reserve powers which may be exercised without or contrary to advice.
ACTING CHAIR —What is the significance of having these reserve powers specifically noted in the proposed bill whereas they are not in the Constitution at present?
Mr Doherty —You are almost forced to a position where you need to do that if you are going to identify that the other powers need to be exercised on the basis of advice. This was an objective of the Constitutional Convention, to give a bit more clarity to the basis on which those powers are operated. If you are going to say these powers need to be exercised on advice but have a provision for those four reserve powers to be exercised without advice, you need to make some special provision in relation to those powers.
The question then is how much detail do you go into to identify those powers and the basis on which they can be exercised. The approach that has been adopted is basically to say that for the constitutional powers other than the reserve powers, they will be exercised on the basis of advice. For the reserve powers, they can be exercised in accordance with the constitutional conventions, and those conventions are basically the conventions that now exist and have been preserved under other provisions.
ACTING CHAIR —Is there a specific provision preserving those constitutional conventions?
Mr Faulkner —Yes, there is clause 8 of the proposed schedule 3 of the republic bill. That provision is intended to continue the capacity of the constitutional conventions to evolve. Proposed section 59 would actually continue the reserve powers and the constitutional conventions relating to their exercise. Clause 8 would put beyond doubt the existing capacity of those conventions to evolve, to continue beyond the point at which the
Commonwealth severs its links with the Crown, the concern there being that given that these conventions have evolved in a constitutional monarchy there is an argument that one needs to provide expressly for the continuation once those Crown links have been severed. We see that provision as putting that beyond doubt.
ACTING CHAIR —What schedule is proposed section 70A contained in?
Mr Faulkner —That is actually in schedule 1. It would go into the part of the Constitution dealing with the executive government. That is on page 6 of the bill. That continues the prerogative.
ACTING CHAIR —Are you able to give an example of what might be a crown prerogative that currently exists?
Mr Faulkner —It is generally regarded as being the power to declare war and make peace, and prerogative mercy. They are the kinds of things that are often talked about in historical terms. They have been largely superseded by provisions of the Constitution itself, by statutory provisions, a basic point being that the prerogative is subject to legislative provision. So where the parliament provides for something, that is the end of the story, essentially, and to a great extent a statutory provision, in the form of either the Constitution or ordinary legislation, has taken over the area of the prerogative's operation.
ACTING CHAIR —A submission by Dr Nick Seddon, who is with the Australian National University, suggests including in section 70A, after the words `until the parliament otherwise provides but subject to this Constitution', the words `any immunity privilege or rule of statutory interpretation', to pick up that point. Do you think that is a valid suggestion?
Mr Faulkner —I might just say on that point that the exposure draft version of this provision had included something more like a list of the terms that have been used to describe various elements of the prerogative, which is what we are talking about here. We received a number of submissions going to quite how one ought to describe those various elements of the prerogative and we decided, on reflection, that the safest way to refer to the prerogative—in so doing, capturing all of the various elements, because there are a number of different ways they have been described over the years—was to use the very general term `prerogative'. That was in the expectation—I think quite reasonable—that a court or any relevant person looking at this would understand that reference to be a reference to all of those prerogative powers, immunities, advantages and so on deriving from the royal prerogative. We see this is a safer mechanism for achieving the kind of thing that Dr Seddon may have had in mind.
As I say, our original version did have a rather more exhaustive list. The concern was that, no matter how many terms you put in, you might be seen to have been trying to put up an exhaustive list which missed something along the way. There is nowhere you can turn to, to find an absolutely authoritative statement of how you should describe all of the various elements of the prerogative.
Mr McCLELLAND —Do you think it is sufficiently accepted that there are conventions regarding the exercise of that crown prerogative? Would people generally accept that it would be inappropriate for the current Governor-General, or indeed the Queen of England, to go and declare war, that she would not do it or that our Governor-General would not do that without advisement?
Mr Faulkner —That is right. With regard to the powers of a particular office holder, generally the principle of responsible government dictates what action can be taken. That general principle pervades the Constitution, including things which might arise in relation to prerogative.
Mr Doherty —But I think there is a fundamental point in the question that you are asking. The prerogative powers, to the extent that they would be exercised by the President, would be exercised on the basis of advice. They would be in that category of `other powers'. It would only be those four reserve powers that we have identified which the President would not be able to exercise without advice. So the power to declare war would be exercised as it is now declared, on advice of the government, rather than as something the President could decide to do.
Mr McCLELLAND —Where is that non-reserve power distinction drawn?
Mr Faulkner —In 59.
Mr McCLELLAND —So, in a sense, what is proposed is to give greater protection to the exercise of the executive power, in the sense that non-reserve powers, including the exercise of what is now accepted in conventional common law to be crown prerogative, would only be exercised on advice, other than the reserve powers. Is it a fair statement that, in a sense, there are greater protections contained in the proposed bill?
Mr Orr —Yes, greater protections, in the sense that it is now expressed in a formal way in section 59. What I think generally is accepted to be the position, which is what I think John and Jim just outlined—that is, there are reserve powers which are constitutional powers which sometimes are not acted on on advice by the Governor-General. But for everything else—constitutional powers, statutory powers, prerogative powers—the Governor-General does act on advice. I think that would be generally accepted to be the position, but you are right, it is nowhere stated in the Constitution. It is an underlying assumption rather than a statement. I think you are also right, though, because section 59 now articulates that as a principle. To that extent, it entrenches it in a more formal way in the Constitution.
CHAIRMAN —I will ask a question that I understand has not been asked. One of the things that interested me was that the Constitutional Convention recommended two oaths. In fact, what we have in the bill is one. Can you explain to us why that was done?
Mr Faulkner —Briefly, what was suggested by the Constitutional Convention was forms of words in the form of `pledges', in one case. The view is taken that it was more appropriate, in the case of the oath that the President would take, to have a statement which reflected the fact that the President was already a citizen and was taking up office, rather than pledging allegiance to the polity, which is the case with members of parliament.
CHAIRMAN —Did you receive many submissions on that issue?
Mr Faulkner —I cannot be sure, but not a particularly large number, no.
CHAIRMAN —Does anyone have anything else? We could move on and have the round table now.
Ms JULIE BISHOP —This may have been covered, so please stop me if it has. The question that I have relates to the position that could possibly occur in three instances, which can all be taken separately: firstly, if the nominating committee does not agree with a nomination; secondly, if the Prime Minister does not agree to accept the nomination of the committee; or, thirdly, if the Leader of the Opposition does not accept the Prime Minister's nomination. In each instance, what is the position, how is it left and what is the deadlock that needs to be broken? What is the resolution to the deadlock that might occur if, firstly, the committee cannot agree; secondly, the Prime Minister knocks back the nomination; or, thirdly, the Leader of the Opposition knocks the Prime Minister's nomination?
Mr Doherty —I will try to deal with those together. The provision requires the nominations committee to provide a report to the Prime Minister. That is in the Constitution and the bill itself talks of a short list going with that report. I think that the committee does not need to resolve on a single nomination, so in the event of problems resolving it, you may find that you will end up with a larger short list than you otherwise would.
Ms JULIE BISHOP —A long short list?
Mr Doherty —A long short list, definitely. There is no provision at the moment to say how long or short the short list should be. The Prime Minister cannot proceed until he has a report from the committee to put forward a nomination, but that report may include, I suspect, no short list under the constitutional provision, or a short list in the form that the committee decides after resolving it. I do not think you have got a serious problem of deadlock at the committee stage.
Ms ROXON —There is nothing in the way the bill is currently drafted, as I understand it, that requires the Prime Minister to act upon it or for it to be public or for anyone to do anything about it if he does not.
Ms JULIE BISHOP —That was the next point.
Mr Doherty —That is the next stage, yes. There is no requirement for the Prime Minister to accept someone from the short list from the committee.
Ms ROXON —Is that not contrary to the convention's recommendation?
Mr Doherty —No, that is in line with the discussion at the convention. You have to appreciate, I think, that there would be strong public pressure as well. I do not think the Prime Minister could avoid making a nomination or that he could lightly depart from what was in the short list, but legally there is no requirement on him to adopt someone from the short list or to move forward with the nomination at all, in which case the existing President
would continue in place, if they are prepared to do that. If they resign, then you would have the acting arrangements take over.
Ms JULIE BISHOP —If in the establishment of this regime there is no existing President then the Governor-General remains in place?
Mr Doherty —No.
Ms JULIE BISHOP —If this happens first off?
Mr Doherty —There is provision for an Acting President to take place if there is no President appointed at the beginning. I think the situation in relation to the Prime Minister not proceeding is much the same in relation to the Prime Minister not being able to secure the support of the Leader of the Opposition. The process does not move forward until he can secure that support. It would be possible to convene a joint sitting and to put the nomination and to use that to try to get pressure on the Leader of the Opposition to agree, but unless the Leader of the Opposition seconds the motion I do not think you could have an appointment made at that joint sitting.
Ms JULIE BISHOP —So there is no trigger to resolve those sorts of deadlocks?
Mr Doherty —That is right; there is no deadlock mechanism there. The mechanism is that you do not dismantle the arrangements you have in place until there is a substitute.
Mr Faulkner —You are right to say that there is no trigger in the sense that you are talking about, but the provisions have been designed to avoid any kind of constitutional hiatus that might occur if there is delay. There will always be someone there; the system does not fall apart because one element of it is not working as well as it should.
Ms JULIE BISHOP —Even though it would be entirely unsatisfactory, it does not fall apart.
Mr Faulkner —That is right. Indeed, I think the point ought to be made that the fact of its unsatisfactoriness is one of the things that we would see working in favour of resolution. One has to recall the obvious factor that we are dealing with a Constitution and there are limits on what kinds of prescription you build into it. It is a question of judgment but the fact that these things would appear to be improper and untenable are all very important in pushing towards their resolution through the structures that are there.
Ms JULIE BISHOP —I was just interested in section 60 where it says, `The Prime Minister may,' which is the point Nicola made, and then `if the Prime Minister's motion is seconded by the Leader of the Opposition in the House and affirmed'. There does not seem to be any mechanism for bypassing a seconding of it by the Leader of the Opposition.
Mr Faulkner —I agree with that.
Mr HAWKER —Supposing the Prime Minister dismisses and then serially dismisses the Acting Presidents. There is an election and the Prime Minister is returned and then the Prime Minister cannot agree on a President. What happens then?
Mr Doherty —If one Acting President is removed another one will take their place, so you will always have an Acting President stepping in.
Mr HAWKER —What if he removes the next one?
Ms JULIE BISHOP —He is a serial remover.
Mr HAWKER —He is serially removing them. It is an unusual situation.
Ms ROXON —Your Prime Minister would not do that, would he?
Ms JULIE BISHOP —This Constitution is meant to stand around for hundreds of years though.
Mr Orr —In terms of those deadlocks, it is very difficult to design a system which avoids at some point in time the possibility of a deadlock. You have a nomination process which, you are right, requires various steps to be gone through. It is possible for those things not to be gone through for a whole range of reasons—in particular, where you are looking for a consensus President, if you cannot get the Leader of the Opposition or the parliament to agree. The way it has been designed is not to try to resolve those deadlocks by some other complicated mechanism which will create more problems than they will solve, but by making sure that there is always a safety net there; having someone in place.
Mr HAWKER —What is the safety net?
Mr Orr —In terms of the first President, if there is no first President appointed, the longest serving governor available will be the President and there will be a cascading ability to work down six of those if necessary. It is similar with regard to a vacancy within the position of President until a new President is found. There is the longest serving available state governor to fill that position and there are six of those to work down as well. That is, therefore, seen as a very significant safety net to ensure the stability in the system whilst possible problems about appointing a new person are overcome.
Ms ROXON —Is there any technical reason that you could not provide in the Presidential Nominations Committee Bill for the nomination process, or the short list process, to be made public? A number of the submissions that we have received have said that—picking up on your point—there would be a lot of pressure obviously for any Prime Minister to choose or nominate a person on that short list. Are there any technical reasons why the provision that that short list be made public cannot be in the bill? I understand that it is not there now, but is there really any reason why it could not be?
Mr Doherty —Legally I cannot see any reason why you should not have a process that was more open. In policy terms, the implications of that for the process—
Ms JULIE BISHOP —Specifically ConCon required it to be confidential.
Mr Doherty —Yes.
Ms ROXON —That is not my question; my question is whether there is any reason that it cannot be there.
Mr Doherty —Legally, no. In policy terms I am not sure this is the place to track why ConCon came to that recommendation.
Ms ROXON —I was not asking you the policy question.
CHAIRMAN —I think we will move on and ask our other respondents to come. Thank you very much for assisting us. When we have done our travelling around the states and have talked to as many people as possible, before we wrap it up, write the report and make any recommendations, the committee might decide to ask you to come back again to clarify any particular issues that we have concerns about. If that would meet your approval, that is what we might do.
Mr Doherty —Thank you. We are more than prepared, if anything comes up that we can provide you advice on during the process, to assist with further explanation. We would be happy to look at that.
CHAIRMAN —Thank you for that. It is hard to anticipate exactly what concerns will arise and to what extent the committee itself will have concerns about those issues and want to address them. Thank you very much for your submission as well as your advice and the revised bills. We have no choice; we have to move very quickly.