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Joint Committee on Republic Referendum
Proposed laws, Constitution Alteration (Establishment of Republic) 1999 and Presidential Nominations Committee Bill 1999
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Joint Committee on Republic Referendum
Proposed laws, Constitution Alteration (Establishment of Republic) 1999 and Presidential Nominations Committee Bill 1999
ACTING CHAIRMAN (Mr McClelland)
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Joint Committee on Republic Referendum
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ACTING CHAIRMAN (Mr McClelland)
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ACTING CHAIR (Mr McClelland)
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Content WindowJoint Committee on Republic Referendum - 28/07/99 - Proposed laws, Constitution Alteration (Establishment of Republic) 1999 and Presidential Nominations Committee Bill 1999
CHAIRMAN —I now welcome our academic friends, three of whom are reappearing before the committee, and one, Professor Cheryl Saunders, is appearing for the first time. Thank you very much for coming today. You attended the earlier session this morning, so you have heard some of the issues that this committee has addressed as it has gone around the country—some contentious, some not contentious, some very important and some probably ridiculous. There is a great divide amongst the academic community particularly. My colleague Nicola Roxon said that she thought all the republicans were agin the long title. As I recall, her former professor—and very much a republican—who spoke to us in Perth, thought the long title was terrific. Regardless of that, do you have a brief reopening statement that you would like to make today?
Prof. Saunders —I will be appearing before you again this afternoon, when I will make a brief opening statement. It is a question of whether you would just like to put questions to us to save time—whatever you think would be the simplest way to proceed. We know there are a number of things that you particularly want to address to us today.
CHAIRMAN —We have until in 1 o'clock, when we will turn into pumpkins, so I am offering you the opportunity to say something briefly about the issues that concern you. Then we can get to the questions that we have that are particularly relevant at this point in the debate.
Prof. Zines —I have sent some belated and somewhat cryptic submissions. I could say a few words about those, if that would be all right with you.
Prof. Zines —The thing that has troubled me most—and I just do not understand it, actually—is why the covering clauses and the enacting clause have been left as they are, because that creates an extraordinary situation. Assuming all this goes through, you open up the Constitution Act and you see that the people of several colonies have agreed to unite under the Crown. You get the act enacted by `the Queen's Most Excellent Majesty' and then the first substantive provision you get to is a definition of the Queen. All that is inconsistent with the basis of what follows.
To make it worse, the two operative sections, given that the Convention said operative sections should go into the Constitution itself—5 and 6 of the covering clauses—have all been redrafted in a modern form and put at the end of the Constitution in sections 126 and 127, yet the old 5 and 6 are still lying there. In fact, if any Australian or non-Australian
wants to find out how our system works, they are going to get the wrong impression when they start reading. They will not know until the end of the Constitution that two of the early sections have been quietly overruled and yet have been allowed to lie. This is contrary to the resolutions of the Constitutional Convention and I just find it a bit extraordinary and very muddled for anybody. There is no indication of why it was done. All the Attorney-General said in the second reading speech or in the explanatory memorandum was that, if it were intended to get rid of them later, that could be done either by referendum or by all the states agreeing.
I have no need to state again the question of the justiciability of the reserve powers; a lot of people have already gone into that. With the advice to the President, again it strikes me that a great opportunity has been missed because, while the three sources of advice to the President in section 59 are clear—and I think that legally they are effective—if you want to find out how the system operates, you get no help. Section 64 in its new form—and indeed in its old form—says that the President can appoint persons—that is, ministers—to administer departments. But you do not know that the Prime Minister is appointed as a result of a reserve power and that the other ministers are appointed by the President on the advice of the Prime Minister only. The draft Constitution drafted by the Constitutional Commission set all that out very clearly, and I think it indicated how the system operated, but at the moment we have for the first time ever a reference to the Prime Minister but no indication of who appoints him or her or how that person is appointed.
The explanatory memorandum says that the question of whether the President is incapable, so that the Prime Minister can appoint an Acting President, is up to the Prime Minister. But that is not so. The Prime Minister's power is only if the President is suffering an incapacity. That is a question of fact and it is one that a court will examine to see whether the power of the Prime Minister to appoint has come into existence. So, if it is intended that the court should not look at it and that the Prime Minister should have complete mastery of this, it should, first of all, depend on the basis of the opinion of the Prime Minister and also it should be indicated that it is not justiciable. But either the task force or the draftsman does not seem to like putting in provisions saying that things are not justiciable, and I do not know why.
The last thing I want to mention is that section 58—schedule 2, item 23—has the power of the President to refuse to assent to bills. The new provision leaves in `at his discretion'. You could argue that gives the President personal discretion and that it is not subject to the advice provisions because it does not appear anywhere else in the Constitution. It was originally put in because it did give the Governor-General a personal discretion to decide whether to send things back to Britain or what have you. I think it ought to be taken out of section 58. The word `may' is the usual word you use where there are two possibilities. It would be clear then that section 59 operates to require the President to act on advice, although I do raise this question: should a government have the power to advise the President not to assent to a bill that has gone through both houses of parliament, particularly when there is power to refer it back to that parliament for reconsideration? That is all I want to say.
CHAIRMAN —Thank you for that. Mr Williams?
Mr Williams —I will also make a brief opening statement to respond to some specific points in the submissions. Firstly, I do not come to you with another long title.
CHAIRMAN —Thank you; I think we have enough.
Mr Williams —Perhaps I can help you by just suggesting some criteria that might be applied. I think that there are three. Firstly, it must be accurate as to content; secondly, it must be short; and, thirdly, it must be in plain English—and I can sense that coming out in the early discussions. I think they are the critical criteria, and I am not sure that the existing long title matches each of those. It may be short but I am not sure it accurately reflects as to content exactly what this bill would achieve.
The second point is that I would like to make brief mention of the fact that the bill says the President could not be a member of a political party. In my submission I argue that is not appropriate. I also see that the Victorian Premier has said that. But, even if it is to be retained, I think that as a minimum you must establish what is a political party. I do not think that we can be sure that it would necessarily only be those parties participating under the Commonwealth Electoral Act. As the Victorian Premier suggested, it might be other groups advocating a particular vote in an election, such as lobby or other groups. That may be somewhat unlikely, but I still think it is uncertain as to what the result would be.
The third point comes as to the `chosen' question and the nomination process. My reading of the language is that I think the likely result is that `chosen' is chosen at the time parliament approves that person. But, looking at the Sykes and Cleary case back in 1992, I think that it would be perhaps a dangerous thing to take that interpretation as the only possible interpretation. It is certainly open to the High Court to take a broader view. If you were to remedy that problem as the committee is interested in doing, I think the appropriate solution is not to do anything to section 20 of the presidential nominations bill. Perhaps there might be some consequential changes there, but indeed what must be changed is the constitutional text itself, because the constitutional text is the ultimate prevailing document. Indeed, the High Court may say the presidential nominations bill in effect does not contain the relevant meaning; it is of supplementary value only but cannot change the meaning derived from the Constitution. So, if you are concerned about it, you must amend the Constitution itself.
The next point is about section 59 of the Constitution. My view is that section 59 is drafted well and I would not suggest any changes to that, with one minor exception. I would pick up the point made by several people, and in particular by the draft of Professor George Winterton, to say there should be an extra short provision saying that the reserve powers are not justiciable. I think there is some doubt as to that and I think it should be clarified in that particular provision. Otherwise, I would not make any changes to section 59.
The next point is about federalism and the states, and in particular the submission of Jeremy Buxton, which the committee has referred us to. I would disagree in several areas with that submission. In particular I think that it is quite possible for the states to retain their links, and schedule 2 at clause 5 would achieve that appropriately. I cannot see why any amendment is needed to that. Secondly, I also think that the point that perhaps a schedule would lead to some inappropriate centralism of power is misplaced. What the section
actually says is that we are recognising the unity of the Australian nation. That is quite a distinct concept from centralism and, again, I think any fear there is misplaced.
What this leads me to is one further point. My submission is that there should be an alternative procedure available to the states. Currently, a majority of the states would need a separate, perhaps costly, perhaps inconvenient referendum to make the transition to a republic. That would simply be because they have certain provisions entrenched in their own constitutional arrangements. My submission is that we should follow the path of the Republic Advisory Committee, who suggested that we should put a clause in the Commonwealth Constitution to allow a parliament—say, with a two-thirds vote—to overcome its entrenched provisions to make a break with the monarchy without actually having to have a separate referendum. It would not force them down that path but simply give them an alternative mechanism should they so wish not to have a referendum for whatever reason. It may be that the vote in a state is so high that indeed a referendum is simply an anticlimax after the event.
The only other point I want to mention in my opening statement is as to dismissal. One of the questions put to us was, `Why is a delay relevant or useful?' My own view is that a delay is entirely appropriate for two reasons. I think that it will allow greater scrutiny and accountability of the process and also some form of cooling-off period. I think that if a Prime Minister can sack, simply immediately, a President, then that is inconsistent also with the status of the President being appointed by both houses. I think the appropriate compromise would not be to have another joint sitting, which I think is to put too high a barrier in the path of removing a President, but to allow the government to do so by achieving a majority vote in the House of Representatives, not as an afterthought of dismissal but as a component of the actual dismissal, perhaps on a motion put by the Prime Minister.
CHAIRMAN —Thank you for that. Anyone else?
Mr Rose —I might just address a couple of those points. On that last issue, I still maintain my disagreement with George Williams from the last meeting that we had. I think the Prime Minister ought to be able to dismiss the President instantaneously and that any delay is undesirable because of the situations that we discussed, that any delay would give the President the opportunity to dismiss the Prime Minister. My view is that the political responsibility lies with the Prime Minister, and the electorate can have its say at a later stage if there is disagreement over what has been done.
On some of the other points that have been mentioned, Professor Zines and the covering clauses, I certainly agree with him that what is proposed here leaves a rather messy result. I suppose the reason why the covering clauses were not covered in this exercise is some nervousness as to whether a referendum under section 128 could alter the covering clauses. I think I would be fairly bold on that issue and say it can be done, but there is some disagreement amongst the commentators on that. It probably does not do too much damage, though; it is just inelegant.
On the other points as to whether the question of the incapacity of a President is a justiciable issue, I would say it clearly would be. On the desirability of introducing a
provision that the reserve powers should not be justiciable, I think that would be highly desirable, though it may be argued that the provision as it stands in the bill would be ambiguous, and one could take into account what is set out in the explanatory memorandum to the effect that there is no intention to make anything justiciable that is not already justiciable. I think that is all I will say at this stage.
CHAIRMAN —Thank you very much. Mr Williams, can I say with respect to the issue of the states that it is our understanding this morning that every state has now passed legislation with respect to the Australia Act to come into line, so I would have thought that it was this committee's view it is no longer an issue.
Mr Williams —They would still need a referendum. That is apart from that.
Mr PRICE —Queensland and Western Australia, I think.
Mr Williams —Actually, all states would.
CHAIRMAN —I understand they have referendums. I say to you that every person that spoke to us on behalf of a state spoke extremely strongly with respect to states' rights, and they did not want the Commonwealth stuffing around with their constitutions. I, quite frankly, would be loath to make any recommendation whatsoever to this committee in that respect. They were extremely strong on that point. The second issue is that you say that you believe it would be desirable with respect to the qualifications for the position of President that we change the Constitution with respect to the qualifications for members of the House or Senate.
Can I say to you that these issues have been debated by the House of Representatives and by the Senate over and over again. They have been examined by committee after committee of procedure, or whatever, and recommendations have been made and not made, and we go back and forth. But there has never been unanimity of view with respect to changing the Constitution regarding those items which decide whether or not we are eligible to be members or senators because of those difficulties.
We are dealing here with an issue. The issue is, I thought, the change from a constitutional monarchy to a republic. I would have thought that we could deal with those issues of eligibility as a matter of timing rather than of substance within the legislation or, indeed, if necessary, within the Constitution, but without having to alter the requirements for membership of the House of Representatives or the Senate.
Mr Williams —I agree, and it would not affect those at all. My point goes only to section 60 of the Constitution, which contains the word `chosen'. I was responding to the committee's concern that the word `chosen' might mean the process beginning at the point of nomination going through to—
CHAIRMAN —Okay. Thank you.
Mr Williams —That was the limit of my point.
CHAIRMAN —Yes. I do not think we like `chosen' very well, either.
Mr Williams —All I am suggesting, indeed, is that just changing section 20 of the nomination act may not be sufficient because the word `chosen' in section 60 would override whatever is contained in the nomination act, it being part of the Constitution. You should also change it there, if this is a point that you are concerned about.
CHAIRMAN —Thank you for that. I am not a lawyer, so this word `justiciable' is a new part of my vocabulary. It interests me that there seems to be very divided concern amongst the constitutional academic community and others as to whether or not any provision of the Constitution might today, or might some time in the future, become justiciable by the High Court. My question to all of you is this: where some have said we might make specific written provision that such issues cannot be justiciable at some future time—decades, millennia or whatever—when there is a crisis and it is resolved in a certain manner or by a certain procedure, and then people still question whether that is still relevant at that point in time and whether it is a proper resolution of that conflict, why would we preclude or attempt to preclude an outside look at these procedures by trying to cut off our nose and say, `Never, never, ever'? I would be happy to hear from all four of you on that issue.
Prof. Zines —I agree with you. All I was saying was that the explanatory memoranda or the second reading speech—I do not remember which—suggested that a number of things were not justiciable, and that the reserve powers would not be. I was saying that if that is the policy then the bill should very clearly state it. My view—and it is not shared by everybody; it is shared by Professor Winterton—is that they are justiciable to a degree. My reason is that the High Court has said very clearly that there is an object in the Constitution of representative government. If the Governor-General does not comply with the conventions, then clearly representative government and responsible government as a particular form of representative government would not come about. Therefore, it seems to me to follow that the Constitution requires the Governor-General to act on advice where the conventions require him to act on advice, and when it comes to the reserve powers, requires the Governor-General to exercise those powers for the purposes that relate to representive and responsible government.
So if, for example, the Governor-General decided not to choose the person who has the confidence of the House of Representatives as the Prime Minister, my own opinion is that that would be justiciable. Not everybody has that view, and it is not clear to me that if we had a President that would still apply, because the President, to a degree, is representative in a way that the Governor-General is not. The Governor-General, he or she, has the approval of two-thirds of the people's representatives, which provides a fairly solid democratic base for the exercise of power. I am perfectly happy in my own mind that this should be justiciable, because I think that in the example I have given you the courts should stop it. Similarly, if the Governor-General got rid of a Prime Minister because he thought the government's policies were disastrous, that would be contrary to the conventions. Not everyone would agree that it is justiciable, and I am sure Dennis Rose would not agree with that. If that is the view, then it seems to me there should be a clear statement to that effect; that is all I am saying. Certainly in those specific cases like appointing an Acting President there needs to be something, I think.
Prof. Saunders —Mr Charles, I do tend to agree with what Professor Zines has just said. I think that in certain cases you might find that the existing provisions are justiciable, whether on administrative law grounds or constitutional law grounds of the kind that he mentioned. I am sure that if you were to have a repeat performance of 1975, or anything like it, there would be an attempt to approach the court. Whether it would succeed or not would be another matter. So it follows that, if this new clause were to be inserted in the Constitution, there is the same sort of chance that it might be justiciable at the margins also—perhaps a slightly greater chance, because the clause is slightly more specific. On the other hand, that is diminished a bit by that statement in the explanatory memorandum that says, in effect, that it is not intended to alter the situation as far as justiciability is concerned.
Mr McCLELLAND —Is it a bad thing that on the margins it may be justiciable?
Prof. Saunders —I do not think so. That does not concern me. I agree with what I think the chairman's point of view was, that that may be a useful mechanism. Nor do I think that some of the other concerns about justiciability that have been put forward, such as the length of time it would take to approach a court in a time of emergency, are a problem. The court has shown that it is perfectly capable of dealing with things quickly when it needs to deal with things quickly. So, on balance, I would be inclined to leave it as it is.
Mr Rose —Chairman, I agree with my colleagues that some of these issues may be justiciable. As far as this exercise is concerned, my preference would be to leave the position as it is. To the extent that they are justiciable, they should remain so, and if they are not justiciable now, they should not become justiciable. So the explanatory memorandum's approach is, I think, the best one.
Whether it is a good thing that they are justiciable is another issue, of course. It is not a legal issue. I would be very hesitant to see the judges of the High Court getting involved in these questions as to what are the conventions of the Constitution. There was a lot of debate about them, and it is difficult to know how to establish it in a court of law. There is also the timing question and the sorts of crises where these issues arise. I do not think it is at all appropriate to be going off to court, and I am not at all confident that they can be answered as quickly as Professor Saunders's optimism suggests. I think it would be a good thing if they were not justiciable. But if they are to any extent, then just leave the position as it is.
Mr Williams —I might help you to get a split panel on this. I would agree with Dennis Rose's position. I have two reasons for saying why we should put in a provision which says the courts should not deal with these issues, but I would limit it only to the reserve powers, so it may indeed be that other issues involving administrative discretions would be justiciable.
The two reasons I have are, firstly, that I think that issues such as the dismissal of a Prime Minister or other reserve powers are best left to the political process and ultimately to the Australian people. It is not appropriate that the High Court intervene in those matters. Secondly, there is the desire to achieve a minimalist position. I think that this bill does increase—probably a bit more than slightly, as Professor Saunders suggested—the possibility that indeed these discretions are justiciable. If we want to avoid increasing that possibility as a result of this amendment, perhaps the countervailing approach would be to say that the
best position that is currently recognised is that the core reserve powers are not justiciable and that it is appropriate to fix that if we want to keep things as they are.
CHAIRMAN —To the largest extent I think we can confirm—and most responses have said this—that the bills very faithfully reflect the outcome of the Constitutional Convention, with perhaps a couple of minor question marks. One of those question marks is the failure of the bills themselves to specify the effect in the case of a dismissal of a President by a minister where that decision is reviewable by the House of Representatives within 30 days. The Constitutional Convention, as I recall, recommended that that be ipso facto a vote of no confidence in the Prime Minister. The bills and the Referendum Taskforce, however, have chosen to remain silent on that issue. We would appreciate your views.
Prof. Saunders —Can I start the batting on that. All of us who know a bit about the way the system works know that it is pretty improbable that, if a Prime Minister lost a vote in the House in those circumstances, he or she would survive.
CHAIRMAN —How could he or she?
Prof. Saunders —It would be very difficult.
CHAIRMAN —But how possible? Is there any skerrick of a theoretical possibility that you can think of?
Prof. Saunders —Not off the top of my head.
CHAIRMAN —Very good.
Senator ABETZ —Would it not be possible, though, for some independent members of the parliament to say, `I disagree with the Prime Minister's decision on balance and therefore I vote against it; but, in fairness, I do not think it warrants the dismissal of the Prime Minister, because I think he is doing a good job on the economy, unemployment and all of the other matters that the people are genuinely concerned about'?
Mr Williams —Indeed, there was a situation like that in Queensland with the censuring of the Attorney-General by the lower house—there is only one house there—and that is obviously a situation where you might have a split between support for the government and support for the government on a particular issue.
Prof. Saunders —That is a good example. What I was actually going to say was this: as the parliament presently is and as our political practices presently are, it is a bit hard to think of an example. But, of course, if the parliament is evenly balanced, if we become a little less sensitive to the parliament rejecting government motions, then the situation may change. Having said that, I still think that there would be some value in making a statement in the bill that says it amounts to a vote of no confidence.
Mr McCLELLAND —In the Prime Minister or in the government?
Prof. Saunders —I know that the Referendum Taskforce made the point earlier on that it is a bit odd to have a motion of no confidence in the Prime Minister. I do not see why it should not be a motion of no confidence in the government in those circumstances. Maybe you do not have to spell it out; you could just say that it would be equivalent to a vote of no confidence. But I say that partly for cosmetic reasons. I think people are a bit confused about the reason the bill does not go on to pick up the recommendations of ConCon in these circumstances.
Mr Williams —One question which has been puzzling me is what happens after a vote of no confidence? Does the old Prime Minister simply go to the new President and re-form the government? Is that what would happen? It seems a somewhat strange situation where you still have the majority there. It is perhaps anomalous that you could have a vote of no confidence but, essentially, someone can re-form exactly the same government. So it would not necessarily lead to an election; it would depend again on the decision of the Acting President.
Mr McCLELLAND —But, again, it comes down to whether it is a vote of no confidence in the Prime Minister or in the government. Your concern does not arise if it is only in the Prime Minister.
Mr Williams —That is right. Maybe that is a reason. I accept Professor Saunders's point that it would make sense to put it as a vote of no confidence in the government. But I would suggest, on balance, that any vote of no confidence perhaps just be on the Prime Minister, otherwise it would lead to some anomalies in what happens afterwards.
Mr Rose —If there is to be anything about a vote of no confidence, it should be limited to the Prime Minister. My inclination would be to leave it as it is. If the House wants to move a motion of no confidence, they will do it.
Prof. Zines —I agree with Mr Rose. It seems to me that only the House of Representatives can decide whether they have no confidence in the Prime Minister. I do not think a law should say, `This has just indicated that you have no confidence.' Let them decide what they want to do.
CHAIRMAN —The difficulty I have—and Professor Saunders and Mr Williams have indicated some minor degree of support for this issue—
Mr Williams —I would agree with my colleagues that it should not be in there at all. I was merely saying that if the committee decided it should be there—
CHAIRMAN —Okay. Professor Saunders seems to be the odd one out. I am having great difficulty with this. My question to you, then, Professor Saunders, is how on earth you codify what the hell a vote of no confidence is.
Prof. Saunders —I do not think you can go on and say, `And the following things will occur.' I agree with that.
CHAIRMAN —If you cannot codify, shouldn't you leave it the hell alone and leave it up to the parliament?
Prof. Saunders —Perhaps. This is not a big deal as far as I am concerned. All I am saying is that this is, as you said, one of the aspects in which the bill does not pick up what ConCon said, and it is not entirely clear why that is.
CHAIRMAN —That is the reason I raised it. By the same token—I am not sure whether or not you have views; it is not part of the constitutional bill but rather part of the nominations committee bill—the Constitutional Convention recommended this great spelling out of the diversity of the Australian public that should be represented on the committee that nominates the potential President to the Prime Minister.
Ms ROXON —The great spelling out of six words—federalism, gender, age and cultural diversity.
CHAIRMAN —Regardless, Nicola, in my view it said that we should have a codification of representatives of the broader Australian community—which, by the way, has to last for a very long time. The bill itself fails to act on that recommendation of the Constitutional Convention and leaves it to precedent. Could I have your views on that issue?
Prof. Saunders —It is a question of which end of the table we start at with these matters. Again, I think the recommendations of the ConCon should have been followed in the bill to at least some degree. I do not see why the bill could not say that, in appointing these 16 members, the Prime Minister must bear in mind the diversity of the Australian community. I know that is very vague.
Mr McCLELLAND —Paragraph 20 of the explanatory memorandum states that, in appointing the community membership, prime ministers shall take into account so far as practicable considerations of federalism, gender, age and cultural diversity. Would that be an appropriate form of words?
Prof. Saunders —If you want to spell out those particular aspects of diversity then that is one way of doing it. Or you could simply talk about diversity, if you are trying to speak for all time. I think there are advantages in doing that, and for two reasons—
Mr DANBY —Sorry; advantages in sticking to the second?
Prof. Saunders —No, advantages in spelling it out in one form or another. I would be inclined just to talk about diversity more generally, but I think there are two reasons for it. One is that this was a very important aspect of the compromise struck by ConCon. If I can put on my Constitutional Centenary Foundation hat for a moment, this is something that we get put to us all the time: why is the Prime Minister allowed to choose 16 people, and how is that discretion going to be exercised?
Secondly, even though a reference to diversity would be very vague and general, I think it brings a little accountability along with it. When the appointments are made, people will be able to say, `In my view, does this really reflect diversity?' We may well have perfect
faith that successive prime ministers will try to make those 16 people broadly representative of the community, but I think there would be great advantage in saying so in the legislation.
Prof. Zines —I agree with Cheryl. It is in the legislation, so your remark that it would stay for all time would not be true, because it is not in the Constitution. It is in the bill, so it can be changed.
CHAIRMAN —Until such time as the legislation is changed.
Prof. Zines —It can be changed, yes. But it is different; the Constitution could go on interminably. Setting out criteria would also act as a basis for sound criticism if one wanted to say, `The Prime Minister did not act properly, because the act says such and such.'
Mr Rose —I agree with what has been said by Professor Saunders and Professor Zines.
Mr Williams —I also agree. I think it was a recommendation of the Convention. Indeed, I found it quite strange that it was only in the explanatory memorandum. If it is important, then it should also be put in the bill. I share Professors Saunders's view that perhaps a reference to diversity might be sufficient, for fear that in trying to spell it out in too much detail you end up missing someone. I think that there should at least be a reference to diversity.
CHAIRMAN —In the bill or in the explanatory memorandum?
Mr Williams —In the bill. If it is important, it should be in the bill. Nobody reads the explanatory memorandum. When you are actually dealing with, say, community education, you need to have a statement in the legislation that can be pointed to, because that is what people will read. Explanatory memorandums are often very hard to come by, and people will often not be aware of them.
CHAIRMAN —Thank you for your views.
Mr DANBY —I have three questions for the people we have here this morning. Two I am asking under the Voltaire dictum on behalf of Senator Stott Despoja, and certainly, as a member of the House of Representatives, I swallow while I ask the first. The committee has heard evidence, such as that presented by Michael Lavarch, that the Senate should not be given a role in the dismissal process. Various justifications for this view include the belief that the Prime Minister is responsible only to the House and that the Senate is less representative. What are your views?
Senator ABETZ —We are more representative.
Mr DANBY —I am not asking for senators' views; I am asking for the views of our four witnesses.
Prof. Zines —I have not had time to read Mr Lavarch's submissions, but I must say I am against what he said. The Senate and the House of Representatives come into the process of appointing the President. But, more than that, the problem between the Prime Minister and
the President can come about because of actions of the Senate—indeed, that is what happened 25 years ago. This, therefore, could exacerbate the problem. The Senate has raised these issues; the Prime Minister in order to deal with them gets rid of the President. I believe the Senate should have a part to play.
Mr DANBY —Could it make things worse by the Senate not being involved?
Prof. Zines —Yes, because the Senate could feel that it has been badly treated as a result of not being given any formal say in what the Prime Minister has done. It could be done, of course, by a joint sitting.
Senator ABETZ —Can I just follow that up. If the dismissal is not approved by the joint sitting and it were to be seen as a vote of no confidence in the Prime Minister, then you could have the majority in the Senate in effect determining the fate of the Prime Minister, who still commands a majority support in the House of Representatives.
Prof. Zines —It would not be a vote of no confidence. I agree; I do not think the Senate should be brought into any questions of no confidence.
Mr PRICE —But didn't you say it would be better if the Senate is involved in a joint sitting to approve? That is the whole point.
Prof. Zines —Either the Senate itself could be involved or it could be involved as part of a joint sitting. But, if that is the case, you cannot say that is a vote of no confidence.
Mr PRICE —What do you mean by `if that is the case'?
Prof. Zines —If it is a joint sitting, then it seems to me you cannot and you should not say that that amounts to a vote of no confidence, because I do not think the Senate should have any part to play in that.
Mr PRICE —Absolutely. The point is—if I can just pick up an earlier point—standing orders and House practice codify what a vote of no confidence is; it is already there. If you remove the concept of the House as the sole arbiter of the approval or disapproval process, you then negate the accountability of a vote of no confidence.
Prof. Zines —I agree with that.
Mr McCLELLAND —In summary of that, if you had a joint sitting you could actually complicate the issue of the House being the master of its own destiny in terms of how it treats a Prime Minister with whom it disagrees.
Prof. Zines —No, because once the joint sitting is over you are back to the House of Representatives and they can do as they like. It is true also that, even though there is no provision for the Senate to be informed by the Prime Minister or for it to approve anything the Prime Minister has done, there is nothing to stop the Senate debating it and coming up with such resolutions and censures as it pleases. But it would not have any official status in the Constitution, that is all.
Mr McCLELLAND —Does anybody else want to make a contribution on that issue? Mr Rose, did you want to throw some light on it? I saw you winding yourself up.
Mr Rose —I was not winding myself up but turning things over. I think I disagree with Mr Lavarch's proposition that the Senate should not be involved at all. I can see some merit in having the Constitution require the Prime Minister to seek the approval of the Senate and the House of Representatives or the approval of a joint sitting. But, as Professor Zines has said, the Senate can do what it wants by way of expressing disapproval.
Mr DANBY —To go off in an opposite direction to the thrust of Senator Stott Despoja's question, is it possible that involving the Senate in such a confidence vote after the dismissal of a President by a Prime Minister could contribute to a further constitutional impasse?
Mr Rose —There would be no constitutional consequences of a refusal by the Senate to give its approval, just as there are no constitutional consequences in the present draft for a refusal by the House to give its approval.
Mr DANBY —Professor Saunders, do you have any views on that?
Prof. Saunders —Mr Rose's last point is the important one, that whatever the Senate does is not going to change anything. But to go back to what I understand Mr Lavarch to have said—that the justification for only involving the House is that the House is more responsible and more representative—as I recall the Convention's rather tortuous deliberations on this matter, their main reason for leaving the Senate out of it was that the mutual power of dismissal is an uneasy balance of power between the Prime Minister and the President, and throwing the Senate into that equation disturbs that balance of power. In that sense, having only the House of Representatives involved in the dismissal is really the consequence of following down the minimalist path and not spelling out anybody's powers and not trying to deal with difficulties that all of us here know are in the Constitution. So, if you are actually seeking a justification, I do not think it is necessarily the justification that has been put forward but simply the likelihood, given our experience, that a constitutional crisis will be precipitated by the Senate rejecting supply.
Mr DANBY —I will not labour the point, because it is in Mr Fraser's testimony that this is best laid out. There are strong grounds for fearing the effects of an impasse involving people beyond the House of Representatives. He sets it out very strongly.
I now come the second question on behalf of Senator Stott Despoja. Under what circumstances would you envisage a Prime Minister ever moving to dismiss the President without prior confirmation of support of his or her government colleagues in the House of Representatives? If you agree that this would be highly likely, what implications might this have on the effect of the requirement that dismissal be ratified within 30 days by the House as a deterrent to capricious dismissals?
Prof. Saunders —It is pretty unlikely that a Prime Minister is going to dismiss a President unless he or she is pretty confident that a positive vote will come at some later stage. I am not sure that the need to get the approval of the House is the only deterrent in this matter; there would be a deterrent involved in the flurry in the press and the need to put
the wheels in motion at some stage to get another President and so on. There would be all sorts of other factors at work, apart from the vote in the House. I think it most unlikely that a Prime Minister would lose a vote in the House of Representatives in those circumstances.
Mr PRICE —Can I take you up on that?
CHAIRMAN —It just occurred to me that up to this point in time we have never had a Prime Minister dismiss a Governor-General. But, by the same token, ipso facto, since the Australia Act we have had the Prime Minister virtually appoint the Governor-General. With the new powers, with the change to the Constitution, it is not the Prime Minister's appointment only; it is also the parliament's confirmation of that appointment.
Prof. Saunders —Absolutely.
CHAIRMAN —That then implies that the President has more power than the current Governor-General. Is that more likely to exacerbate the situation where it might some time in the future occur that a Prime Minister would feel need to take it upon himself or herself to sack the President?
Mr Williams —I think that section 59 says that the powers are exactly the same. I think this has been very carefully drafted to say that the President must act on the advice of the relevant minister, except where it is a reserve power—and there are quite commonly held beliefs about what those reserve powers are. So my view is that it has been drafted as carefully as possible to ensure that that situation is not likely to arise. Indeed, it does fairly reflect the situation as it currently is.
Prof. Zines —Can I add something there. It seems to me that what you have just said, Mr Chairman, indicates why, say, David Jackson is wrong when he says you need not put anything in. It seems to me that is why you put it in: because the President is not in the same position as the Governor-General.
Ms ROXON —Can I just follow up on that point. I would be pleased to hear what Professor Saunders has to say on this, because we have heard from the others.
Mr PRICE —I want to follow upon on a point.
Ms ROXON —It is on this same point too, Roger. We have had a number of people raise the dismissal with us. I know that our colleague Mr Causley has asked a number of witnesses about his concern that it changes the balance of power between the head of state and the Prime Minister. He had all sorts of apocryphal stories about what could happen under this new system. He seemed to be very focused about the fact that the Prime Minister currently has to have the consent of the Queen, so the delay that it will take to ring, email, fax, phone, post or whatever—
Mr PRICE —A smart chap, I think.
Ms ROXON —somehow buys a bit of time, which may mean that the whole system will be more stable. I do not share the view, but I would like some comments about whether you
think this new system that is being proposed does fundamentally change it or whether—as I think you commented briefly before—all the pressures that keep the Prime Minister and the Governor-General or the President under control are not necessarily the ones that are spelt out in the Constitution.
Prof. Saunders —If we were drafting this model free from the desire to keep everything else much as it is, then I do not think you would draft a mechanism for dismissal like the one we have here. Having said that, I do not think it alters things very dramatically. Of course, there would be some delay under the present arrangements if a Prime Minister were to move to dismiss a Governor-General. I think that the extent of that delay may be exaggerated—there are all sorts of pictures drawn of the dossier that would need to be sent off to London and the manner in which it would get there—but clearly there is going to be more delay than would be inherent in the Prime Minister handing over an instrument of dismissal.
On the other hand, I think there are other checks and balances inherent in the proposed system that do not exist under the present system. If we were to have a rerun of 1975, I do not think that a Prime Minister, with a Senate blocking supply, would sit around waiting to be dismissed by a Governor-General in whom he did not have full confidence. I think he would be more likely to move early to ensure that there was in place a Governor-General in whom he had confidence. Moreover, once the Queen does the dismissing, that adds a veneer of respectability to the action, and I think to a degree shields the Prime Minister from accountability. So I think the situation is different, but I do not necessarily think that it makes one person more powerful than the other.
Mr PRICE —About five minutes ago I think you observed that you felt that, in the approval process, a Prime Minister would almost automatically be guaranteed the numbers he had—and I apologise, I do not have your exact words—in the House. I know it is a matter of speculation, but I suspect that there would be some deviation from the strict party discipline that we experience. I suppose the other point is that that may be encouraged or facilitated by the fact that the Prime Minister might be replaced but there is still the possibility that a new leader of the majority party or parties could step into that void. That would be a most serious issue for members to have to consider—and, as for whether we will get that opportunity, only time will tell.
Prof. Zines —I agree with what Cheryl says about there being a screen to give an air of dignity and so forth and to the Queen, and the Crown being there as a facade against naked power, whereas the naked power appears quite clearly in the proposed Constitution. I think that has some effect on the status of the person. Looking at the Constitution and seeing that the President, who is supposed to be the head of state, can be dismissed instantly by the Prime Minister, some might feel that it reduces his or her position to that of a flunky, especially when it becomes easier to get rid of the President than, say, the Secretary of the Department of Defence or somebody like that.
A point I did raise last time and I want to repeat is that it is by no means clear that the High Court would not say that the dismissal procedures are subject to the usual implications one reads into grants of power under statutes. I do not think the High Court would. But I can envisage a situation where a Prime Minister might accuse the President of doing things
wrongly where he or she had not been the one to do them and having been given no opportunity to put his or her case. Therefore, this is another situation where I think there should be a reference to justiciability.
I do not agree with this new tendency that everything can be smuggled into the explanatory memorandum. The people are not going to vote on an explanatory memorandum; there is a bill. The High Court might very well say—and I feel that some judges would most certainly say—that in their view the Constitution is clear, therefore there is no point in going to the explanatory memorandum and, even if there were, that it cannot negate what they see as clearly in the document. I would deplore any tendency to rely on the explanatory memorandum.
Senator ABETZ —Does the Governor-General have the power to dismiss the Prime Minister after the Prime Minister has tendered advice to Her Majesty requesting the dismissal of the Governor-General, upon which request Her Majesty as yet has not acted?
Prof. Saunders —Presumably.
Prof. Zines —I would say yes. Indeed, the Constitution gives legal power to the Governor-General to appoint ministers. That clause is regarded as having implied in it power to dismiss or change the ministers.
Senator ABETZ —Professor Saunders?
Prof. Saunders —Yes, I would agree with that.
Mr Rose —Yes, I do too.
Mr Williams —Yes, I agree as well. Until the Governor-General is validly removed, the Governor-General can still exercise the powers.
Senator ABETZ —I had that discussion with Mr Fraser, and I thought he was wrong and I was right. You people are suggesting I might be right, so that is nice.
Ms ROXON —I want to return to the question of the justiciability of the reserve powers and whether or not it would be helpful to put in some wording, as Professor Winterton suggested. I wonder whether you would comment on another suggested type of wording for a provision to be put into the republic bill that the amendments to the Constitution made by this bill are not intended to make justiciable either the exercise of any power by the President or any matter concerning the conventions associated with that power if, immediately before the enactment of the republic bill, an exercise of the equivalent power by the Governor-General or a matter concerning the conventions associated with that power was not justiciable.
I know that is complex. But is it helpful to have a provision in there that spells that out, or is it just the same to have the sort of Winterton suggestion that `this paragraph shall not affect the question of whether the exercise of the reserve powers is justiciable'? Are there any comments on that?
Mr Rose —I think the longer version that was read out is not limited to reserve powers. Is that right?
Ms ROXON —That is right.
Mr Rose —So that has a much wider scope. I myself would be happier if there were a provision in it about non-justiciability of reserve powers, at least that they are to be no more justiciable than they are now. I am not sure about the consequences.
Mr McCLELLAND —Don't you have the history of cases? For instance, there was an attempt to quarantine the former Conciliation and Arbitration Commission from any review of its decisions. But the High Court said, `Well, we'll look at whether a jurisdictional fact existed, but we won't look at how the discretion was exercised.' For instance, under section 59 the President might say, `Look, I'm making this decision, I've acted on advice and you can all go and jump because my decision is not justiciable,' and he might have received no advice to so act at all, and that is a jurisdictional fact. In that case aren't you more likely to get a High Court in 50 years time saying, `Look, we'll have regard to the explanatory memorandum, we're not intended to examine the exercise of discretion but we are prepared to look at a jurisdictional fact, namely, whether any advice at all was given to the President'? Aren't you better to leave it non-specified to give the High Court that discretion as to whether there was no basis for the decision making at all?
Mr Williams —I suppose in support of that, the provision that is being put forward would be more likely to allow that type of situation while also attempting to leave things as they are as much as possible, if you like; it is a bit of a middle course.
Mr McCLELLAND —But would they? If that says, `The exercise of this power is non-justiciable' and that is put before the High Court, they would say, `Well, on the black and white reading of this section we cannot touch this,' whereas if it is in the explanatory memorandum they would have that discretion, wouldn't they?
Prof. Saunders —For the reasons we canvassed before, I would leave it. I am not persuaded either by the need to have a statement about justiciability nor by that particular clause, which seems very sort of cumbersome and possibly likely to do, as Mr Rose said, more than you want it to do.
Ms HALL —Quite a way back we talked about the dismissal process. Section 62 does not require the Prime Minister to ever bring it back to parliament; that has recommended the 30 days, et cetera. But the Prime Minister is not obligated to bring it back to the parliament, is he? Do you think included in the legislation should be a requirement that, regardless of whether an election is called or some other matter overtakes what is happening, the House consider the dismissal of a President?
Mr Williams —My own view is that the best way to deal with this is simply to have dismissal by a motion of the Prime Minister pass through the parliament itself. I have some sympathy if we are not going to take that route. It may never come to the parliament; indeed, in any event the parliament is almost an afterthought under the process. Given that, if it has to come, several months may have elapsed over a particular time, it would seem
perhaps a little odd to then be relooking at these issues after such a long period of time. So my own view is that, if we were stuck with this—which I do not like—I would not force it to come before parliament even after such a long period of time; but, on the other hand, I would change it so that you perhaps keep with the spirit of the Convention model—that is, that the parliament is involved, but make sure that it is the motion itself which leads to dismissal.
Ms HALL —Mr Rose?
Mr Rose —One would need to change the wording in order to accommodate that. At the moment it is limited to a Prime Minister who removes a President, and after an election there may be a totally different Prime Minister. So you would need to provide that, in the matter of the removal of the President, whoever had done it should be in some way brought before the new House.
Ms ROXON —Isn't the intention that, if you had an election following the removal of a President, that election would be the accountability? I am not saying that I necessarily agree with that, but that certainly has been put to us: that the process of re-electing the same government or not would be the accountability for the dismissal of the President. With the way the bill is currently drafted, I think there is no intention for it to go back to the parliament.
Mr Rose —Precisely, I would assume, for that very reason; the election was conceived as the accountability process.
Ms HALL —Would anyone else like to comment?
Prof. Zines —I agree with that. After all, after the election you may have a new Prime Minister, and the actual Prime Minister who removed the President might not come back into parliament.
Ms HALL —This is on the dismissal process, once again. You said that you felt the current system had more checks and balances in place than the proposed Constitution would have. A follow-on from that is: do you believe that currently the Queen could refuse to follow a recommendation of the Prime Minister to sack the Governor-General?
Mr Williams —No. The Queen can advise, warn, do the normal things. But if the Prime Minister says, `This must be done,' then it must be done. I do not think there is any doubt at all with that.
Ms HALL —So, in effect, it is just a delaying tactic; it is no change whatsoever in the procedure.
Mr Williams —Can I also say that you suggested that maybe we were losing some checks and balances. I am not sure that I agree with that. I would take Professor Saunders's point. Indeed, I am not sure that the delay itself really matters much here. In fact, I would introduce some delay under a system by forcing it to go through the lower house, but that is because I think we have made changes to the status of the position, given the appointment
by two-thirds of parliament, and I think parliament should be involved at the front end of dealing with any dismissal. But it is not because of our losing anything from the current model, the current system, as I do not think we would be.
Ms HALL —Malcolm Fraser would agree with you. Malcolm Fraser said very definitely that he felt those delays were not there at the moment, that the dismissal of a Governor-General took effect the hour of the day that the Prime Minister gave the letter to the Governor-General.
Senator ABETZ —But the Prime Minister does not give the letter to the Governor-General; it goes to the Queen.
Mr Williams —The Prime Minister could say that the dismissal must be immediate, with no correspondence to be entered into, send off the email. Indeed, the Prime Minister could instruct the Queen not to delay, and that also could not be disobeyed.
Ms HALL —That was Malcolm Fraser's point of view.
Mr Williams —So you could just remove the delay entirely, if you wanted to.
Senator ABETZ —But if she is out walking the corgis, for example, then there would be delay. Even if a Prime Minister were to request or advise Buckingham Palace that the dismissal ought be instantaneous, it would not be instantaneous until Her Majesty acted on it. If she were not immediately available to pick up the phone or whatever to ring the Governor-General for that to occur, and if the Governor-General in the meantime got wind of what was happening, my premise, as in the question I asked earlier, is that he could still, whilst holding office and before getting the call from Buckingham Palace, sack the Prime Minister and still get in.
Mr Williams —That is true, although that is a different delay than what other people would point out. They would say that there is a delay in the Queen considering the issues, perhaps thinking about them over a period of days and taking further advice. There may be some physical delay in talking to the Queen over the phone or getting the message through. But I think that is different to a delay where the Queen can delay it for her own reasons.
Senator ABETZ —Are you saying that the Queen does not have any, if you like, reserve power to warn, counsel or suggest that the Prime Minister might like to consider whether his actions are appropriate? Are you saying that she does not have that reserve power?
Prof. Zines —No, I think she does.
Prof. Saunders —She does, but I would not describe that as a reserve power.
Senator ABETZ —A discretionary power.
Prof. Zines —No, not a reserve power but discretion on the Queen. If she is told to do something instantaneously, I do not see why she cannot say, `Why do I have to do that?' and seek information.
Senator ABETZ —And thereby occasioning some delay.
Prof. Saunders —But then we come back to the point that Professor Zines was making about justiciability under the present arrangements. If the Governor-General were to dismiss the Prime Minister solely to prevent himself being dismissed, would that be a valid exercise of the power to dismiss? It might at least give rise to argument on the matter.
Senator ABETZ —I would have thought legally, yes; but for every other reason, no.
Mr McCLELLAND —This is on a related point: I think it was Professor Craven in evidence in Perth who said that, theoretically, there is nothing stopping the Prime Minister from advising the monarch, the Queen, to give him or her an authorisation to dismiss the Governor-General in the event that the Prime Minister so determines that the Governor-General is not acting in the interests of the government of the day; in other words, to put in the Prime Minister's back pocket a pre-authorised dismissal of the Governor-General. It was Professor Craven's view that, according to convention, the Queen would have to act on the advice of her Prime Minister.
Prof. Zines —Where does Professor Craven get the provision that allows the Queen to delegate it to the Prime Minister? The Constitution gives the power to the Queen, not to somebody she might feel like delegating it to, as far as I can see.
Mr Rose —I myself would not rule it out.
Senator ABETZ —Would it be a delegation, though, if the Prime Minister were to ask for an undated letter from Her Majesty saying, `I hereby sack'—whoever it is—`the Governor-General' and for him to have that in his top drawer ready for a rainy day? That would not be a delegation; it would still be Her Majesty's decision, would it not?
Prof. Zines —It would be the Queen acting irresponsibly.
Senator ABETZ —And she would not do that, I agree.
Mr DANBY —What about if she gave a dated letter?
Mr Rose —A series of dated letters.
CHAIRMAN —Is anyone aware of any convention whatsoever that would allow the Queen to take such a course of action?
Mr Williams —I do not think there is any convention against it either. We are in completely uncharted territory. There are arguments both ways. It is theoretically possible. But you could not say any more than that.
CHAIRMAN —We have had enough fantasy land; let's get back to real stuff.
Mr McCLELLAND —The dismissal is one controversial area, of course. But the other area of controversy is in respect of the method of appointment of the President and the
discretion given to the Prime Minister to act or not act on a recommendation of the Presidential Nominations Committee.
Are there arguments for greater transparency in that process? In particular, it has been suggested to us that, before appointing that committee the Prime Minister should be required to confer with the Leader of the Opposition at the appointment of the committee. But at the point of consideration of the committee's recommendation, should the committee's recommendation be given to the Leader of the Opposition, and should the committee's recommendation be tabled in parliament, for instance? In other words, how would the Leader of the Opposition know that the Prime Minister of the day was not pulling the wool over his or her eyes by saying that this particular person had been nominated by the committee?
Mr Williams —I am strongly in favour of developments like that. If we look at what the Convention said last year, it said that the Australian people are to be consulted as thoroughly as possible in the process of short listing and selection. My own view is that the current bill fails to do that, because you can have a system where the committee meets in confidence and that is entirely appropriate. The committee hands down a report which is available only to the Prime Minister and, indeed, the Prime Minister can end up appointing someone who is not nominated as part of that committee process. Particularly when we are dealing with an upcoming referendum campaign, if people are made aware of that they will be rightly concerned that they are not involved in this process, and ultimately the committee may have little or no function in producing a report that is not available.
My own view is that the report should be made available to the Prime Minister and the Leader of the Opposition and then 14 days later it should be tabled in parliament. The downside of that is that it may well discourage some people from participating in the process on the basis that they do not want their names to be known as part of a short list. But my own view is that that is an appropriate trade-off in order to involve the Australian people as thoroughly as possible in debating and talking about what sort of person they would like to see selected by the parliament as their President.
CHAIRMAN —But aren't you arguing in variance with the recommendation of the Constitutional Convention?
Mr Williams —No, I do not think so. The Convention itself simply said that the people be consulted as thoroughly as possible. It does not actually say anything, for example, about tabling in parliament. It does say that the deliberations of the committee should be confidential, and I would agree with that. But I do not see the Convention report saying anything about the eventual short-listing also being confidential. If we are down to three, four or five names, then I think the Australian people should be able to discuss those names and take part in that process.
Ms HALL —What you are saying is that it is not naming all the names that were considered; it is just the short list.
Mr Williams —Just the five. Presumably, you would not be nominated. You have to consent to nomination. If it gets to the point where you are going to be named publicly, then you can withdraw from the process if that is not appropriate. It may mean that High Court
judges, for example, are less likely to take part, but if we are looking at making the transition to a republic then perhaps we should also be moving towards appointing different people as President than would otherwise be appointed under the current system in any event.
CHAIRMAN —Wouldn't you say that it would be so irregular for a Prime Minister to totally disregard the advice of the Prime Minister's committee as to be almost unthinkable, except in the situation where a deadlock has developed between the government parties and the opposition parties in the House and/or the Senate?
Mr Williams —I would say that is normally true, except for the fact that we are not aware of what the committee has decided. Given that the committee is bound by its own confidentiality and given that the report is also not available to the Leader of the Opposition, as a minimum I think that must be done. At least if you give it to the Leader of the Opposition there is some level of extra accountability built in. If that is not done, how are we to know whether or not this has been followed?
CHAIRMAN —Mr Williams, if we were debating this issue 100 years ago, I might have some sympathy for your secrecy views. How on earth would you expect that such a process of 32 people could wind up in today's communications atmosphere, not only in Australia but worldwide, where the Australian people would not be aware of the fact that the Prime Minister nominated someone to the joint sitting who was not proposed by his committee?
Mr Williams —I agree with the point as a matter of practicality, but are we to rely upon leaks, which is effectively what there would be? The only way the Australian people find out is if somebody in that committee leaks the fact. It is just not satisfactory, to my mind, that we have to rely upon that rather than official reports.
CHAIRMAN —Can I point out to you that we rely on freedom of speech, association, assembly, et cetera, without any guarantee whatsoever in the Constitution?
Mr Williams —That is right. What I am interested in is setting up a process which actually involves the Australian people being consulted as thoroughly as possible. I agree with the view that perhaps this would be disseminated in any event, but I take the view that that is not good enough. We should actually be building explicitly into the process an opportunity for people to receive information about who is on the final short list so that they can actually take part through the media and through informal discussions in the community and decide who they see as the most appropriate person or the sort of person they would like to see as President. If we do not have that, we are not responding to what I see as a very strong push for, for example, direct election and the view that people should have some involvement at the end of the process other than simply being told that this is the person who is going finally to the parliament.
CHAIRMAN —Thank you for your views.
Ms ROXON —There is a view that if you for some reason wanted to maintain confidentiality you could not have a provision which says that, if the Prime Minister is not going to select someone from the list, he needs to actually go back to the committee with the
name of the person he is hoping to appoint or nominate for the committee to consider. I do not share the view that some people have that it is important to protect the identity of the people who have been nominated. If for some reason people think it is, would there be anything to stop building in a provision which says that if you are not going to select someone from the short list you have to actually go back to the committee?
Prof. Saunders —It is making it so cumbersome. I agree with you that I think we are going to have to get a little bit less precious about what is confidential and what is not in our polity; however, we have not quite got there yet. I think ConCon did intend the short list of nominations to be kept confidential because they were trying to protect the position that you would still get the sort of people acting as head of state as we get under present arrangements. I am not convinced that we will get those sorts of people even if we keep on with our present system, but I think that was what ConCon was doing. To that extent, the bill reflects that.
I was just thinking, as you were all talking, what is the way out of this? I would like a little bit more accountability for this too. I would like, at the very least, a convention to develop that the Leader of the Opposition was shown the committee's report. If there is anything in the confidentiality requirements of the bill that would prevent that happening then I think it should be taken out. I was also wondering whether there was any merit in a report from the committee being tabled in the parliament, even if it did not name names at all but just talked about the process.
Ms ROXON —Talked about the types or range of people?
Prof. Saunders —Maybe that is some sort of compromise.
Mr PRICE —How many nominations have been received—
Prof. Saunders —I think there is value in that anyway.
Mr PRICE —Yes.
Ms ROXON —I want to ask one last question—again, it is a view, Professor Saunders, because we had some comments about this at the last hearing—about the long title. Perhaps some of the other witnesses might want to add something, given the focus that many of our other witnesses have had on the long title. Do you think that it adequately represents what we are going to have the community voting on?
Prof. Saunders —No, I do not. What emerged out of the Convention was such a delicate compromise between the various views. If you are going to focus on appointment in the long title then I think the public nomination process was very important in the Convention's recommendations. So to merely portray this as the parliament doing the choosing, which overlooks the bipartisanship of the nomination process and certainly overlooks the public nomination proceeding, I think is misleading.
On the other hand, to go back to the point that George Williams made earlier, you cannot have a long title that goes on for half a page. There is a view that even this is a bit long.
Personally, I would be inclined to make it a bill for an act to alter the Constitution to establish the Commonwealth of Australia as a republic and leave it at that. I think that is honest, accurate and short.
Ms ROXON —We did have a number of witnesses who said, `What is a republic?' If you say you are going to have a republic, do you actually need to say that the type of republic we are going to have is one where we do not have the Queen and have an Australian citizen?
Prof. Saunders —I think that is getting unnecessarily cerebral about it all. I think that most people understand the sense in which we are using the term `republic'. But if that is the concern then it would be to establish the Commonwealth of Australia as a republic with a President instead of a Queen and a Governor-General.
Ms ROXON —Do the others have a comment on that?
Prof. Zines —No.
Mr PRICE —To pick up the bipartisan issue of the nomination, it seems to me that in a process sense it will not work unless the Leader of the Opposition is in fact informed of those nominations. The whole thing is to try to elevate the process beyond the partisan politics. But without any mention of it in the bill or in the explanatory memorandum, I think there is still, if you like, a degree of deficiency. Perhaps we should just rely on the goodwill and commonsense of a Prime Minister. I think it would be helpful, though, if it were put in.
Mr Williams —Let me add one thing. I think it is a bit bizarre that this change would give the Leader of the Opposition a constitutional duty of seconding the nomination. Given that, it seems very strange that that person will not have access to the report that has led to that seconding.
Ms ROXON —At least not officially.
Mr Williams —Not officially, but it may well develop that way. It is an easy thing to change, and I think it would say something significant in the text about the need for bipartisanship and the dual roles of those two people.
Prof. Zines —The fact that he has to second it would further the point that you are making, that in the whole process the Prime Minister needs the opposition to get it through and he needs the Leader of the Opposition to second it. The process would lead to the result that they would be consulted. The same applies, if I might go off on a little tangent, in all those remarks about the confusion the President might be in to know whether he is going to accept the advice of the Prime Minister. All of these people are part of a government. If the Minister for Social Security tried to recommend the appointment of an ambassador, obviously the Prime Minister would be very concerned.
—If not the cabinet. Perhaps you might help me in understanding the powers of the President and pick up the point made by Rob McClelland. The changes that we are affecting which we refer to as being safety net provisions or enhancing the process—
nomination committee, two-thirds approval by a joint sitting and the approval of a dismissal—are changes to the current system, as we know, and I would have thought all were beneficial. Do these changes in any way impact on the power of the President?
Prof. Saunders —Because they made the President more legitimate?
Mr PRICE —The President, in a sense, has the safety net of an approval process in his dismissal, whereas none exists now. I would argue that that slightly changes the power relationship between the President and the Prime Minister, the same as a Nominations Committee slightly detracts from the power currently enjoyed by the Prime Minister in nominating a Governor-General. What is the best way to describe that? We are saying that the powers are the same as the Governor-General's. Is that an absolutely correct statement, given those changes, or can you still run with the comment that they are exactly the same rather than similar?
Prof. Zines —It is a correct statement because the bill makes it so. It would not be so, in my view, if you did not have the provisions limiting the President in relation to matters of advice and saying that the President must follow the conventions in relation to the reserve powers, because ultimately, if you did not put all of that in, whether the President is going to be bound by convention is really only up to the President. The President can use your arguments, namely, `I am not in the same position as the Governor-General. I am appointed by two-thirds of the parliament and, therefore, the purpose of the conventions, to ensure that there would be representative government, responsible government and democracy, does not apply to me.' That is why it is necessary to tie the President down. I think that he or she has been tied down.
Mr PRICE —Are these powers then the same? Are you comfortable with that?
Mr Williams —As they currently stand, yes, they are. Section 59, the third paragraph, is quite clear in doing that. But I should also mention that of course we are dealing with an evolving sense of government and reserve powers. We can say, yes, they will be as alike as they could possibly be as a result of this provision—I could not think of a better way of wording it. But it is also true that over the course of the years to come the relationship between the different players will alter. There may be different conventions develop, but that is a good thing. Our system needs to build in a possibility for change.
Mr PRICE —To describe the changes in the bill, then, we would be better saying that the relationship is somewhat different because of these different processes that reflect—
Mr Williams —It must be true that the relationship between the Prime Minister and a representative of the Queen is similar.
Mr PRICE —But not the same.
Mr Williams —It must be somewhat different to counter the fact that we are a republic as opposed to a constitutional monarchy. Subject to that, the drafting is as good as it could possibly be.
Mr PRICE —I need to defer to my colleague in his view, then.
Prof. Zines —I would expect a President to be more outspoken in the long run. I would expect a strong-minded President who disapproved of something perhaps to be more outspoken from time to time than the Governor-General would be.
Mr Rose —It might affect his behaviour but not his powers.
Mr PRICE —Yes.
Mr McCLELLAND —On that confidentiality aspect, I note that the part 5 definition of confidentiality in the Presidential Nominations Committee Bill applies to entrusted persons. That seems to restrict them to members of the Presidential Nominations Committee and the staff. There would seem to be nothing to prevent the Prime Minister giving the Leader of the Opposition a copy of the report, or nothing preventing the Prime Minister from tabling the report.
Mr Rose —Nothing at all, in my view.
Mr McCLELLAND —Is that adequate, or should there be specific provision saying that those two things shall be done? What is your view on that?
Mr Rose —As has been said before, it would be quite unthinkable that it would not be shown to the Leader of the Opposition; the question of tabling in the House might be another matter. Perhaps that should be left to the Prime Minister's discretion, because there could be things said in the report about individuals that perhaps might best be not ventilated publicly.
Mr McCLELLAND —You think the safeguard would be that the Leader of the Opposition would not second any nomination until the report is shown.
Mr Rose —I would think it extraordinary if he did so.
Mr McCLELLAND —I have one final question in terms of the selection of the community members—this has been another issue of concern. We have touched on the diversity issue. Is it sufficient that words be added to the effect that the Prime Minister shall as far as practicable have regard to the diversity of the community in appointing the representatives? Is that sufficient to create a situation where the Prime Minister would consult with all relevant political leaders, or do you think there should be a reference to the Prime Minister consulting with the Leader of the Opposition or the leaders of major political parties? Is that necessary, do you think?
Prof. Saunders —If you want consultation with representative of other parties, you should say so. The diversity is different in that instance from consultation.
ACTING CHAIRMAN (Mr McClelland) —It would be silly to give the other political leaders a right of veto, because it could be paralysed. But if you are required at least the courtesy of consultation, that may be something to consider. Any other questions?
Ms ROXON —I just have one. Most of you were here when there was the discussion with the previous witnesses about the qualifications for office and the point of time at which you should have to be qualified and able to meet the requirements. Did you have any comments on that? I do not think anyone picked that up earlier.
Prof. Saunders —That is something that George touched on earlier. If you wanted to be absolutely sure, and it might be desirable to be absolutely sure, it would be easy enough just to put a few extra words in the proposed clause 60 to make it clear that the point when the parliament is doing the choosing, or approving, or whatever verb you want to use, is the point when the nominee must satisfy the qualifications.
Prof. Zines —I might mention that in section 20 of the nominations bill, relating to the nomination form, I would have thought in 20B you could ask whether the nominee is at present qualified to be chosen as President and, if not, what steps would be taken to obtain that qualification, or something like that, such as `I would resign as High Court judge.'
Prof. Saunders —Or, I continue to sit in my spare time.
CHAIRMAN —For your information, we have asked the referendum task force to come back to us with a set of words which will resolve this issue.
Mr Williams —The important thing is it has just got to be done in both—that is all. It is like the current qualifications for members of parliament. You have them separate in the Electoral Act and in the Constitution and they are additional to each other—that is all—so you would need to do both.
Ms ROXON —Let me just ask one follow-up question to that because I do have a concern. The High Court judge seems to be the one that we use as the example all the time. I have some concern that if this nomination process takes a year and a High Court judge is actually one of the people that is on the list and may at that time, unknown to anybody except the Prime Minister, be determining a constitutional question which affects potentially the power of the House of Representatives to do something, or maybe making a decision on a constitutional matter that he or she has some interest in if likely to be the future President, isn't that an issue we should worry about?
Prof. Zines —But that would be the case now. Sir William Deane was no doubt spoken to by the powers that be before it was announced that he was going to be the Governor-General. Indeed, I have a feeling that he had known for some months.
Mr DANBY —Professor Zines, I have heard your comments before that in your view the new bills would enhance the power of a Prime Minister vis-a-vis a President, as compared to a Prime Minister vis-a-vis a Governor-General. The countervailing view has been put to us that because some of the procedures—such as the going back to the House within 30 days—make it more of a process, that can lead to some restraint on a Prime Minister. Would it enhance that process if, for instance, a President were able to appear before the House to put his case?
Prof. Zines —It clearly would. But you keep getting back to the problem of the President dismissing the Prime Minister. This was raised, I think, by the New South Wales Law Society or some group or other. Obviously, the more protection you gave the President, the more his or her status would be enhanced.
I was talking about the status as the way people might see the President. After all, the head of state is supposed to be above us all and representing the community and a person who is neutral and not a protagonist and all that sort of thing. If you know anyone who can be dismissed instantly, and it says so in clear language—unlike the cover of the Crown where it is not so obvious—obviously it is going to affect, I think, the way people see the person. That is just an impression, that is all.
Mr DANBY —Are there any comments from any other person about that idea?
Mr Williams —I agree strongly with that. When you look at High Court judges, a lot of their status depends upon the fact that they have tenure until age 70 and are removable only upon specified criteria being accepted by both houses of parliament. I think that is critical as to how the community sees them and how, indeed, the independence of judges has evolved. If we have got the standard of simply instant dismissal by the Prime Minister, then I would agree with Professor Zines and that would say a lot to the community about the status of the President in the political system.
Prof. Saunders —Under the bill as it presently stands I do not think there is a lot to be gained by having the President appearing before the House of Representatives. After all, on this model, the President has been gone for about 30 days by then.
Mr DANBY —And to have him come back would exacerbate constitutional conflict?
Prof. Saunders —Yes. On the other hand, if you are looking at the accountability of the Prime Minister for this, one of the points that has been made to us a great deal is that people are concerned that the Prime Minister does not even need to give reasons. It is not so much the instant dismissal; it is the absence of any requirement for a public statement of reasons. Again, operating in the real world, the likelihood that the Prime Minister might stand up and say, `I am dismissing this person and I am not going to tell you why', is pretty limited.
Mr DANBY —Surely, if he has to come back to the House, he has to state the reasons?
Prof. Saunders —Exactly; why shouldn't there be a statement of reasons in the House?
Ms HALL —But wouldn't you say that it is more accountable than the current process where the Prime Minister is in no way accountable for his actions if he sacks the Governor-General?
Prof. Saunders —Yes. I think you can make that case, but I think you can make it more strongly if you weave in a requirement for reasons in some way.
Mr DANBY —This is a more arcane legal question, outside the strict reading of the bills, but perhaps you can advise me, because I think it might determine some people's attitudes to this. In the case of the ascension of King Charles III to the throne—
CHAIR —This is hypothetical.
Mr DANBY —and the British government and people deciding to either abolish the monarchy following some scandal or change royal houses to Plantagenet, Tudor or go back to the Stuarts, what would the situation of the Windsors or Saxe-Coburgs be with Australia? Would they still be the sovereigns?
Prof. Zines —I believe they would remain the sovereigns of Australia because any changes to British law, of course, do not apply to Australia. The argument against that—one that I am very strongly opposed to—is that covering clause 2 of the Commonwealth of Australia Constitution Act, which is apparently going to remain, says that the reference to the Queen shall extend to her heirs and successors in the sovereignty of the United Kingdom. So there is an argument that whoever is the sovereign of the United Kingdom must be the sovereign of Australia. There was a similar provision in the Canadian constitution which was taken out in 1894 in a general statute law revision act. The purpose was simply to indicate that reference to the Queen covered her heirs and successors; that it was not just to Queen Victoria. The succession to the throne, I believe, is still governed by the common law and the Act of Settlement, and the Australian parliament can alter that.
Mr Williams —But the short answer is, is it not, that we would be left with Charles III, the King of Australia?
Prof. Zines —Yes.
Mr Williams —That would be the answer. Indeed, even if Britain did become a republic we would remain a monarchy, given our current constitutional arrangements and the fact that the monarchy is an Australian monarchy, not just a British monarchy. It is quite separate.
Prof. Zines —Mr Justice Gummow recently said that, if Britain changed the succession rules for the monarchy, it would not apply to Australia.
Mr DANBY —We could not have a fight, could we, between the Stuarts who might be ruling England and the Windsors who are ruling Australia, over who was in control of Australia in the sense of your point about heirs and successors?
Prof. Zines —There could be a legal argument. The provision in covering clause 2 would no doubt be a cause of argument. I am just giving you my very firm view that Charles III would remain King of Australia.
Mr Williams —I think the more intriguing question is what would happen if Australia changed the rules of succession, for example, to remove the fact that males succeed over females. I cannot see why Australia could not do that. Indeed, we could have separate monarchs for Australia, as opposed to the United Kingdom.
Mr DANBY —So we could have Queen Anne while they had King Charles.
Mr McCLELLAND —Mr Williams, just on your point about the clash with section 44 of the Constitution, on reading section 44, I think there is some legitimacy in the point to the extent that it refers to:
Any person who:-
and then it lists qualifications—
. . . shall be incapable of being chosen . . .
The High Court has construed `being chosen' as going all the way back to the initial point of nomination. The reference to `chosen' has been replicated in proposed section 60, which talks about the qualifications of a person who may be chosen as President. So that does raise the possibility that the High Court may apply that authority in saying that `chosen' goes back to the beginning of the process. Would it get around that if the wording was amended to read, for instance, `The qualifications of a person who may be nominated as President under this section shall be as follows . . . .'—in other words, the `nominated' under this section being the process whereby the Prime Minister submits the name of one person?
Mr Williams —I do not think you would do that, because the first paragraph of section 60 says:
. . . consider nominations for appointment as President . . .
And indeed it refers to the earlier process.
Mr McCLELLAND —I see, yes.
Mr Williams —So that might actually strengthen the result you do not want to occur. Professor Saunders suggested that the best idea is to add a couple of words to say something along the lines of, `. . . who may be chosen by parliament,' or something to actually make it clear—put `chosen' in a context that establishes that it is at the parliamentary stage and not before.
Mr McCLELLAND —This goes to our next position about whether parliament is choosing or approving—`. . . who may be approved as President by the parliament shall be as follows.'
Prof. Saunders —Yes, or `The qualifications of a person who may be chosen/approved as President shall be at the time of approval by the parliament as follows.' That is a bit clumsy and you would need to strip away some of the words. But I think it is easy enough to find a form of words.
CHAIRMAN —Thank you very much for coming to talk to us again. Professor Saunders, we will see you again this afternoon.
Proceedings suspended from 12.56 p.m. to 1.33 p.m.