Senator ELLISON (Special Minister of State) (10:34 AM) —There are a number of matters. The government opposes these amendments Nos 1 and 2 by the Greens. I will deal with each in turn. Firstly, the changing of the word `may' to `must' does imply a sanction. In fact, we would agree with Senator Cooney's assertion that this heightens the aspect of justiciability. It is something which Senator Harradine was concerned with. It imposes a more cast-iron obligation on the Prime Minister and, of course, that is the intention that the Greens have here. But the more you do that, the more you open it up to judicial review, and that is something which the government thinks is problematic.

In any event, there is a clear expectation that the President will be appointed at the end of an incumbent's term. This has operated for many years in this country with the way that governors-general are appointed by the Prime Minister. The practice has been observed, and the government believes it will continue to be observed because there will be political pressures to do so. The convention provided for an Acting President in circumstances where there might be a gap between appointments. I put to the Senate that the convention was not of a mind to say that there should be an automatic requirement—the insertion of a `must', if you like—in relation to the Prime Minister's actions. It saw that the current system was sufficient and that there would be sufficient pressure to appoint a successor to the incumbent. Therefore, the government is of a view that it would be inappropriate to require the Prime Minister in the circumstances mentioned.

The government's proposal allows for the opportunity for the Prime Minister to engage with the Leader of the Opposition to nominate a presidential candidate. You do not know what might transpire in the affairs of human beings. You might have someone who is on the way to being nominated who passes away or for some other reason is ineligible, and it is then back to the drawing board. Meanwhile, you would have this sanction of `must' hanging over the Prime Minister. It is the view of the government that, in the circumstances, there are adequate safeguards that carry on the current practice and that are not contrary to the convention model.

As for the second amendment, the government is saying that the proposal is in accordance with the convention recommendations. The Prime Minister is technically under no obligation to nominate someone from the short list. However, again, there would be immense political pressure to do so. The requirement of a sanction again opens this up to judicial review and again does not accommodate something which might transpire, such as someone becoming ineligible to be moved forward. For that reason, the government is of the view that this should not be changed. The convention said that, having taken into account the report of the committee, the Prime Minister would put forward a single nomination. The convention did not say that it must be from the short list, although it was intended that there be political pressure that it be from the short list—and, in most cases, it would invariably be from the short list. Nonetheless the convention proceeded on the basis that the Prime Minister would not be bound to move a name which was from the short list, much for the reasons I have pointed out.

There is another aspect mentioned by Senator Stott Despoja in relation to recommendation 3 of the joint committee which provided that:

. . . where the Prime Minister nominates as President a person other than a candidate mentioned in the short list . . . the Prime Minister be required to table a statement in Parliament giving his or her reasons for deciding that such exceptional circumstances existed for failing to comply with the Nomination Committee's recommendations.

The government's response is in the document I tabled earlier. In substance, that recommendation is supported. Under section 60 of the Constitution, the Prime Minister is technically under no obligation to limit his or her nomination to a person from the short list provided by a nominations committee in its report. The Constitutional Convention's resolution is expressed in terms that the Prime Minister is to `take into account' the committee's report. It is clear that debate at the convention proceeded on the basis that the Prime Minister should not be under obligation to appoint a person identified by the nominations committee, although it was rightly recognised that the political realities would impose pressures to do so. I outlined that earlier.

It is possible to identify circumstances in which it may not be appropriate to nominate a person recommended by a nominations committee. An example is where agreement could not be reached with the Leader of the Opposition on any of the committee's short list. In any nominations procedure, the Prime Minister has to obtain the backing of the Leader of the Opposition. Another example is where an outstanding candidate excluded from the committee's consideration because of an apparent unavailability subsequently agreed to be considered when approached by the Prime Minister and by the Leader of the Opposition. It may well be that the nominations committee looked at a pool of candidates but excluded an outstanding candidate who was thought at the time to be unavailable, that that then changed and that the Prime Minister and the Leader of the Opposition both then thought this person should be approached. That would rule out an allowance for that to be accommodated.

The government would not accept any proposal to amend proposed section 60 of the Constitution to fetter the Prime Minister's constitutional discretion. However, the government supports amendments of the nominations committee bill to provide explicitly for a Prime Minister who moves a name that is not on the nominations committee short list to inform the parliament of reasons for the alternative nomination. The government would undertake to move an amendment in those terms accordingly when or if the need arose to consider the nominations committee bill. The government is saying that it would agree to the Prime Minister having to table reasons as to the choice of this alternative candidate. It would not be a situation where the Prime Minister would have to give reasons for deciding that such exceptional circumstances existed for failing to comply with the nominations committee recommendations—a subtle difference but nonetheless one which we believe is more preferable. It would perhaps avoid the odium of comparison.

In the situation recommended by the joint committee, you would invite a situation where the Prime Minister might say, `These weren't as good as the one I am looking at,' or, `There was some problem with these candidates.' We are saying that, if the Prime Minister does choose an outsider—to term it that way—the Prime Minister would give reasons saying why that person was such an outstanding candidate. For those reasons, we believe there should be a subtle difference in the way we support recommendation 3 of the joint committee.