Back to the Future: The 2004 Senate Inquiry's Report into an Australian Republic

On August 31, 2004 the Senate's Legal and Constitutional References Committee finally released the report of its inquiry into the Australian republic issue. What follows is a series of observations about the process recommended by that report for achieving a republic, including the models listed in Recommendation 17.

The Process

Four stages were proposed:

• an initial "threshold" plebiscite on the "do you want a republic" issue;
• followed by a second plebiscite on the kind of model (with the possibility of "other relevant questions" being asked, such as the "preferred title for the head of state in an Australian republic");
• followed by an appointed "Drafting Convention"; and
• followed by a constitutional referendum.

The second plebiscite would offer voters a choice of the following five mechanisms for selecting a president:

1. Prime Ministerial appointment;
2. appointment by a two-thirds majority of a joint sitting of parliament;
3. appointment by an electoral college elected on the same basis as the Senate;
4. direct election of Parliament's candidates; and
5. direct election by the people.

A proposed new parliamentary committee, the Joint Standing Committee on Constitutional Education and Awareness, would draw up the "broad details" for the models prior to the second plebiscite.

I could find no mention in the report of any attempt to justify why these five mechanisms for selection are recommended. I did note though, that three of the five have the president nominated or appointed (or both) by the Commonwealth Parliament or one of its MPs, while the list itself appears to have been quietly cribbed (with some amendments) from the Australian Republican Movement’s submission (pdf file 96kb).

Overall, the committee's process would seem to combine the one Paul Keating proposed during the 1996 election campaign for implementing an Australian republic (plebiscite plus joint parliamentary committee plus referendum) with the original version of a proposal by the 1998 Constitutional Convention's Working Group I for carrying out "ongoing constitutional change" (an appointed constitutional committee plus plebiscite plus referendum).

Monarchists and the Second Plebiscite

When the Constitutional Convention held a series of ballots on February 12, 1998 to choose a republic model, at each stage a "no republic" option was offered. The existence of a separate "threshold" plebiscite suggests no such option will be offered at the second plebiscite of the committee's process.

Should that prove to be the case, then from a monarchist perspective that second plebiscite will be the equivalent of Tasmania's Dams referendum of the 1980s, which asked voters to select a dam site but did not offer a "No Dams" option for those who wanted no dam at all. True, in this instance "no republic" would have been one of the choices offered at the initial "threshold" plebiscite. On the other hand, because voting will be compulsory monarchy supporters cannot simply sit that second plebiscite out. They will be compelled to choose a model whether they want to or not. That in turn will present them with an additional choice to the one faced by republicans: Do they vote for the model they would prefer Australia use in the event of a republic or do they vote for the one they feel most likely would lose the subsequent referendum?

On that point, I note that Newspoll has consistently put the proportion of those supporting the monarchy in recent times at about 35 per cent, a minority certainly but one substantial enough to influence the outcome of such a vote.

The Drafting Convention

The proposed "Drafting Convention” would:

• be appointed by Parliament;
• be composed of constitutional experts (plus those with other "recognised relevant skills and abilities"); and
• be assigned the role of fine-tuning the details of the preferred type of republic and "preparing drafting instructions for an amendment to the Constitution".

Why an entire convention of experts should be necessary to undertake a task which appears to amount to little more than ensuring all the "i"s are properly dotted and all the "t"s duly crossed, while issuing memos on such points to those charged with the drafting is left unclear. Why should such a body, with all that constitutional expertise, be confined to issuing mere instructions to the real draftsmen, as opposed to fulfilling the function of drafting the actual amendment itself?

But then it is also unclear why the report felt the need to insist the convention's membership reflect "Australia's ethnic, gender, and age diversity", when it did not think to impose similar terms on the membership of the joint parliamentary committee drawing up the details of the models. How many young constitutional experts does Australia have? That is to say, why impose such conditions on those charged with fine-tuning, yet not on those charged with fleshing out the details: especially when the same body, the Commonwealth Parliament, would choose both? Do parliamentary committees adequately reflect "Australia's ethnic, gender, and age diversity" already?

Indeed, why insist on ethnic, gender, and age diversity yet not diversity of opinion on the republic issue: for example monarchists, minimalist republicans and direct election republicans? If it is unacceptable for such a body to consist mostly of middle-aged Anglo-Celtic men, why should it not be equally unacceptable for it to be, like both the 1993 Republic Advisory Committee (RAC) and the community delegates appointed to the 1998 Convention, composed substantially, if not entirely, of minimalist republicans?

Nor is it clear how the desired diversity of experts would be achieved if they were chosen by Parliament in a free vote of MPs. On the other hand such diversities become rather easier to enforce when freedom of choice is not allowed to get in the way. On that score I note Recommendation 21's reference to "recognised political parties" could be taken to imply a process where the government, opposition, and minor parties are each assigned a designated quota of experts, who would then be appointed in a bipartisan-style you-vote-for-our-experts-and-we’ll-vote-for-yours kind of arrangement.

That same recommendation could also be construed, incidentally, to imply that independent MPs will not be involved at all in choosing the convention's experts.

What the report does make clear is that notwithstanding the nice words (p9, para 3.4) about a "recurring theme in submissions and evidence to the Committee" concerning the importance of Australians "to feel ownership" of the process for implementing an Australian republic, the Australian people will not be the ones in the driving seat. The report assigns that role to the politicians. For while the Australian people might get to vote in a couple of plebiscites and a constitutional referendum, it will be parliament or one of its committees which will decide the models and the details of those models on the ballot-paper, while a glorified committee appointed by Parliament will fine-tune the model the voters select and assorted government draftsmen will draw up the proposed constitutional amendment.

The Parliamentary Appointment Model

In the case of the parliamentary appointment model, if voting at the joint sitting is along party lines, then for all practical purposes the choice of president would be made by the prime minister and opposition leader rather than by parliament itself. For parliament to exercise the choice - as distinct from merely rubberstamping somebody else's - MPs belonging to political parties must be allowed a free vote.

Also noteworthy is the ARM's version of this model where parliament would appoint the president but the people would have nominated the candidates.

The Electoral College Model

The report specifies codification (of the "powers of head of state”) only in the case of the two direct election models, presumably because the committee did not see the need for codification under the other three. What it seems to have overlooked, however, is that the third model on its list, summarised as the appointment by a (directly) elected electoral college, just happens to be the system used by the United States to fill its executive presidency.

The Irish Model

The fourth model, "direct election of Parliament's candidates", is in essence the one used by Ireland. Ireland's presidency has been directly elected since 1937. However, between 1973 and 1990 there were no elections for the Irish presidency. This came about precisely because Irish presidents could only be nominated by Irish politicians. Under s179(2) of Australia's Commonwealth Electoral Act, should only one candidate stand for a seat in the House of Representatives a ballot of electors is not held. Instead (and notwithstanding the opening words of s24 of the Constitution) the lucky candidate is elevated directly to Parliament without a single vote being cast.

A similar rule applies when selecting Irish presidents. In both cases the justification is presumably that if there is no choice to make, why bother with an expensive election?

However, as Jim Duffy pointed out in his case study on the Irish republic for the 1993 report of the RAC (Vol 2, p136) that has led to a situation where:

The result ... has been to allow Irish politicians, whenever it suits them, to agree among themselves to nominate only one candidate, who then is deemed have been elected without any participation of the electorate.

The problem of what happens when a single candidate stands for a (direct) presidential election in an Australian republic may be one of those "details" the proposed joint committee will work out. On the other hand, it could equally be viewed as a trifle better left to the "fine-tuning" of the "Drafting Convention". Or even the discretion of the government draftsmen drawing up the constitutional amendment.

But it also may not find its way into the constitutional amendment at all. Instead, it may be (quietly) left to parliamentary legislation to resolve after the republic is in place, and thus to the discretion of the very politicians vested with the exclusive right to nominate presidential candidates.

Conclusion

I am not normally given to quoting myself, but in light of the committee's choices and what I have written above about them one passage from my own submission would seem to bear repeating.

[A] bellwether will be the process the present committee chooses for moving towards an Australian republic. If it chooses one which could be perceived in terms of attempting to control or minimise the say and the influence of the Australian people …, or to impose some degree of control by others over the people's choice, then that will say a great deal about the kind of republic model that will likely end up being put to referendum. ...

[Making c]oncessions … to popular sovereignty … not only means popular involvement in the choosing of presidencies but involving the citizenry in the process of moving towards a republic in more than some token fashion. To minimise that involvement would merely be to minimise the chances of another model succeeding by maximising the chances of that model being one which a majority of voters will find unacceptable.

One cannot really have it both ways. If the people are indeed to have "ownership", then that necessarily means they must have a substantial control as well. The less control they have the more likely the real owners, be it of the process or the republic, will be somebody other than the Australian people.
Submission 526, pp173-4