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

• 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?