Stone, Adrienne --- "The republic and popular involvement in presidential nomination" [1999] ALRCRefJl 9; (1999) 74 Australian Law Reform Commission Reform Journal 45

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Reform Issue 74 Autumn 1999

This article appeared on pages 45 – 48 of the original journal.

The republic and popular involvement in presidential nomination

By Adrienne Stone*

Most of the controversy concerning the proposed constitutional amendment to implement an Australian republic has concerned the method by which the new Head of State, the President, would be appointed.

Among republicans there is an important, and much highlighted, division between those republicans who would have the President directly elected by the Australian people and those, most prominently represented by the Australian Republican Movement, who advocate a parliamentary appointment process. The latter model was endorsed by the Constitutional Convention in 1998 and it is this proposal that will be put to referendum in November of this year. It provides for presidential appointment by a two thirds majority of the parliament.¹

The focus on the appointment method is understandable for it will largely determine the character of our republic. This article will address the controversy over the appointment method with special reference to the nomination procedure adopted by the Constitutional Convention and since fleshed out in a proposal by a group of republicans, of which I am a member.² I will explain how the proposal for popular involvement in the nomination of the President strikes the appropriate balance between the concerns of the direct election and the parliamentary appointment republicans.

Why the controversy?

Broadly understood, ‘republicanism’ is a philosophy of government that values, among other things, involvement of citizens in the process of government.³ Thus, the republican debate in Australia focused on one aspect of this, involvement of the citizenry in the selection of our Head of State.

Here lies the point of disagreement between the direct election and parliamentary appointment republicans. For the direct election republicans that involvement should be through the direct election of the President by the Australian electorate. They oppose entrusting the parliament with this task. This unwillingness to allow parliament to make the choice is commonly grounded in a distrust of or cynicism about the parliamentary process and even the notion of representative government. The parliament is decried for its domination by the major parties and the executive. It is seen as an elite far removed from the Australian people. According to its supporters, a directly elected presidency would be a healthy counterbalance to this and would certainly be preferable to giving over the selection process to the unrepresentative, elitist parliament.⁴

Against this, republicans who support a parliamentary appointment model usually justify it on the basis that it is compatible with our current form of parliamentary democracy. Under this system a President would be faced with the task of enforcing fundamental constitutional principles through the exercise of the President’s reserve powers. Although this requires that the President have a measure of legitimacy, it also requires that the President be, and be seen as, above politics. Supporters of parliamentary election suggest that a directly elected President might have difficulty achieving the appearance of non-partisanship after an election. By contrast, they argue, the parliamentary appointment of the President ensures an appropriate measure of legitimacy while at the same time removing the President from the political process that would undermine his or her impartiality.⁵

In addition, it is sometimes argued that the direct election of the President might even be dangerously destabilising. A President might perceive himself or herself to have a greater political mandate than the Prime Minister, after all, he or she would have a direct link to the Australian people whereas the Prime Minister would not. This belief might tempt the President into the inappropriate exercise of the reserve powers against the Prime Minister, undermining our parliamentary system. Thus it is argued that if the new Presidency is to exist along side the parliament with its current powers, the President should not have a greater mandate than the parliament and the executive. This problem could only be satisfactorily overcome if the President’s reserve powers could be codified and, perhaps, made reviewable by the High Court, a matter on which the Convention could not agree.⁶

The better argument is, I think, with those who support the parliamentary appointment model. Even assuming that the direct electionists’ cynicism of the parliament and enthusiasm for more direct participation is well placed, the expression of that in a popularly elected President within the context of our present system is unwise. The parliamentary appointment republicans are right: direct election may undermine the President’s capacity to transcend party politics and it may even be dangerous to invest an essential symbolic figure with a greater degree of political legitimacy than can be found in the parliament and executive.

This is not to say, however, that popular election could not work under any circumstances. However, the concern with popular alienation from the political process could be more satisfactorily addressed with appropriate codification of the reserve powers or, less plausibly, in a full executive presidency.⁷

Public involvement in nomination

One challenge for the Convention was to address the concern for popular involvement in the selection of the President within the bounds of the existing parliamentary system. From the robust debate of the Convention emerged a proposal for popular involvement in the nomination procedure. The communiqué of the Constitutional Convention sets out a nomination procedure designed to “ensure that the Australian people are consulted as thoroughly as possible [and] . . . involve the whole community”.⁸ Specifically mentioned is consultation with State and Territory parliaments, local government, community organisations, and individual members of the public.

According to the communiqué, the nomination process is to be overseen by a committee that should have a balance between parliamentary and community membership and take into account so far as practicable considerations of federalism, gender, age and cultural diversity. The committee is to produce a shortlist for consideration by the Prime Minister. Nominations are not to be disclosed by the committee without the nominees’ consent.

This nomination procedure is not included in the proposed constitutional amendment. The Convention took the view that the process is likely to evolve with experience and thus is best dealt with in ordinary legislation.

The Mason proposal

On December 16, 1998 in an open letter to the Commonwealth Attorney-General, Sir Anthony Mason and a group of republican academics set out a proposed nomination procedure that expanded on the nomination procedure approved by the parliament. I was a signatory to that letter.

Expansion on the proposal in the communiqué was clearly necessary before the proposal could be set down in legislation. Although the Convention had offered some guidelines, it left many matters of detail undecided. The proposal we put forward addressed these matters of detail in three parts.

First, it proposed that any person can nominate another by a short written statement in support of the nominee and with the nominee’s written consent. The nominator, but not the committee, can make the nomination public though, again, this requires the written consent of the nominee.

Second, the proposal addressed the composition and procedures of the nomination committee. To reflect the diversity of the Australian community (and the guidelines of the Constitutional Convention) it was proposed that the committee be composed as follows.

Four members from the federal parliament including at least one man and one woman. The committee is to be chaired by a member nominated by the Prime Minister and the Deputy Chair will be nominated by the Leader of the Opposition. The committee is to include one member nominated by the leader of each of the third and fourth largest parties in the parliament.

Two community representatives appointed by the Prime Minister, one of whom must be an Indigenous Australian and one community representative nominated by the Leader of the Opposition. At least one man and one woman must be selected.

Eight State and Territory ‘community representatives’ to be chosen by each Premier or Chief Minister after consultation with local government and community organisations.

After consultation and deliberation the committee will prepare a shortlist of at least five candidates. The proposal leaves the committee to determine how the shortlist is to be selected, but stipulates that at least one man and one woman must be shortlisted and that the candidates should not be ranked. The committee is not to interview candidates but, provided that there is no direct contact with the candidates, it is to consult as widely as possible. The committee shall prepare a report outlining the background and qualifications of each shortlisted candidate. The shortlist and the report is to be provided to the Prime Minister and the Leader of the Opposition and the shortlist is to be made public at that time.

Finally, the proposal suggests a timetable for the nomination procedure. The committee, it is proposed, should be set up no earlier than six months and no later than five months before the President’s appointment. The committee will have 28 days to devise the official nomination forms and clarify procedural details. Following that, it has 28 days to receive nominations plus a period of 56 days to assess them. Then the shortlist will be presented to the Prime Minister and the Opposition Leader. The Prime Minister, with consent of the Leader of the Opposition, will then submit a candidate to the parliament between 14 and 21 days after receiving the shortlist. As specified by the Constitutional Convention, that candidate will become President if approved by a two thirds majority in a joint sitting of the two houses of parliament.⁹

Conclusion

Thus the public nomination procedure envisaged by the Constitutional Convention opens up the nomination procedure to the public. As expanded in the Mason proposal, this represents a significant dilution of the parliament’s power over the selection of the President. The nomination committee will not be dominated by members of parliament, but will be drawn from a broader cross-section of the Australian population. In addition, it will provide a mechanism for considerable consultation. Thus the shortlist from which the Prime Minister will have to choose will not simply reflect the will of the parliament. It will reflect the committee’s own diverse membership and its wide consultation.

Popular involvement in the nomination procedure obviously does not achieve all that those advocating direct election would desire. However, appreciating the incompatibility of direct election with our current parliamentary system, the popular nomination process is an acceptable compromise and, indeed, represents a significant improvement on a simple parliamentary appointment model.

* Adrienne Stone lectures in constitutional law at the Faculty of Law, Australian National University.

Endnotes

1. Report of the Constitutional Convention Communiqué vol 1, at 44-45.

2. See ‘President Must be the People's Choice’ The Australian 16 December 1998, at 15.

3. See G Williams ‘A Republican Tradition for Australia?’ (1995) 23 Federal Law Review 134.

4. Report of the Constitutional Convention, Transcript of Proceedings, vol 3, at 43 (Ted Mack). Other delegates who campaigned for direct election include Clem Jones, Pat O’Shane, Paddy O’Brien and Phil Cleary. See Report of the Constitutional Convention, Transcript of Proceedings, vol 3 and 4, at 102-3, 152, 171, 757-8 867-8.

5. G Winterton ‘The 1998 Convention: A Reprise of 1898?’ (1998) 21 University of New South Wales Law Journal 856, 858.

6. Report of the Constitutional Convention, Transcript of Proceedings, vol 3, at 137-42, 158-61.

7. Although this model has been advocated by some prominent participants in the republican debate such as Ted Mack, it was clearly rejected by the Convention. Report of the Constitutional Convention, Transcript of Proceedings, vol 3, at 44, 138-40, 160.

8. Report of the Constitutional Convention Communiqué vol 1, at 44.

9. Ibid, at 45.