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	University of NSW Law Journal

As long ago as 1993, the Constitutional Centenary Foundation (the "Foundation") canvassed the idea of a directly elected convention to review the Constitution. Professor Cheryl Saunders, deputy chair of the non-partisan Foundation (and a contributor to this Forum), wrote a paper arguing that its advantages would include much greater public interest in both the issues and the process of constitutional review, as well as being a fitting commemoration of the directly elected Convention of 1897-98 which drafted the Constitution.[1]

The response was less than overwhelming. Apart from anything else, politicians were suffering from constitutional convention fatigue. Conventions comprising representatives of Federal and State Parliaments, the Territories and local government met between 1973 and 1985. These conventions were followed by a Constitutional Commission of experts and another review with broader community representation. The net result of this mighty effort was 16 referendum questions put to the people between 1973 and 1988, of which three were carried.[2] There had not been a busier time for constitutional reform since the period after Federation.

There was another reason for the reluctance of politicians to pick up the Foundation's option. As the Foundation itself said, it was "in one sense a bold step".[3] It would mean handing over the deliberations of government to another body and one whose composition would be uncertain. The Keating Government, in particular, had no intention of relinquishing control to such a degree.

However, the following year Alexander Downer, as Opposition Leader, proposed a half-elected, half-appointed convention to consider one aspect of constitutional reform: a republic. Despite being styled as a `people's convention', it was a proposal which stemmed more from political calculation than lofty ideals about participatory democracy. Paul Keating was exploiting the republic issue to expose splits in the Coalition parties. The Opposition used support for a convention as an alternative to coming forward with a position on a republic.

What proved to be a successful political tactic, to the extent it was carried forward by John Howard into the 1996 election, became a problem to be managed once the Coalition won office. The Prime Minister and the Minister he made responsible for the issue, Senator Nick Minchin, both opposed a republic. They argued there were much higher priorities for a newly-elected government. In other circumstances, this was one election promise that the Government probably could have broken without serious political repercussions. But republican sentiment in the Liberal Party was strong enough to convince the Government it had to proceed with a convention. At one stage, the idea of a convention with only appointed delegates was floated from within the Government, though this would have broken the spirit, as well as the detail, of the election promise. Ultimately, in 1997, Cabinet confirmed the convention would be half-appointed and half-elected But it immediately drew a distinction with a `normal' election by deciding on a voluntary postal ballot to choose convention delegates - a method previously used in Australia mainly in trade union elections.

This, and other hurdles erected by the Government, made the Opposition sufficiently suspicious to oppose the Convention legislation. Indeed the legislation would have been stillborn had it not been for the decision of Tasmanian Green Senator Bob Brown and Tasmanian Independent Senator Brian Harradine to support it on the second occasion it came before the Upper House. Right up until the Convention there remained a great deal of scepticism about the contribution it could make.

In this context, the Convention exceeded expectations. The high profile of the issue itself (compared with other proposals for constitutional reform), popular involvement in the election of delegates and a high level of media attention, including the televising and broadcast of Convention sessions, all generated substantial public interest in the proceedings. Although held in the former House of Representatives chamber in the old Parliament House, it looked and sounded different from a parliamentary sitting. It was a more representative group than Federal Parliament, with more women, more young people and more ethnic and indigenous delegates giving it a more contemporary look. The average level of quality of debate was high and generally less combative than parliamentary proceedings - certainly less so than that part of parliamentary proceedoings typically televised and to which many voters take exception. It had more credibility for another reason; it operated more like parliament originally was intended to before disciplined parties became dominant - as a chamber in which debate and reason could influence the outcome. Ironically, it generally was the appointed delegates who went into the Convention without a fixed position and open to persuasion.

The Convention developed a dynamic of its own, with delegates brought together for 10 days in the old Parliament House driven by a sense that they were participating in an event of historic moment. This was epitomised on the final day with the vote of 89:52, with 11 abstentions in favour of the proposition "that this Convention supports in principle Australia becoming a republic". Hopefully, all this will have done something to make voters better informed about the issues, thereby reducing the scope for exploiting ignorance, as opposed to using well-developed arguments, to mount the kind of fear campaign which has led to the defeat of many referendums in the past.

That said, there were many shortcomings as well. The Government, concerned over being left with decisions which it would find unpalatable, manipulated the Convention proceedings and the outcome. It set the parameters for the debate beforehand by putting the onus on republican delegates to reach a `consensus' which could be put in a referendum. In the absence of consensus, it promised a non-binding national plebiscite in which people would be asked to choose between the status quo and several republican options. If a version of the republic received a majority, the Government promised to then proceed to a referendum. Particularly since the Government was unwilling to define a consensus, a common interpretation before the Convention was that there would be insufficient agreement to move to a referendum and that this would delay and complicate the process, to the satisfaction of constitutional monarchists. It turned out somewhat differently. It became clear during the proceedings that John Howard wanted to avoid a plebiscite at all costs because it would give people a chance to cast a vote for the option which opinion polls showed was their overwhelming choice but also the one to which he, together with many other members of the political establishment, was most strongly opposed: direct election of the president by the people. This is why an alliance of convenience (direct election supporters called it a conspiracy) developed between Howard and Minchin on one side and the Australian Republican Movement (ARM) on the other. The ARM had the largest number of elected delegates and supported a so called `minimalist' model of a non-executive president appointed and dismissed by a two-thirds majority of Federal Parliament. Howard in effect moved the goal posts: before the Convention he had suggested that a consensus to be put to a referendum would require more than a bare majority, but by the final day he accepted a vote of 73:57, with 22 abstentions, as a sufficiently clear expression of the Convention's will to proceed to a referendum.

The ARM and the Australians for Constitutional Monarchy (ACM), the two largest groups elected, had the advantage at the Convention of being well-organised and disciplined. In contrast, supporters of direct election were a very disparate group. They included the conservative Northern Territory Chief Minister Shane Stone, Labor leaders Geoff Gallop in Western Australia, Peter Beattie in Queensland and Mike Rann in South Australia, former Independent Federal Member of Parliament Ted Mack and traditional left-wingers such as former Independent Memeber of Parliament Phil Cleary. Direct election advocates arrived at the Convention promoting varied agendas such as women's issues and a Bill of Rights. Attempts to unite them did not start in earnest until a meeting on the eve of the Convention. By the end of the first week there was an apparent agreement, brokered mainly by professional politicians such as Gallop and Rann, for direct election delegates to work towards a single model to be put to a referendum. In effect, this meant that they were willing to forgo the option of a plebiscite which would offer a choice between direct and indirect election; in the likely event that they were unsuccessful in convincing the ARM of the merits of direct election, they would seek to extract concessions on an indirect election model. It was clear within a few days that this agreement would not stick, with former Brisbane lord mayor Clem Jones saying he would never vote for a republican model which excluded direct election.

The ARM's difficulty was that the gulf it had to bridge to gain a majority of the delegates proved too great. Malcolm Turnbull and other ARM leaders had assumed that, faced ultimately with a choice between retaining a constitutional monarchy and the minimalist model, direct election advocates would have no option but to side with them. What they did not reckon with was the moral authority drawn by supporters of direct election from the consistently strong support in public opinion polls for popular election. Minimalist republicans such as Turnbull and Deputy Opposition Leader Gareth Evans tried to display their bona fides by arguing that a directly elected president was feasible if the powers of the office were strictly limited and spelt out in the Constitution and the Senate's power to block supply was taken away, thereby reducing the chances of the president becoming a competing source of political power to the prime minister. However, resolutions to this effect were defeated, which was a way for the minimalists to make the point that there was not sufficient support for these issues to enable a directly elected model to succeed at a referendum. To stave off a threatened walk-out at the Convention, the minimalists then successfully proposed lowering to 25 per cent the threshold required for resolutions to be carried forward for consideration in the final sessions. In the final week, the ARM wooed direct election delegates by grafting a community and public nomination process on to its parliamentary method of appointment. This succeeded in the ARM putting together a coalition which included previously uncommitted supporters among indigenous, ethnic, church and youth representatives. But a core of direct election advocates continued to hold out, indicating that they either would abstain in the vote for republican models other than their own or support the status quo and wait for a future opportunity to make more meaningful change.

The ARM felt unable to make further concessions partly because of the threat posed by former Victorian Governor Richard McGarvie, who advanced a so called `ultra-minimalist' model in which the Queen would be replaced by a council of elder statesmen, to whom the prime minister would nominate a head of state, with council members resigning if they were not prepared to accept the recommendation. The McGarvie model appealed to conservative republicans such as deputy Liberal leader Peter Costello, as well as to monarchists such as Howard as the `least worst' proposition. The concession which the ARM made to it was to accept the McGarvie argument that providing for the dismissal of the president by a two-thirds parliamentary majority could create a deadlock if the Opposition refused to support the Government for political reasons. The ARM substituted dismissal by the prime minister, subject to confirmation by a vote of the House of Representatives.

While the ARM gained the support of some prominent Liberals, such as Government Leader in the Senate Robert Hill and Attorney-General Daryl Williams, for its hybrid model, many could not be convinced that proposals designed to produce minimum disruption to the present system of government would not mean greater change. The irony is that Turnbull needed the help of a monarchist Prime Minister to help his proposal over the line and to deny Australians a chance to vote for popular election of a president.

[*]National Affairs Editor, The Australian National Newspaper. He has written extensively on the republic and covered the Constitutional Convention.

[1] Constitutional Centenary, supplement to vol 2(4), 4 October 1993, Constitutional Centenary Foundation, p 1.

[2] Strictly speaking, not all the referendum questions were the direct product of these constitutional deliberations.

[3] Note 1 supra, p 1.