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University of NSW
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The conventions held in 1787 in Philadelphia and in the 1890s in various Australian capitals showed, by their results, that great constitutional change can sometimes result from the deliberations of a convention. A successful result of that kind is, however, by no means easy to achieve, even if the delegates to the convention are not only well informed but also willing to exchange ideas rather than determined to cling to preconceived opinions. Indeed, James Madison thought that the history of almost all the great councils and consultations of mankind is one of "factions, contentions and disappointments".[1] He said that the success of the Philadelphia Convention in surmounting its many difficulties was so astonishing that it was "impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief...".[2] Alfred Deakin also seems to have thought that there was something miraculous in the success of the conventions in Australia; he said that "if ever anything ought to be styled providential",[3] it was the combination of events that led to the creation of the Commonwealth of Australia. Unfortunately, providence did not extend its helping hand to the Constitutional Convention held in Canberra in February 1998.
On the first issue which it was called on to consider, whether Australia should become a republic, the Constitutional Convention reached a majority view. It supported, in principle, Australia becoming a republic. Since there are many republican models, some of which may be attractive but others which would be regarded by Australians as entirely unacceptable, it is futile to say that Australia should become a republic unless an acceptable model for a republican constitution is at the same time suggested. The Constitutional Convention did not reach a consensus as to the sort of republican constitution that it wished to see adopted. No model was endorsed by a majority of delegates, and that which received most supporting votes is singular in that it is patently defective in all significant respects.
The procedure originally suggested by the Australian Republican Movement for the appointment of a President was that the Prime Minister should present, and the Leader of the Opposition should second, a nomination, which would require approval by a two-thirds majority of a joint sitting of both Houses of Parliament. It may be doubted whether, in a time of crisis, the political unanimity required by this procedure would be found evident. However that may be, by way of compromise there has been grafted on to this procedure a process of nomination which was designed to placate those republican supporters who believed that the public should be involved in the choice of a President. Nominations received from a wide variety of sources are to be considered by a representative committee which is to compile a short list of candidates for consideration by the Prime Minister. In compiling the list the committee is to be required to "be mindful of community diversity".[4] Why it should consider community diversity rather than which nominee is best able to serve Australia as a President has not been made clear. In any case, a procedure of this kind is likely to deter at least some suitable persons from allowing their names to be considered for candidature. Perhaps these things do not much matter, for the Prime Minister is not bound to choose a nominee from the short list. In other words, the procedure is a clumsy sham.
Even more objectionable is the suggested procedure for the dismissal of a President. In this regard the Australian Republican Movement has displayed remarkable pliability. It originally proposed a procedure (requiring a two-thirds majority of Parliament) which would have made a President virtually irremovable, but has eventually suggested one which would place the President entirely at the mercy of the Prime Minister, who can effect an immediate dismissal. Although the Prime Minister's action in removing a President must be considered by the House of Representatives, failure to ratify it does not restore the President to office but merely renders him or her eligible for reappointment. It appears that a President, once dismissed, could be reappointed only if nominated again by the Prime Minister, who might well be the person who had effected the dismissal, since although the vote of the House refusing to ratify the dismissal would constitute a vote of no confidence in the Prime Minister, it would be a matter of conjecture whether the Prime Minister would resign. Since the questions regarding the appointment of an acting head of state were left unanswered by the Convention, it remains doubtful whether the person acting as President would have effective power to enforce compliance with the constitutional conventions and secure the dismissal of the Prime Minister in those circumstances. Another question left unanswered by the Convention was whether a President, who had been removed, could be reinstated only after the nomination procedure already mentioned, involving public consultation and the compilation of a short list, had been carried out. In these recommendations the position of the Senate is completely ignored. No doubt it was intended to prevent a President from dismissing a Prime Minister whose government had been denied supply by the Senate in circumstances similar to those of 1975. The suggested procedure might have that result, but it would do nothing to avert the chaos that would ensue. It would prevent a President from taking valuable and uncontroversial initiatives such as that taken in Tasmania in 1989 by Sir Phillip Bennett, who did not accede to the request of the Premier that an election be held because he was able to satisfy himself that the Opposition could form a Government with the support of the Greens. The suggested procedure fails completely to strike the necessary balance between the offices of President and Prime Minister, and greatly strengthens the position of the latter at the expense of the former.
The Convention, in effect, avoided consideration of the difficult questions that arise in relation to the reserve powers. It might have been thought that if the Convention had given serious consideration to the consequences of a change to a republic, it would have wished to define the powers of the President. However, it took the easier course and resolved that the reserve powers and the conventions relating to their exercise should continue to exist. Although the Convention did not say so, if a provision to this effect is written into the Constitution, without qualification, it will fall to the courts to decide what the constitutional conventions require. This would render an exercise of the reserve powers open to legal challenge, whereas at present those conventions are not open to judicial review. In this regard there is a dilemma. If the conventions are not enforceable by the courts, a President might ignore them, even though the Constitution stated that they continued; all those considerations which obliged a Governor-General, as the representative of the monarch, to observe the conventions, would not exist in the case of a President. On the other hand, if the courts can enforce observance of the conventions, the resulting delay and uncertainty could be very damaging in a time of crisis. The Convention's model, by its silence, has provided for a significant change with consequences that may be most unfortunate.
The manner in which the Convention has dealt with the implications for the States is also unsatisfactory. The Convention recognised that it would be desirable that the advent of republican government should occur simultaneously in the Commonwealth and all States, but left open the possibility that some States might retain monarchical status. It would be absurd, and destructive of the symbolic significance which republicans attach to the change, if some States remained monarchies when the Commonwealth became a republic. Further, such a situation would give rise to constitutional questions as yet unresolved, including the question whether the change could be made without the assent of all States. It is a matter of controversy whether a referendum carried only in a majority of States would suffice for this purpose. On any view, the Commonwealth of Australia Constitution Act (1900) would require amendment, and one view is that this could not be done by way of s 128 of the Constitution. From every point of view, if Australia is to become a republic, the Commonwealth and the States should all change together.
A final matter to be mentioned is that the Convention resolved that the Constitution should include a preamble. That of course is uncontroversial. However, it resolved that the preamble should include, amongst other things, acknowledgment of the original occupancy and custodianship of Australia by Aboriginal people and Torres Strait Islanders, recognition of Australia's cultural diversity and affirmation of respect for our unique land and the environment. It suggested that other matters also be considered for inclusion, such as the recognition of gender equality and recognition that Aboriginal people and Torres Strait Islanders have continuing rights by virtue of their status as Australia's indigenous peoples. A Constitution should prescribe the method of government, and an expression of social values is out of place in such an instrument. It is particularly unwise to attempt to give constitutional recognition to contemporary values, since the most elementary knowledge of history should show how dramatically values can change in a comparatively short time. The Convention proposed the inclusion of provisions forbidding the use of the preamble in the interpretation of the Constitution. It cannot be predicted with certainty whether those provisions would be entirely effective in Australian courts, but they could certainly be used, with unpredictable results, in international tribunals as an indication of the principles which Australia, having recognised, should apply in practice.
The Convention excited much public interest, but it is another question whether it advanced the knowledge of the public concerning the issues involved. The idea that the Convention should include representatives of various sections of society (the young, women, indigenous people, etc) was surely misguided. No doubt a constitutional convention should include representatives of all schools of political and constitutional thought, but the representation of sectional interests is more likely to divert attention from the constitutional issues than to assist in resolving them. That, of course, is not intended to deny that individual members of those groups may have the qualifications necessary to enable them to contribute usefully to the debate.
One rather gets the impression that some delegates to the Convention were less concerned to achieve excellence in the proposed constitutional model than to have a republic at any price. The model proposed by the Convention is so obviously defective that it must surely have little chance of success at a referendum. If, by some possibility, it were adopted, the result would be a disaster for Australia.
[*]GCMG, AC, KBE.
[1] J Madison, "The Federalist No XXXVII" (1788) in J Madison, A Hamilton and J Jay, The Federalist Papers, Penguin (1987) p 246.
[2] Ibid.
[3] A Deakin, The Federal Story, Robertson and Mullens (1944) p 166.
[4] Constitutional Convention, Communiqué, 13 February 1998, at [ ].