Saunders, Cheryl --- "How Important Was the Convention?" [1998] UNSWLawJl 9; (1998) 21(3) University of New South Wales Law Journal 868

How Important Was The Convention

CHERYL SAUNDERS [*]

A Constitution is not the act of a government, but of the people constituting the government ....[1]

It was a good idea to hold a convention.

The timing was perfect. With nice symbolism, the dates of the Convention[2] coincided exactly with the centenary of the Melbourne session of the Federal Australasian Convention, which put the finishing touches to the original Constitution.[3]

The advantages of electing delegates to the Convention were familiar as well. As in the 1890s, an earlier convention of politicians had done some good work but had failed to capture the popular imagination.[4] An elected convention was a mechanism for engaging the attention of Australians more widely. Thus Quick and Garran: [5]

The two things now wanted were popular interest in the framing of a Constitution, and popular confidence in the Constitution when framed; and the best guarantee of both these things was that the people should be asked to choose for themselves the men to whom the task was to be entrusted. The adherents of the Parliamentary system had thought that the people would be less likely than the Parliaments to select men who by ability and training were most suited for the work of Constitution-making; but they had forgotten that more important even than the personnel of the Convention was the public confidence in the Convention ... the chosen representatives of the people were for the most part those who would have been the chosen representatives of the Parliaments;[6] but from the fact of their election by the people they had a power, and they enjoyed a confidence, which election by the Parliaments could never have given them.

In the 1890s, public involvement had been needed to give impetus to the federation movement, which had stalled in the colonial Parliaments. In the 1990s, the issue was the design of a model for an Australian republic. Public involvement in any decision to change the Constitution was by now assured, through the referendum requirement in s 128. Public interest was needed to fuel that procedure. Successive surveys showed that Australians were uninformed about the Constitution.[7] The results of previous referendums suggested that they were suspicious of proposals for change.[8] Nor was this surprising. Typically, referendums are initiated by the Commonwealth government of the day and divide the Parliament on party lines, unless a bipartisan approach has been negotiated. The voters are involved only at the end of the process, when they may either fully accept or completely reject a proposal which, generally, they have had no part in shaping.

An elected Convention was an opportunity to attract the interest of voters, both when delegates were elected and when the Convention was held. It gave an incentive to Australians to understand the issues involved and to have a say in the substantive proposals to be put to referendum, through the election of delegates who represented their own views. A convention could break down or, at least, blur party political divisions over the Constitution, through the participation of delegates who were not party-aligned. A successful convention could give voters a sense of ownership of the result.

A convention was not the only way to involve voters in developing a republican model. A plebiscite offered an alternative, one which was recently used, with general approval, to gauge public support for electoral reform in New Zealand. In New Zealand the process began with a Royal Commission on the Electoral System, which identified a range of options, one of which it recommended.[9] In the first of two plebiscites, New Zealanders were asked to choose between several of these options and the status quo, on the understanding that a second plebiscite would give them the opportunity to make a final choice.[10] The information for both plebiscites was co-ordinated by an independent Electoral Referendum Panel, chaired by the Ombudsman.

On balance, the convention mechanism probably was preferable in Australia, and not only for symbolic reasons. The report of the Republic Advisory Committee, crisp and clear as it was, was not perceived to have canvassed all the options as impartially as had the New Zealand Royal Commission. A republican model is more difficult than an electoral system to reduce to three or four options suitable for a ballot. Two plebiscites would have been costly in any event; more so than the Convention, unless one or both coincided with a general election. Furthermore, Australia has no tradition of the provision of impartial information in conjunction with a referendum, to the advantage of the contending parties but to the great disadvantage of the voters.

In many ways, the Constitutional Convention worked well. Millions of Australians participated in the choice of the seventy-six delegates elected to the Convention; in many ways a remarkable result, in the first non-compulsory national election in more than fifty years. While some elected delegates had formerly been politicians, the Convention generally broadened the range of people normally involved in the development of proposals for constitutional change including, hearteningly, several young Australians and some indigenous delegates, elected in their own right. During the fortnight in which it sat, the Convention attracted considerable media interest, from Australia and overseas, providing detailed coverage of the sessions, which was followed avidly by listeners, watchers and readers in all parts of the country. Participants in the Convention experienced a sense of camaraderie bordering, at the end, on euphoria, whatever their differences on the substantive issues might have been.

More sober reflection two months later, however, reveals defects in the convention process which have also left their mark on the model produced by the Convention. The former will require attention if the convention mechanism is used again, as the Convention itself proposed.[11] The problems with the model require some strategic decisions, based on principle, if the legitimacy of the process, which in many ways worked so well, is not to be undermined.

As a generalisation, both in planning and execution, the Convention suffered from lack of vision on all sides. It is not the Australian way to design grand theoretical constructs around the notion of pouvoir constituant and the Convention does not in any event neatly fit that description.[12] But Australia has the distinction of a Constitution which can be claimed to be "the act ... of the people constituting the government"[13] and of a procedure for constitutional alteration in which popular sovereignty takes tangible form. As a body elected directly by the people to design important proposals for constitutional change, the Convention fell squarely within that tradition and offered a means of giving it new life. Regrettably, neither its status nor its potential were sufficiently recognised until it was too late.

Two principal criticisms of the composition of the Convention were made from the outset: the departure from normal practice to rely on voluntary postal voting for the election of delegates and the appointment of thirty-six delegates by the Government without transparent criteria for the choices that were made. These features of the original design of the Convention were responsible for early cynicism about its true purpose and likely outcome. Some of this, at least, will have been answered by the excitement and goodwill engendered by the event itself. One more lasting legacy may be attributed to the use of the postal vote which, anecdotally, excluded a disproportionate number of young voters from the process.

The haste of the election and the timing of the meeting of the Convention were other features of the preliminary planning which ultimately affected the performance of the Convention itself. The Constitutional Convention (Election) Bill passed the Senate on 28 August 1997. Thereafter, events moved very quickly. The formal notice of the election for delegates was issued on 29 September. Nominations for election closed ten days after that. Voting papers and associated material were posted to voters between 3 and 14 November 1997. The poll closed on 9 December. While information about the issues and options and brief statements from the candidates were distributed by the Government over this period, many voters appeared not to understand the issues, or even the idea of the Convention itself. To the extent that this could have been remedied, opportunities were lost both to use the Convention to encourage greater knowledge about the Constitution and to give the Convention a broader base in public support.

The speed of events left many delegates unprepared as well. The results of the election were announced just before Christmas and the Convention met on 2 February 1998. Preparation time was short enough and further affected by difficulties of communication over the Christmas/January holiday period. Apart from the two organised groups, the Australians for Constitutional Monarchy (ACM) and the Australian Republican Movement (ARM), both of which had been in existence for some time and had relatively fixed positions, there was limited opportunity for other elected delegates to reflect on the issues, to develop clear and well-conceived resolutions and to test their ideas with others of like mind before the Convention began.

These difficulties were exacerbated once the Convention was underway. The agenda was already restricted, both by the Government's decision to confine it to questions connected with the head of state and by the assumption, by this time well entrenched, that `minimalism' was the only acceptable approach. The Convention's horizons became further limited in practice by the absence of pre-designed workable models for popular election of a head of state and codification of the powers of the office. The result was that these options were rejected out of hand, souring relations between different republican groups and inhibiting co-operation between them. In the end compromise was reached between the dominant ARM, which favoured selection of the head of state by Parliament, and some supporters of popular election. But the model on which the compromise was based was novel. There was insufficient time to refine it, or even to reflect on it. There was no opportunity to explain it to voters, especially those who had supported direct election candidates, so as to gauge their reaction to it. With hindsight, there would have been benefit in scheduling two sessions of the Convention with a significant interval in between as had been done, deliberately, in 1897.

One result is that the model is significantly flawed. The first and most obvious difficulty is that it is incomplete. On many matters, some central to the final compromise, the conclusions of the Convention are vague and sketchy. This problem affects even the public nominating process, which was the bridge between the direct election republicans and the ARM, and the sole gesture towards the views of those Australians who favour direct election of the head of state. In addition, the Convention left other matters entirely to the Parliament to decide, including the question of who is to act as head of state when the president is not available: an issue which is critical to the Convention's own conclusions about dismissal. In these and other respects the Convention simply did not finish the job. It may be that it ran out of time, but it is a pity. Our own past experience with Conventions tells us clearly enough that not only should Convention recommendations be clear and complete but that they should be presented in the form of draft legislation to alter the Constitution, to avoid later misunderstandings.[14] In the absence of draft legislation, it would have been appropriate for the Convention to appoint a continuing committee of its own delegates to monitor its recommendations as they were adapted to legal form.

Second, the Convention conclusions are flawed because, at least in one respect, they are unworkable. In designing the mechanism for removal of a president before the expiration of a five year term, a compromise was reached between the ARM position and the supporters of the McGarvie model who favoured appointment and dismissal of the head of state by the prime minister, through a committee of eminent persons. This compromise would allow the prime minister to dismiss the president by notice in writing, subject to a requirement of ratification by the House of Representatives within thirty days. Given that the existing conventions concerning the reserve powers are also to be preserved under the Convention's model, it must be assumed that the president constitutionally could dismiss the prime minister as well, when the Senate blocked supply or, perhaps, when the prime minister was acting unlawfully. Arbitrary dismissal of the president by the prime minister is inconsistent with the status of a head of state. Powers of reciprocal dismissal are, to say the least, undignified. And the mechanism runs the additional risk that a head of state may be dismissed by a prime minister with a majority in the House of Representatives just when he or she is needed most, on the assumptions which our system presently makes. If the real intention was to remove the power of the head of state to dismiss a prime minister with the confidence of the Lower House, it would have been by far better to say so.

With hindsight, minimalism has been a mistake. In particular, it has encouraged Australians to think in terms of retaining unnecessary monarchical forms, while replacing the Monarch. Thus it has been assumed from the outset of the modern republican debate that s 61 of the Constitution should continue to vest the entire "executive power of the Commonwealth" in the head of state, together with all other existing formal and reserve powers. In fact, as the experience of the Convention shows, this makes design of a satisfactory republican model more, rather than less difficult. If carried through, it will leave the Constitution more difficult to understand than it needs to be.

Even on the assumptions of minimalism, however, some of the problems of the Convention's model could have been overcome, with lateral thinking and a little more time. As it is, they make even more difficult the question about how to proceed from here.

Constitutionally, the next step must be consideration of the model for a republic by the Commonwealth Parliament, and passage of a referendum Bill, if the Parliament so decides. Even if the model developed by the Convention had been perfect, there would have been a question about the role which the Parliament should play. The Parliament has the constitutional responsibility to prepare final proposals for constitutional change for submission to referendum. From that perspective, the Parliament would be justified in making whatever changes to the model it thinks fit. On the other hand, however, the Parliament acquiesced in the establishment of the Convention. It provided a statutory framework for the election and appropriated the moneys for the election and the conduct of the Convention. Twenty Members of the Parliament, drawn from all parties in both Houses, were delegates and played an active role. These circumstances suggest that the Parliament should exercise a degree of self-restraint, and should alter the model only where there are good grounds to do so.

The form of the Convention's recommendations necessitates some active intervention by the Parliament. First of all, the Parliament must complete matters left incomplete by the Convention, although it should do so in a way which preserves the essential characteristics of the Convention model. Thus, for example, Parliament must give more substance to the public nominating process, to ensure that it is a workable and genuine mechanism for public involvement in the choice of a head of state. It would not, however, be proper for the Parliament to `clarify' the Convention's model by removing the public nominating process altogether.

Second, it is necessary for the Parliament to eliminate conflicts within the model. The procedure for the dismissal of the president is one such concern, especially considered in conjunction with the continued operation of the existing conventions for the dismissal of a prime minister. The inconsistent resolutions about the preamble are another.[15] Absent clear direction from the Convention, the Parliament must resolve these conflicts as it thinks best, with an eye to the final vote by the Australian people. A small but important shift in the model recommended by the Convention, for example, would use a majority of the House of Representatives directly for dismissal of the president, on specified grounds. If this were considered impractical, under a constitutional system which allows the head of state to act contrary to the advice of a prime minister with the confidence of the House of Representatives, an additional change might require the president to consult with, or even take advice from, a specially constituted Council in these circumstances. A mechanism of this kind would prevent precipitate action and ensure a degree of public accountability for the outcome, whatever it may be.

It is possible of course that, whatever changes are made, the model will prove unacceptable to the electorate. Despite predictions, that is not a lay down misere, if the parliamentary stage is open and constructive and if voters are given information which helps them to understand what the model means and why this model was chosen. If the referendum is rejected, however, and if the reason for the rejection is dissatisfaction with the model rather than opposition to a republic, the Convention process will have failed in its central purpose.

We would need to decide why this happened. Was the Convention doomed to failure from the outset, because it could not meet the needs of the large and complex society in which we live? Or was the failure properly attributable to the shortcomings of this Convention, from which we could learn if we did it again? There is a very good chance that the latter would be right, but the former may well prevail. And then what would we do to involve the people themselves in decisions about constitutional change? It is not acceptable, in contemporary Australia, to give up this goal altogether.

---

[*]Professor of Law and Director, Centre for Comparative Constitutional Studies, Faculty of Law, University of Melbourne.

[1] T Paine, "Rights of Man", quoted in McIlwain Constitutionalism Ancient and Modern, Cornell Paperback (1947) p 2.

[2] 2-13 February 1998.

[3] The Melbourne session of the Convention met from 20 January to 17 March 1898.

[4] The series of Australian Constitutional Conventions (ACC) met between 1973 and 1985, comprising delegations from the Commonwealth, State and Territory Parliaments and local government representatives. The parallel ends with the timing. Unlike the conventions of the 1890s, the conventions of 1973-1985 and 1998 dealt with entirely different subject matter.

[5] J Quick and RR Garran, The Annotated Constitution of the Australian Commonwealth, Angus and Robertson (1901) p 154.

[6] Sitting Members of Parliament were precluded from nomination for election to the Convention in 1998: Constitutional Convention (Election) Act 1997 (Cth), s 24.

[7] Civics Expert Group, Whereas the People..., (1994) ch 2. The Report noted that "only 18 per cent [of those surveyed] know something about the content of the Constitution": p 19.

[8] Of 42 referendums held since federation, only eight have been approved. On the last occasion, in 1988, all four proposals attracted an historically high "no" vote: B Galligan and J Nethercote (eds), The Constitutional Commission and the 1988 Referendums, Centre for Research on Federal Financial Relations (1989).

[9] Report of the Royal Commission on the Electoral System, 1986.

[10] See generally A Simpson (ed), Referendums: Constitutional and Political Perspectives, Victoria University of Wellington (1992); A McRobie (ed), Taking it to the People?, Hazard Press (1993).

[11] The Convention resolved that "if a republican system of government should be introduced by referendum, at a date being not less than three years or more than five years thereafter the Commonwealth Government should convene a further Constitutional Convention. Two-thirds of such Convention should be directly elected by the people". Its agenda would include a review of the "operation and effectiveness of any republican system of government" as well as other aspects of the constitutional system, still to be agreed.

[12] M Suksi, Making a Constitution: The Outline of an Argument, Abo Akademis tryckeri (1995) ch 11.

[13] T Paine, note 1 supra.

[14] Both the Conventions in the 1890s approved a draft Constitution. The Australian Constitutional Conventions of 1973-1985 generally did not, and this was a major weakness of that procedure. Its Executive Committee was a continuing body, however, capable of taking some action between Conventions and the resolutions of the ACC typically were in complete form.

[15] As they stand, the resolutions state that the preamble should be drafted "in such a way that it does not have implications for the interpretation of the Constitution" but, at the same time, Chapter III should provide that the preamble cannot be used to interpret the other provisions of the Constitution. If the first resolution is implemented, the second is unnecessary. The second is odd in any event, if we are sincere about the statements in the preamble and draft them carefully enough, with the function of the preamble in mind.