Let the debate begin in earnest. Today, 152 ?? delegates to the constitutional convention meet in Canberra. Over the next two weeks they are charged with discussing what constitutional change, if any, should take place in Australia before the centenary of federation on January 1, 1901. However, it seems that the issues will narrow quite quickly. The question of whether Australia should remove the shared arrangement with Britain and become a republic with its own head of state has to a large degree been decided. The voting for the convention revealed, on all but the most churlish interpretation, a significant majority in favour.
Even Australia’s best-known constitutional monarchist, Prime Minister John Howard, has acknowledged the inevitability of a republic. He has acknowledged that ending the shared arrangements with Britain are the best reason for moving to a republic. Mr Howard has very sensibly urged the convention to come forward with a single model which can then be put to the people. He has also, quite rightly, given his own party a conscience vote on the matter. Perhaps that is recognising the inevitable as more members of his party come out in favour.
The critical question for the convention therefore will be what sort of republic. The Canberra Times has long favoured a minimalist change. It would be better if the president were nominated by the prime minister and ratified by a two-thirds majority of a joint sitting of both houses of parliament. However, it seems that a majority of Australians do not accept that view and that there is no discernible trend that way. This is unfortunate because a directly elected president has dangers. So it is critical that if Australia is to have a directly elected president, as the people seem to want, that the dangers are recognised and addressed.
The first danger is that a directly elected presidency is much more likely to become the sole preserve of politicians than a presidency elected by politicians themselves. There is irony in this. But a directly elected presidency would result in a Labor candidate and a Liberal candidate and it would most likely be a fight between them. Moreover, the winner might not resign from the party. A president requiring a two-thirds majority of the Parliament would have to get cross-party support, so each major party would exclude the other’s candidate.
The convention must consider ways to prevent the presidency being a major-party event. It may be that the model of Ron Castan, QC, could be adopted. Parliament chooses a candidate and any other Australian can run against Parliament’s candidate after qualifying by obtaining, say, signatures of one per cent of the voters. It may be that candidates must resign from political parties. The trouble with politician presidents is that the presidency is there to arbitrate between the politicians in times of crisis; a politician president will be seen to be biased.
The other danger of a directly elected president is that it might be seen as a fountain of separate political power. Such a person might feel freer to refuse to sign Acts into law; refuse a prime minister’s request for an election; dismiss a government and force an election and so on.
The convention should look a ways of reducing these discretions. At present the Constitution gives the head of state awesome power if read literally.
Some commentators have argued for codification of the president’s powers within the present system. That carries some dangers because the present system invites situations of impasse through its very imprecision.
A better way might be to give greater precision to the system, taking away the vagaries of the head of state’s appointment and dismissal of governments and the calling of elections. The system should make these decisions more self-executing.
One way would be to define the role of the prime minister in the constitution. That is not the case at present. It might be better to adopt the ACT system whereby parliament elects the prime minister. In addition the Papua New Guinea rule that insists any parliamentary no-confidence motion in a prime minister must name the new prime minister.
On more contentious grounds, the head of state’s discretion if supply is blocked or a prime minister seeks and early election could also be met. One suggestion has been to have a fixed term; to remove the Senate’s power to block supply; and to abandon double dissolutions as the way to resolve disputes between the Houses.
The double dissolution is a clumsy device. It might be better if the Senate could block Bills for the duration of the current parliamentary term, but if the government got re-elected the government should be able to pass all the rejected Bills in the House of Representatives alone, without Senate approval. After all, in such a case, the government would have put all the rejected Bills before the people at the election and if re-elected it would indicate the people’s approval of them.
In any event, the convention must decide fairly early if the president is to be elected directly or indirectly, and if directly devise means of reducing the amount of discretion retained in the office.
An early start might be for the leaders of the major parties to make their position clearer on a directly elected president. Would their parties stand candidates and fund their campaigns? Would their parties expect their candidate to remain a party member upon election? If the answer to those questions are yes, then people and convention delegates might understand the danger of having a directly elected president and concentrate their minds on dealing with it.