Could you imagine a direct election for the president being held now?
There would be a Labor candidate and a Liberal candidate and a few populist independents.
What would Opposition Leader Kim Beazley be saying? He would use the standard cliches of any mid-term by-election.
“”I call on the people of Australia to send a clear message to the Howard Government,” he would say. “”On Saturday vote for Labor’s Bill Hack for president.”
The election for president would presumably be for a fixed term so would often be out of kilter with the main election. So the election itself would be politicised, even if the office were not.
Mr Beazley and Prime Minister John Howard should state what their parties’ position on a directly elected president. Would their parties stand candidates? Would they expect those candidates to retain party membership on attaining office?
If the answer to those questions is yes, the constitutional convention must find a way of excluding party members from office, otherwise the president (who is supposed to arbitrate in a crisis in a way above politics) would be seen to be biased.
For these reasons, the Australian Republican Movement has argued for an indirect election — for the president to be nominated by the Prime Minister and ratified by a two-thirds majority of a joint sitting of Parliament.
But the ARM accepts that a large majority of Australians, according to reliable polls, want a direct election, and not an election by politicians.
They obviously not realise that a direct election means a Labor candidate and a Liberal candidate and one or other will be elected, even if there are also a few shrapnel candidates. They obviously don’t realise that an indirect election requiring a two-thirds majority will mean that candidates from one major party will be vetoed by the other.
Support for a popular election remains steady. It does not seem to be moving. So the convention will have to take that on board.
The ARM has a fall-back position. They want a republic first and foremost. Therefore they will accept a directly elected president, provided the president’s powers are codified.
That is the position of most republicans who would prefer an indirect election, but do not want to sacrifice a republic just because a majority want an indirect election.
But I think this is the wrong way to go about it. Rather than codify the president’s powers, I think it would be better to codify the position of the prime minister and the parliament, so the president has virtually no role left, other than national figurehead.
I think this could be fairly easily done, as we shall see. But it would mean some significant changes which could be the subject of a scare campaign to defeat a republic. On the other hand, support for a republic might be so strong that it could be the catalyst for other changes that might otherwise fail.
The trouble is that our constitution does not mention the prime minister. Instead the Governor-General is given huge powers on the plain reading of the document. The Governor-General can appoint ministers; sack ministers; dissolve Parliament; call elections; and sign or refuse to sign Acts into law.
Of course, the Governor-General in practice only exercises these powers according to conventions which ensure that the winning party gets government and the prime minister calls elections.
But the words of the Constitution do not state these qualifications, and there is a danger that a directly elected head of state might take them at face value claiming a popular mandate.
In the example given at the beginning of this piece, the Labor candidate might win the election for president and then call and election over the objection of the prime minister.
So why not codify the position of parliament and the prime minister rather than the president?
The critical issues the head of state deals with at present are: choosing a prime minister; agreeing to elections; and dealing with deadlocks between the houses.
Usually the choice of Prime Minister is obvious. The majority after an election is clear. However, as some state elections have shown, it need not always be the case. Also, what if there is a parliamentary motion of no-confidence in a Prime Minister? The head of state has a role in determining where there should be a new election or whether someone else should become prime minister straight away. This has happened in some states in the past.
A solution would be for parliament to formally choose the prime minister.
Immediately after an election, the president could preside over the first sitting of the House of Representatives whose first piece of business must be the election of a Speaker. The second piece of business must then be the election of a prime minister.
This happens in the ACT, and, whatever one thinks of the rest of the ACT system, this part works well.
The next issue is the no-confidence motion. Very simply, any no-confidence motion in the existing prime minister must name the new prime minister. The president would have no role in it.
On the head of state’s power to dissolve parliament, the best solution would be to have fixed-term elections. We should have an election on, say, the first Saturday in March every three years. Senators’ terms are already fixed at six years.
What about deadlocks between the houses? We could and should remove the Senate’s power to block Supply. The Senate, as a house of review should still be able to block or amend legislation. But the double dissolution seems a very cumbersome way of resolving disputes over legislation. There is a better way.
If the Government gets a piece of legislation through the House of Representatives and the Senate blocks it, it should stay blocked until the next election. If the Government wins the election it should then be able to pass the blocked legislation through the House of Representatives alone without referring it to the Senate. If the House passes it, that should be enough. After all, the Government seeking re-election would have gone to the people with all its blocked legislation as part of its platform. So if the people re-elect the Government they would have approved the legislation. Why should the Senate get another crack at it?
With this approach governments could either cop amendments to get legislation through immediately, or they could accept the delay and put the blocked legislation to the people as part of its re-election platform. Moreover, this has the advantage of the legislation being in precise terms.
Far too much has been made of the events of 1975. It is not a big deal to remove the Senate’s power over supply. It usually takes a year or more for a government to become to unpopular as to be unelectable. The blocking of supply gives an Opposition an election only a year or so early. Malcolm Fraser only needed to have waited 18 months and power would have fallen in his lap.
In modern times, the double dissolution is a clumsy weapon. It is usually used not to get legislation through, but as an excuse for early elections or to punish long-term senators. Usually it takes half a term to get significant legislation blocked twice by the Senate, by then the term has not got long to run.
We whinge about too many elections and the uncertainty of elections. Governments whinge about excessive Senate power or the Senate being unrepresentative swill. These proposals deal with those things, while still giving the Senate a change to block legislation until the people get a chance to see the detail.
Also, under these arrangements, the president could be elected for a fixed six-year term at the same time as the Parliament. Under that system presidential candidates could not be active politicians because all the active politicians would be standing for Parliament.
Under these plans, it would not matter if there were a direct election for the president. In fact I’d welcome it.