Tag Archives: Australian Constitution

Parliamentary report recommends referendum to solve the dual citizenship saga: Here’s why it won’t happen

The Conversation

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The dual citizenship saga that has rocked the parliament in recent months is unlikely to end any time soon. Shutterstock

Lorraine Finlay, Murdoch University

The release of the report by the Joint Standing Committee on Electoral Matters (JSCEM) into section 44 of the Australian Constitution is the latest chapter in the long-running dual citizenship saga. The committee was asked to consider the impact of section 44 and options for reform.

While the report emphasises it is for the Australian people to decide on the appropriate qualifications of their elected representatives, its very title – Excluded: The impact of section 44 on Australian democracy – is a clue to the final view adopted by the majority of JSCEM.

Is a referendum the answer?

The key recommendation of JSCEM is that there should be a referendum proposing either that sections 44 and 45 of the Constitution are repealed, or that the words “until the Parliament otherwise provides” be inserted into those sections.

Read more:
Explainer: what the High Court decision on Katy Gallagher is about and why it matters

The majority report states that the problems caused by section 44 are “wide-ranging” and “have significant and detrimental implications” for Australia’s democracy.

If either of the recommended referendum questions were passed, the effect would be to remove the disqualification criteria from the Constitution and instead leave it to the parliament to enact laws governing this area. This would supposedly allow for disqualification laws that better reflect modern community standards.

There are several practical problems with this, and that is without considering the underlying substantive question of whether section 44 should actually be changed.

The first problem is that it is highly unlikely a referendum would succeed, a point acknowledged by JSCEM. To succeed, a referendum question must be approved by not only a majority of voters across the country, but also a majority of voters in a majority of states. That means a referendum can be defeated with only 19.8% of Australians (being a majority of voters in each of the four smallest states) voting no.

It is highly unlikely that the Australian people would vote “yes” in a referendum that simply asks them to repeal section 44 – which is precisely what JSCEM has recommended. That would not only mean voting “yes” to allowing dual citizens to be elected (itself a controversial proposition), but would also allow individuals to be elected where they have been convicted of treason, are under sentence for a serious crime, or have a financial conflict of interest.

To be fair, JSCEM goes on to recommend that if the referendum passes, the parliament should enact laws to address matters of qualification and disqualification. Any such laws would most likely ensure that many of the circumstances described above would still result in disqualification.

But the difficulty with this is two-fold. The first is that – rightly or wrongly – many Australians blame our politicians for the problems with section 44. The idea they should put those same politicians in charge of deciding what disqualifications should apply to politicians in the future is unlikely to be met with great enthusiasm.

The second difficulty is that JSCEM is asking us to consider constitutional change in a vacuum. How can the Australian people judge whether or not to vote for repealing section 44 without knowing what, if anything, will replace it?

The committee suggests the removal or amendment of section 44 is a “necessary prerequisite” to a public debate on what constitutes appropriate parliamentary disqualifications.

I would suggest the opposite is true. A public debate on what constitutes appropriate parliamentary disqualifications is a necessary prerequisite to any referendum suggesting the removal or amendment of section 44.

In any event, the question of a referendum appears to be academic, with the government ruling out this option almost as soon as the JSCEM report was released.

The minority report

It is somewhat surprising that with recent polls suggesting a majority of Australians support the dual citizenship disqualification, only one committee member reflected this view and concluded constitutional change was not required.

Read more:
Dual citizenship debacle claims five more MPs – and sounds a stern warning for future parliamentarians

In his minority report, Liberal Ben Morton stated “there has been no compelling argument” to remove the dual citizenship disqualification. He also confirmed he would campaign against any constitutional change attempting to remove this requirement.

This provides further insight into why a referendum will not occur. A government holding a one-seat majority simply cannot risk the distraction and destabilisation of a constitutional referendum that would divide its own members.

Other reform options?

Despite this, majority report did go on to recommend a number of practical strategies to “mitigate the impact of section 44” if constitutional change is not pursued.

These include the development of online self-assessment tools, additional education and support for candidates, formalising the parliamentary referral process, and working with foreign governments to streamline citizenship renunciations.

These are mostly sensible recommendations that will encourage greater compliance with the existing constitutional provisions. Given it is highly unlikely a referendum will happen, they are also the most important in practical terms.

The JSCEM report provides a number of practical recommendations to improve compliance with section 44. But it also confirms there is no easy fix.

The ConversationInstead, it looks as though the dual citizenship saga still has a long way to go.

Lorraine Finlay, Lecturer in Law, Murdoch University

This article was originally published on The Conversation. (Reblogged by permission). Read the original article.

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The High Court sticks to the letter of the law on the ‘citizenship seven’

The Conversation

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The High Court has ruled Scott Ludlam, Larissa Waters, Fiona Nash, Barnaby Joyce and Malcolm Roberts ineligible to have stood for parliament at the 2016 election.
AAP/Shutterstock/The Conversation, CC BY-ND

Gabrielle Appleby, UNSW

Today, the High Court announced the fate of the “citizenship seven”, with only senators Nick Xenophon and Matt Canavan surviving the legal ordeal. (Although the victory will be of limited relevance to Xenophon, who has in the meantime announced his resignation from the Senate to return to state politics in South Australia).

In the case, the High Court, acting as the Court of Disputed Returns, found that four of the six senators referred to it, and the only member of the House of Representatives (Barnaby Joyce), were disqualified under Section 44 of the Constitution. With the exception of Xenophon and Canavan, it was found that the MPs had never been validly elected.

The court has declared all five seats vacant. The senators will be replaced through a recount from the 2016 election. The House of Representative seat of New England will go to a by-election on December 2, which Joyce will contest.

In the meantime, Labor has refused to offer the Coalition a pair for Joyce’s absence, and the Coalition will maintain government on a knife-edge, with 74 seats plus the support of the crossbench, and, if necessary, the Speaker’s casting vote.

Leaving to one side the immediate political consequences of the decision, what did the High Court say about the interpretation of the restriction on foreign citizens running for parliament in Section 44? And is this the last time we will have to think about the matter?

The possible interpretations of Section 44

The crux of the constitutional case was the interpretation of Section 44 of the Constitution – specifically sub-section (i). That, relevantly, provides:

Any person who … is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

Importantly, if a person is found to be in breach of Section 44 at the time they nominated for election, they will never have been validly elected.

The High Court has held that if a person has never been validly elected, their parliamentary votes during the time they purported to sit would still be valid.

However, questions have been raised as to the validity of the decisions of ministers who were not validly elected. This means there are possibly further unresolved issues around the validity of decisions made by Joyce and Fiona Nash, who, unlike Canavan, did not step down from their ministerial posts while the High Court made its determination.

Another important point that the court has previously clarified is that foreign citizenship is determined according to the law of the foreign state concerned.

None of the interpretations that were urged by the parties on the High Court were strictly literal readings of the words “citizen of a foreign power”. All the parties accepted that there had to be some level of flexibility, allowing a person who was technically a foreign citizen to nonetheless be able to run for parliament.

The real argument in the case, then, was how much flexibility could be read into the section.

The reason all the parties accepted that there had to be some flexibility in the words, was that the High Court had held as much in a 1992 decision of Sykes v Cleary. Relevantly, this case did not concern people who were unaware of their foreign citizenship, and so did not directly address the main point that was in issue for the citizenship seven.

Rather, the case stood for the proposition that a person may be a dual citizen and not disqualified under Section 44 if that person has taken “reasonable steps to renounce” their foreign nationality.

In the course of his dissenting judgment, however, Justice Deane made a comment that the provision should really only apply to cases “where the relevant status, rights or privileges have been sought, accepted, asserted or acquiesced in by the person concerned”. In this way, Deane suggested there was a mental element to being in breach of the provision.

Many of the interpretations urged on the court drew on this idea. They ranged from requiring voluntary retention or acquisition of citizenship or requiring actual knowledge of foreign citizenship, to a test of whether a person was on sufficient “notice” to check their citizenship status, to a need for the person to have real allegiance to the foreign power.

The High Court opts for certainty

The High Court opted for an interpretation of the Constitution that promotes certainty for future cases.

In a (rare) unanimous decision, it adopted a reading that, as far as possible, adhered to the ordinary and natural meaning of the words. It accepted that the literal meaning would be adopted, with the only exceptions those that had been established in Sykes v Cleary.

The court refused to read further exceptions into the provision based on knowledge, notice or actual allegiance. It said to do so would import a worrying element of uncertainty into the provision, which would be “apt to undermine stable representative government”.

The application to the ‘citizenship seven’

Once the High Court resolved the interpretation of Section 44, it had to apply this interpretation to each of the citizenship seven. The only two MPs who they found not to have fallen foul of this strict reading were Xenophon and Canavan.

Xenophon had what was referred to as “British overseas citizenship”. This had been inherited through his father, who migrated from Cyprus while it was still a British territory. The court accepted that Xenophon, while technically a type of British “citizen”, held no right of entry or right of abode, and thus he did not have “citizenship” for the purposes of Section 44.

Canavan’s facts were more complicated. His alleged citizenship turned on a change in Italian citizenship law that occurred because of a decision of the Italian Constitutional Court when he was two. The court received expert evidence on the Italian legal position, and it ultimately accepted that they could not be satisfied that Canavan was, in fact, a citizen of Italy.

Each of the other senators and Joyce accepted that there were, technically, citizens of a foreign country at the time of their nomination. But they argued they had not known of this when they nominated for parliament. The court’s strict interpretation of Section 44 offered them no comfort.

Is this the end of the parliament’s Section 44 dramas?

In the immediate aftermath of the High Court’s decision, the government has announced it will refer the decision to the Joint Standing Committee on Electoral Matters to discuss, among other things, possible amendments to Section 44.

The issue, it would seem, is no longer the uncertainty around whether a person is or is not disqualified. Because of the strictness of the High Court’s interpretation, all potential parliamentarians are on notice to check thoroughly their citizenship status. Part of the referral to the committee is to investigate ways to “minimise the risk of candidates being in breach of Section 44”.

Rather, the more fundamental issue is now whether this is a desirable state of affairs given the large numbers of Australian citizens who are dual nationals, and who may not wish to renounce their citizenship to run for parliament. Thus, we as a nation stand to lose potential parliamentarians by excluding a pool of people that is likely to grow, not diminish.

Further, there is another question as to whether Section 44, when interpreted in this way, is apt to achieve its purpose. The High Court accepted that the purpose of Section 44 was to ensure that MPs do not have a split allegiance or loyalty.

The ConversationMany might argue that this purpose is still an important one. Even if that is accepted, it would seem that denial of eligibility to a dual national is a particularly blunt instrument to achieve it. On the one hand, it captures many people who do not even know they are dual citizens. On the other hand, the relatively easy step (in most cases) of renouncement means that those people who do have a split allegiance, but who want to run for parliament, have only to fulfil these formalities to do so.

Gabrielle Appleby, Associate Professor, UNSW Law School, UNSW

This article was originally published on The Conversation. (Reblogged by permission). Read the original article.

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Voters’ dislike of politics makes fixed four-year parliamentary terms look appealing

The Conversation

Jamie Fellows, James Cook University

Liberal MP David Coleman plans to introduce a private member’s bill to bring in fixed, four-year terms for the House of Representatives. Currently, our federal lower house is elected to serve up to three years. As Coleman notes: The Conversation

Since Federation … the average term has been a little more than two-and-a-half years, as prime ministers have wide discretion to call an election at a time of their choosing.

The House of Representatives is the only lower house chamber in the Australian parliamentary system with non-fixed three-year terms.

In March 2016, Queenslanders voted in a referendum to adopt fixed, four-year terms for members in the state’s lower house. Although the result could hardly be described as a landslide endorsement (53% yes; 47% no) the victory is a salient message to those in the federal parliament. People are likely to vote for longer parliamentary terms. They want fewer elections and are dissatisfied with politics.

Pros and cons

In Queensland it was obvious proponents of longer parliamentary terms relied on voter dissatisfaction. They claimed, among other things, fewer elections would:

  • “prevent summer holidays being interrupted by an election”
  • remove uncertainty for “families who like to plan their travel”
  • “for regional and north Queensland, it means the election period is taken out of the wet season”.

To be fair, arguments in support of longer parliamentary terms have merit. They include benefits such as:

  • certainty about election dates
  • removing the strategic and political advantage of snap elections
  • cost savings due to fewer elections
  • confidence in the business community
  • improvement in public policy outcomes and government decision-making
  • consistency with the states and territories.

The chairman of the Australian Institute of Company Directors and boss of the Australian Chamber of Commerce and Industry claim longer terms create stability for business.

Naturally, there are also arguments against extending parliamentary terms. These might include:

  • fewer democratic opportunities and loss of voter control
  • more complacent governments and politicians
  • politicians’ job security ahead of voters’ rights
  • no guarantee of better planning and policy.

Hurdles to overcome

Journalist Mike Steketee has described federal four-year parliamentary terms as being the “bridesmaid but never the bride”. This is because the idea of longer federal parliamentary terms never actually reaches the “political altar”.

Even though the “bridesmaid” is much closer to the altar these days, there are still several potential hurdles to overcome. One major hurdle relates to the constitutional difficulty associated with referenda.

Parliamentary terms for the Senate (six years) and the House of Representatives (three years) are established in the Australian Constitution (Chapter 1, Parts 2 and 3). Any alteration to these constitutionally entrenched arrangements must comply with section 128. This requires a referendum in which a majority of people in a majority of states and territories must vote for the change.

Referenda in Australia have traditionally not fared well. Only eight out of 44 have passed.

The next impediment relates to private member’s bills – what Coleman plans to introduce. Private member’s bills are notoriously difficult to pass without overwhelming support from other members.

Support for the bill might also be required from the crossbenchers. It would be difficult to know how the Greens or independents might cast their votes.

Since Federation in 1901, around 20 private member’s bills have become law – out of more than 450 that have been introduced. Support for the bill might be easy to attract this time, though, given politicians are being asked to vote on their own longevity.

This issue may not get too much traction federally due to differences between state and federal areas of responsibility. Voters might not tolerate a longer time to cast their vote as they would on certain state or territory issues.

For many, Indigenous constitutional recognition, same-sex marriage, taxation reform, asylum-seeker policy and the National Disability Insurance Scheme – to name a few – take precedence over certain state and territory issues.

The question now is whether federal politicians are prepared to force the Australian people to vote on whether they have an extra year in the job (or possibly two years in the Senate’s case).

A cynic might say the best way to secure longer federal parliamentary terms at a referendum is to follow Queensland’s approach: adopt complete bipartisanship, say very little in the media, and harness the discontent of the electorate.

Jamie Fellows, Lecturer in Law, James Cook University

This article was originally published on The Conversation. (Reblogged by permission). Read the original article.

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The McGarvie Model: a Republican Equivalent of Our Present System of Democracy

Papers by

The Hon Richard E McGarvie AC

Former Governor of Victoria and

Former Judge of the Supreme Court of Victoria


The Papers These papers identify the strengths and safeguards on which the democracy of our present system depends and outline my model for a republican equivalent of that system of democracy.  They also outline my approach for deciding the republic issue in a way which will not strain our federation.

I do not side with monarchists or republicans.  My deep concern is that with either system we must maintain one of the world’s best democracies which Australians have built.  The papers in Part 1 identify the model for a republic which would maintain the strengths and safeguards of that democracy and those which would not.

Part 1 (Papers 1 to 35), deals with the various issues that had arisen up to and immediately after the referendum of November 1999. Papers 1 and 2 compare my model with the two models which in May 1997 were its rivals, the parliamentary-election model supported by Mr Malcolm Turnbull and the Australian Republican Movement, and the direct-election model of the type outlined in the Report of the Republic Advisory Committee.  Those were the three main models receiving public attention until the Constitutional Convention in February 1998.  Papers 3 and 4 explain what Governors-General and Governors do.  Papers 5 and 6 outline my model and its operation.  Paper 7 identifies the questions which underlie the republic debate and the way of assessing how safe the models would be for our democracy.  Paper 8 outlines the responsibilities of citizens for their democracy.  Papers 9 to 12 deal with what should be investigated in the republic debate and the particular need for business leaders to apply their skills to the issues.  Papers 13 and 14 respond to criticisms of my model made from republican and monarchist viewpoints.  Paper 15 reflects on the task of the Constitutional Convention.  The other papers were written after that Convention which produced four detailed models, the subject of its final decisions.  Paper 16 describes the growing support shown for my model.  Paper 17 explains the main safeguards of our democratic system and looks at the challenges facing it.  Paper 18 outlines the reasons for the likely failure of the referendum in 1999 and forecasts that a model such as mine, rather than one for a popularly-elected President, is likely to be the subject of a second referendum in about 2005 which would resolve the republic issue.  Paper 19 discusses how the courts can continue to do their work, which is essential to our democracy, and surmount the daunting obstacles of next century.  Papers 20 to 27 identify the five fundamental flaws which the constitutional changes of the 1999 referendum would have introduced into the actual operation of our constitutional system, their effect on our democracy and federation,and how to go about resolving the republic issue after failure of the referendum.  Papers 28 and 29 emphasise the importance of the influence of women and business leaders on the outcome of that issue.   Paper 30 shows how the positions taken by government, opposition, media, educators and yes case campaigners deprived Australians of information essential to making informed decisions upon the 1999 referendum.  Papers 31 and 32 reflect on why the referendum package could not gain support, the continuing majority push for an Australian head of state and the safe way of resolving that issue by 2005.  Paper 33 demonstrates that despite failure by government,opposition, intellectuals and the media to expose the fundamental flaws of the referendum package, the ordinary voter was not satisfied that it was safe and satisfactory and voted it down.  The small percentages whose no vote was mainly motivated by insistence on keeping the monarchy,or on having a directly-elected president, are seen.  The fact that Australia is already in substance a republic is shown in Paper 34 to have caused both sides to distort their arguments and usually avoid ever mentioning the McGarvie model.  The paper explains why that model will prevail in the impending contest with a model for a directly-elected president.  It emphasises that the McGarvie model continues the four essential features of the office of head of state crucial to our democracy but models for a directly-elected president do not continue even one of them.  Because this is important to the ordinary Australian voter, the electorate would be confident their democracy would be safe in a republic based on the McGarvie model and be prepared to accept it, but would never accept one based on the direct election of presidents.  In analysing the reasons why 55 per cent voted against the referendum package, Paper 35 draws on opinion polls.  It identifies the process which has the best prospect of building the consensus necessary to enable the issue to be resolved by about 2005.  It explains how that process would be greatly retarded by any political party adopting and promoting a particular model.

Part 2 (Papers 36 and later), concentrates on informed, fair and effective process for the early resolution of the head-of-state issue and the plan of the Corowa Peoples Conference 2001 to initiate such a process.  Paper 36 explains how the move to federation was given fresh momentum when stalled in 1893.  It draws on that experience to point to the practical process that would give fresh momentum to the presently-stalled move to resolve the republic issue, and lead to early resolution.  Paper 37 elaborates on the practical process for early resolution of the republic issue indicated by the experience of federation and the 1999 referendum.  Paper 38 explains how the Corowa Peoples Conference 2001, to be held on 1-2 December 2001, aims to recommend a process which would restart the stalled move to resolve the head-of-state issue.  Paper 39 shows the categories of people to be invited to the Corowa Conference.  Paper 40 remains relevant only to show the Draft Proposals referred to in other papers but now contained with slight amendments in Paper 47.  Paper 41 explains why the Corowa Conference is limited to process and aims to operate in a non-partisan way, and how the process proposed for consideration would work.  Paper 42 responds to an editorial in Quadrant which criticises the holding of the Corowa Conference. Paper 43 explains the need for early resolution of the head of state issue and a process for consideration by the Corowa Conference that would achieve that. Paper 44 outlines the practical advantages of that process and the weaknesses of other proposed processes. Paper 45 explains the final design of the Conference and how it will operate. Paper 46 is an executive summary of the process proposed in Paper 47. Paper 47 sets out the process proposed by Richard E McGarvie and Jack Hammond QC for consideration by the Conference, which would resolve the head of state issue for the whole federation. Paper 48 deals with the position of the states if Australia separates from the monarchy.

Resolving the Republic Issue

My interest grew from the request, while I was Governor of Victoria in 1993, to give my views to the Republic Advisory Committee on the minimum changes necessary to achieve a viable republic which would maintain the effect of our current conventions and principles of government.  I realised that our democracy is so good that it must be preserved, that the less the change the higher the prospect of preserving it, and that evolution in Australia since 1788 has taken us to the position where we are almost a republic and only minor change is necessary to make us one.

The Queen is the formal head of state but the Governor-General and Governors are the operative or de facto heads of state of the Commonwealth and each State.  They exercise the few remaining head-of-state powers that belong to the Queen, and the other head-of-state powers that now belong to them, on the advice of their Commonwealth or State Ministers. The Queen has no authority, control or veto over the Governor-General or Governors whatsoever.

In my model the positions of the Governor-General and Governors would continue unaltered and under the same names.  The model would transfer to them the remaining powers, functions, rights and attributes of the Queen and the Crown so that they become the formal as well as the operative heads of state of their constitutional units.  That makes legal changes but no operative changes and leaves them operating as they have for a century.  Conventions are binding because the ordinary operation of the system provides practical penalties for their breach and, as the system will continue to operate in the same way and provide the same penalties, all conventions now binding will remain equally binding.

The Queen’s one remaining active constitutional duty, appointing or dismissing Governors-General and Governors, will be done in each system, on the advice of the Prime Minister or Premier, by its Constitutional Council of three experienced Australians automatically designated by constitutional formula under the Commonwealth or State Constitution.  They would be persons retired from non-political positions of high constitutional responsibility and not over the age of 74.  The earlier age limit of 79 was abandoned after criticism at the Constitutional Convention. There is now no minimum age requirement.  Retired judges are eligible as members only if they have at least ten years’ service as a judge. For example, if my present model of the Constitutional Council for the Commonwealth system had been in operation at the time of the Constitutional Convention, the three eligible members would have been the two most recently retired Governors-General, Sir Ninian Stephen and the Hon Bill Hayden,and the former Governor of Queensland, Mrs Leanne Forde, the most recently retired State Governor.

It would still be the Prime Minister or Premier who would choose a new Governor-General or Governor and the Constitutional Council would be bound by convention to appoint or dismiss as advised.  A Council neither suggests nor chooses a new Governor-General or Governor.  Its only duty is to appoint or dismiss as advised.  It would do no more and no less than the Queen does now and do it in exactly the same way.

Because it would operate in the same way and retain all its strengths and safeguards, democracy would be as safe in a republic under the McGarvie model as it is now.  With the model in operation in the Commonwealth and each state system, Australia would be entirely a republic.  Australia would then have no Queen.  No monarch would have any formal or other part in any of Australia’s constitutional systems.  As Head of the Commonwealth of Nations, the monarch of the United Kingdom would have the same relationship with Australia as now exists with Commonwealth countries which are republics, such as India and South Africa.

My approach is that the republic issue should be resolved in a way which would result either in the whole federation becoming republican together or all systems remaining monarchies.  That can be achieved under ss.128 and 51 (38) of the Commonwealth Constitution and s. 15 (1) of the Australia Acts 1986 by requiring a referendum to be passed by a majority of Australian voters and a majority in every State, and a request from each State Parliament.  While at first sight that seems a difficult process, it has to be remembered that, before federation, every State voted for it in a referendum; since federation seven of the eight successful referendums, all that have passed since 1910, have been carried by a majority in every State; and that if every State voted for a republic, their State Parliaments would be highly likely to make the request.

The scene changed and a new start was made at the Constitutional Convention.  Detailed models were put forward and I refer to each of them by the name of the delegate moving its adoption.  My model is outlined in vol.4 of the Report of the Constitutional Convention 1998, at pp. 838-9.  To comply with the decision of the Convention the head of state is there called ‘President’  In the model that I advanced before that decision, and advance since the Convention, the head of state of the Commonwealth of Australia will still be called ‘Governor-General’ for reasons which appear from these papers.  What I said at the Convention appears from vols 3 and 4 of the Report at pp. 27, 40-2, 137, 142-3, 345-7, 394-5, 516,696-8, 838-845, 870, 936 and 1000-1.  The Turnbull model for parliamentary election attracted most votes, though not a majority of delegates, my model was next, followed by the Gallop model then the Hayden model, both models for direct election.  The parliamentary election model and both direct-election models differed from the forms of those models previously advanced.  They are set out in vol. 1 of the Report of the Constitutional Convention 1998, pp. 44-5, 47-9, 124-30.  They all abandoned dismissal by a two-thirds majority of a joint sitting of Parliament and substituted other methods of dismissal.  The Turnbull model added a committee representative of the community to prepare a short list from candidates nominated for President by citizens or community organisations.  The Gallop model and the Hayden model added provisions to restrict those who could be candidates in an election.  The Convention attracted a great deal of public attention and brought home to the community what the shallow debate had not previously revealed – that some models carry risk for the democratic system.

There are four essential features of a head of state in a system such as ours which a model must be structured to produce because they are crucial to the strength and quality of the democracy of the system:

1. Chosen in a way that gives no mandate to encourage rivalry with the elected Government;

2. Liable to prompt dismissal for breach of the conventions to (1) exercise powers as Ministers advise, (2) not speak politically and (3) not collaborate politically with the Opposition;

3. Chosen by a method and operate within a setting that provide a respected person who remains above partisan politics and exerts a unifying influence; and

4. In a position to exercise effectively and impartially the fail-safe mechanism of the discretionary reserve authority.

The first three requirements exist because our kind of head of state is a nominal chief executive with the legal right to exercise at will or refuse to exercise great constitutional powers at the centre of our system of government; and with numerous opportunities to speak or act against the Government on political issues.  Effective democratic government depends on the system having inbuilt mechanisms to ensure that the headof state never becomes a political rival of the elected Government. Several mechanisms presently combine to achieve this in the case of the Governor-General and Governors.  For example, the Governor-General,being selected by one person, the Prime Minister alone, is given no mandate or power base to encourage rivalry with the Government.  The Governor-General must comply with the three constitutional conventions, which are made binding by the effective penalty of prompt dismissal for breach.  The Prime Minister, in the interest of his or her own reputation, has every incentive to select a respected person likely to remain above politics and exert a unifying influence.  Such persons are not discouraged from agreeing to serve, by the prospect of public objection and character assassination in the process of selection.

The fourth requirement is necessary because we have the safety device of a protective mechanism that enables the democratic system to be protected from stalling, damage or destruction in the exceptional circumstances of a constitutional crisis with which neither the political nor judicial processes are able to cope.  When it is absolutely necessary for the effective operation of our constitutional system and its essential safeguards of democracy, that fail-safe mechanism gives the Governor-General authority in the last resort to act independently of ministerial advice and exercise a reserve power so as to refer an exceptional constitutional malfunction to the Parliament or people for resolution.  Because I took it for granted that every model would guarantee that this requirement is fully met, my papers before the Constitutional Convention mentioned only the first three requirements.  Since the Turnbull model adopted at the Convention would have crippled the fail-safe mechanism by giving Prime Ministers instant power to dismiss Presidents, it became necessary to emphasise the fourth requirement.

The present system and the McGarvie model, the only truly minimalist republic model now being considered, both satisfy those four requirements in full.

Australians are instinctively wise constitutional people.  They know that we are trustees of our democracy and federation for future generations and that any constitutional change we make is likely to last for a century or centuries.  The majority of voters in November 1999 were not satisfied that the Turnbull model would meet the above requirements.  The substantial risks to the strength and stability of our democracy and federation which would have been introduced by the changed operation of the system under the Turnbull model and the likely existence of dissenting States, were fairly obvious to most of those who thought about it.  My papers before the referendum predicted that it would fail.

Under the Turnbull model a committee representative of Parliaments and the community would have prepared from persons nominated by citizens and community organisations a short list of those it considered suitable. That was to be considered by the Prime Minister and Leader of the Opposition who were expected to move and second a motion before a joint sitting of both Houses of Parliament for the election of a person as President. If elected by a two-thirds majority of a joint sitting the person would become President for a term of five years, but could at any time be dismissed instantly by a document signed by the Prime Minister.

It is vital not to consider the model in theory but to look at the way it would actually have worked in practice.  The President would be given the strong mandate and power base of selection by the Short-List Committee and the political parties on both sides of Parliament, and election by all or almost all the members of Parliament.  In addition the title ‘President’ would encourage both the people and the head of state to regard the holder of the office as having a role similar to the President with whom Australians are most familiar, the powerful President of the United States.  This would tempt the President to act as champion of the people against the elected politicians of Parliament and Government, without going so far as to be dismissed.

Because no federal Government for fifty years has had a two-thirds majority of a joint sitting, the Turnbull model would give the Opposition the power, by withholding its vote, to frustrate the Government from appointing anyone as President.  That would leave the office vacant, its duties being performed by a temporary Acting President, and create the impression of a Government unable to govern.

There is general agreement that Prime Ministers of all parties have done well in their selections of suitable Governors-General.  Under the Turnbull model, because peak organisations and Parliaments would be able to nominate candidates for President and because the membership of the Short-List Committee and the selection of candidates for the short list were both to take account of community diversity, the suitability of persons for the office of President would have been likely to become a secondary consideration.  Members of the Committee would have seen their primary task as seeking to ensure that the candidate from the group or category they were regarded as representing be included on the short list.  When the names got to the political party meetings veto and prejudice would have had full sway.  Whatever confidentiality provisions were sought to be imposed, the identity of those being considered would leak from the Short-List Committee and the party rooms.  Baseless allegations of discreditable conduct would be made against candidates and receive wide publicity.  There would be pressure for  as in the case of Supreme Court judges in the United States. There would be media polls and votes which would place great pressure on the political parties to choose the celebrity scoring the highest in public popularity.  Many suitable people of high reputation such as those who have been our Governors-General, would not be prepared, near the end of their careers, to allow their names to be involved in that process and would refuse to be candidates.  People of a different calibre would become President.

At the Constitutional Convention, dismissal by a two-thirds majority of a joint sitting, which would have meant that the President was undismissible in practice and the conventions no longer binding, was abandoned, but the substituted instant dismissal by a document signed by the Prime Minister have inhibited or paralysed the exercise of a reserve power when necessary in a constitutional crisis.

If the referendum had passed in November, it would automatically have converted the Commonwealth system to a Turnbull model republic on 1 January 2001 but have had no effect upon the state systems.  There was a high probability that if it had passed, it would have been supported in only a majority of States and one or two States would have dissented. It would have created real tension between the units of the federation for the people of dissenting States to have been forced into a Commonwealth republic they did not trust with their democracy.  No referendum which has passed since 1910 has had any dissenting State.  Whatever the theorists say, dissenting States would have been under extreme pressure from circumstance and ridicule to change themselves to republics at State level, despite the vote of their majority in the referendum on the Commonwealth. If a State requiring a State referendum to change itself to a republic did not pass it, a most unsatisfactory situation within the federation would have resulted.

Failure of the referendum in 1999 has not resolved the republic issue.  Numerous voters who favour a republic voted ‘no’ either because they realised the effect the flawed Turnbull model would have on our democracy and the potential strains on our federation if the referendum solely on the Commonwealth system were passed, or because they were not satisfied that the package was safe and satisfactory.  The issue will only be resolved when voters are given a clear choice between the present system of democracy under a monarchy, and a republican model which would maintain the quality of that democracy with all its strengths and safeguards: and when the choice can be made for the whole federation.  With the rejection of the Turnbull model, it has become necessary to consider whether a model such as mine,for the republican equivalent of our present system is preferable or one of the models for direct election.  Paper 20 and Papers 31 to 35 indicate how that should be done.

When the two models for direct election are examined, it will be seen that they are quite incompatible with our kind of democracy.  Inevitably a politician under the control of a political party (whether currently a party member or not), the President would have the enormous mandate and power base of the only office-holder directly elected by the whole country. When President and Prime Minister are controlled by the same political party the President’s checks and balances would be ineffective.  When controlled by opposing parties there would be strong rivalry and two competing centres of political power and influence.  In neither situation would the President be suited to act as constitutional umpire.

Under both direct-election models the method of dismissing a President would mean that in practice the penalty of prompt dismissal that gives binding force to the three conventions would disappear.  A President could be dismissed on the grounds of misbehaviour or incapacity by an absolute majority of the House of Representatives under the Gallop model and of a joint sitting under the Hayden model.  An investigation into whether there had been misbehaviour could take as long as the two years the similar investigation in respect of Mr Justice Lionel Murphy took in the 1980s. Minority Governments would have difficulty in obtaining the necessary majorities. A President facing dismissal could prevent that occurring by dissolving Parliament at a time electorally suitable to his or her party.

There is no proposal for any mechanism to replace the conventions which now firmly preclude the head of state from speaking politically or collaborating politically with the Opposition.  It has been suggested that the models could replace the basic constitutional convention which now binds the Governor-General to exercise powers as Ministers advise, with a legal obligation to the same effect.  That would validly and effectively preclude the President from exercising powers without Ministers’ advice but would , in practice, be ineffectual to bind the President to exercise powers whenever advised by Ministers to do so.  Seeking to have the courts enforce that obligation would be as damaging to the courts as to the political process.  A President controlled by the party opposed to the Government could exert an effective veto over the Government by refusing to exercise powers when Ministers advise.  A President with that veto and free to speak politically and collaborate with the Opposition would be a powerful political figure. Democratic government would become unworkable.

Many people with a background and reputation equipping them for the post, such as some of our best Governors-General, would not be prepared,towards the end of their careers, to stand as a party candidate and campaign for election upon their personal qualities or the policies of their party or both.  A President endorsed by a political party, obtaining 35 per cent of first-preference votes and elected with 52 per cent of the vote after distribution of preferences, would not be well placed to have the necessary unifying influence within the community.

When Australians become aware that, in reality, the direct-election models would be worse than the rejected Turnbull model in depriving our democratic system of strengths and safeguards, there will be little support for them.

It would be feasible for us to have a directly-elected President only if we fundamentally changed our head of state from a nominal chief executive to a chief-executive head of state as in the United States or a non-executive as in Ireland.  Even if agreement could be reached to take either of those courses, it would involve a basic recasting of our constitutional system, be difficult, take a lot of time and have a most uncertain outcome.

The failure of the referendum in 1999 has produced widespread concern.  Republicans who put their democracy and federation first and voted ‘no’ resent that they did not have a fair chance to vote for a viable republic.  Others are concerned that by leaving this emotionally-charged issue unresolved we are taking the path of Canada, where twenty years of continued constitutional dispute is having a destablising effect upon the federation.  There is embarrassment at Australia being seen overseas as having sought ineptly to resolve an important constitutional issue upon a model so obviously defective.  There is a need to abandon shallow debate and have the Commonwealth and States work together in co-operation and with the community to look in depth and identify the workable republic model safe for democracy,and the referendum process enabling a choice to be made for the whole federation together.  It would be practicable in about 2005 to resolve the republic issue on a model such as mine in a second referendum applying to the whole federation.

Since the Corowa Shire Council on 19 December 2000 decided to host the Corowa Peoples Conference 2001, I have not initiated promotion of my model and do not intend doing so until after the Conference.  The papers in Part 2 concentrate on putting in place an effective process for resolving the head-of-state issue, before debating and deciding on whether the federation should separate from the monarchy and the merits of models to replace it.

Unless otherwise indicated, I am the author of the papers on this website.

Richard E. McGarvie
April 2001

Reblogged by permission. Read the original documents here

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How unwritten rules shape ministerial accountability

The Conversation

Ryan Goss, Australian National University

Recent police investigations into the alleged actions of Mal Brough, before he became special minister of state, have led some to suggest that “Westminster tradition” demands Brough step aside. But what does “Westminster tradition” mean in Australia, and how does ministerial responsibility work?

The Australian parliament’s website says the:

… federal government is held responsible to both the House of Representatives and the Senate.

But how? And why?

Australia’s Constitution sets the ground rules for its system of government. But many things one might expect to be in it simply aren’t there.

The Constitution doesn’t spell out how the prime minister is to be chosen, for instance, or when they should be obliged to resign. There’s no reference at all to the prime minister in the document. And although the Constitution requires ministers to be members of parliament, there’s no mention of terms such as “responsible government” or “ministerial responsibility”.

Despite this, jurist Sir Isaac Isaacs described responsible government as:

… part of the fabric on which the written words of the Constitution are superimposed.

And in a landmark 1992 High Court judgment, Chief Justice Anthony Mason said:

… the principle of responsible government – the system of government by which the executive is responsible to the legislature … is an integral element in the Constitution.

But where do we find this “integral element”, if not in the text of the Constitution?

What are conventions?

In many important areas of Australia’s system of government, much is determined by unwritten rules – or what we call “constitutional conventions”. Australia shares this characteristic with the UK’s Westminister system of government, on which Australia’s is partly based.

As British legal writer Sir Ivor Jennings put it, constitutional conventions:

… provide the flesh which clothes the dry bones of the law.

They are rules that help make the legal text of the Constitution work, and they can add some flexibility to constitutional arrangements by evolving over time.

Australia isn’t alone in relying on such conventions to make its Constitution work. Many countries have similar conventions to Australia’s; different legal systems also have different conventions. In the United Kingdom, for instance, it’s a convention that the Speaker of the House of Commons is truly independent of party politics – but there is no such convention in Australia.

As they are unwritten rules, it’s not always entirely clear when a constitutional convention exists, let alone exactly what it allows or requires. Unlike laws, constitutional conventions cannot be enforced in the courts.

So, when a convention is broken, the consequences are usually political rather than legal. Instead of being brought before the courts, a convention breaker is more likely to suffer political criticism, be the subject of popular outcry, or be punished at the ballot box.

But while conventions cannot be enforced in the courts, they’re understood by everyone involved to be important constitutional rules.

Why is it so?

When the Australian Constitution’s framers were drafting its text in the late 1800s, they thought certain things went without saying, given the way the system was designed.

That means Australia’s constitutional system is built on the assumption that all ministers will be responsible to the parliament and, through the parliament, responsible to the Australian people. But there’s no precise legal statement of how that assumption works, what it covers, and what happens if the ministers are not sufficiently responsible.

The general understanding is that ministers are accountable to parliament for their policy decisions, for the administration of their departments and for any relevant indiscretions. But these are unwritten rules: what does “accountable” mean anyway?

For some, it means the minister must resign upon the discovery of any misadministration or mistake. For others, accountability requires that the minister is obliged:

… to explain and to justify his or her conduct, the [parliament] can pose questions and pass judgement, and the [minister] may face consequences.

But there’s no authoritative view.

The reality is that political circumstances will determine what’s required of a minister, and the consequences for not meeting expectations. If a minister has the support of their party colleagues, for example, it’s possible that less will be required of that minister and that the consequences will be less severe than they might otherwise have been.

What chance reform?

A desire for greater certainty has led to some discussion in Australia – and elsewhere – of arguments in favour of codifying constitutional conventions and making them enforceable as a matter of law. This is certainly possible.

As recently as 1977, the Australian Constitution was amended to codify and entrench what had previously been a convention about filling casual vacancies in the Senate. The argument for codification may make most sense in the context of conventions about the Governor-General’s reserve powers, over which there was so much controversy in 1975.

But the risk of codifying conventions more generally is that we transfer power away from democratically elected representatives and towards the courts. If we legally require ministers to resign for poor administration of their departments, for example, a judge might have the final say about whether a particular minister should resign for a particular action. This may undermine the extent to which the people can control their government.

The question then becomes whether we prefer greater flexibility and democratic control over the government, or greater certainty and judicial control. But there may be a middle ground.

The Australian Department of Prime Minister and Cabinet, for instance, offers a “guidance” document on those constitutional conventions known as caretaker conventions. These conventions affect how government operates during election campaigns.

The document is “neither legally binding nor hard and fast rules”, and cannot be enforced in the courts. But it offers clarity for those affected by the relevant constitutional conventions. Similar guidance documents on other conventions could provide greater certainty about the relevant unwritten rules.

But, as things stand, it’s incumbent on all of us, as citizens in a democratic society, to ensure that our representatives hold our government to account.

This article is part of a series on breaking political conventions. Look out for more articles exploring various political conventions in the coming days.

The ConversationRyan Goss, Lecturer in Law, Australian National University

This article was originally published on The Conversation. (Reblogged by permission). Read the original article.

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