Speech by Malcolm Turnbull, Deakin University,
6 August 1998.

Malcolm Turnbull is the Chairman of the Australian Republican Movement

In February this year the Constitutional Convention finally concluded with a recommendation, overwhelmingly carried, that the Bi-Partisan Appointment of the President Model be put to the people in a referendum pursuant to section 128 of the Constitution.

Both the Prime Minister Mr Howard and the Opposition Leader Mr Beazley undertook that they would support such a procedure, and so, notwithstanding the seismic shifts currently underway in Australian politics, we can expect that this will occur.

Is the Bi-Partisan Model a good one for Australia? Would a variant have been preferable? Most relevantly of all, can it carry the day? Let me quickly summarise what the Bi-Partisan Appointment Model involves:

• A President would be Australia's Head of State, replacing the Queen and her representative the Governor General.

• The President would have the same powers as the Governor-General does today.

The President would be an Australian adult citizen and would be chosen by a two thirds majority of a joint sitting of both houses of the Australian Parliament. The motion of appointment would be moved by the Prime Minister and seconded by the Leader of the Opposition.

A degree of public consultation would precede the nomination of the President. This would involve consultation with State, Territory, Local governments. Nominations, suggestions and so on would be considered by a bi-partisan committee comprising representatives of all parties having "party status" in the Parliament and such committee would, consistent with maintaining a workable size, be representative of the diversity of Australia in terms of ethnicity, age, gender and geography. In short, it will not be able to be comprised solely of middle aged gentlemen from Sydney and Melbourne.

Nonetheless, the final choice will be very much in the gift of the leaders of the two major political groups in the Parliament: in today's terms John Howard and Kim Beazley.

The powers of the President would be handled in this way: in those circumstances where the Governor-General has conventionally acted on advice (which is in all cases but those involving the use of the reserve powers), the Constitution will state that the President will act on advice.

However, this will not be so in those areas where the reserve powers are, or can be, relevant which are:

• appointment and dismissal of the Prime Minister

• dissolution of Parliament and

• the issuing of writs for an election

In this area, the Convention decided not to codify the constitutional conventions, for reasons I will return to, and instead resolved that the Constitution should state that the existing conventions which govern the office of Governor General should continue to apply.

In terms of dismissal of the President, the Convention resolved that the Prime Minister should have the power to dismiss the President. Within 30 days the President would be required to bring his action before the House of Representatives for ratification. If it were not ratified it would constitute a vote of no confidence and, consistent with convention, he would be obliged to resign.

It should be noted in this context that following the removal (or indeed the resignation, death or disability) of the President the office would be filled, pending a formal new appointment by the Joint Sitting, by the Senior State Governor which is consistent with current convention.

It can be seen that this model is essentially a republican facsimile of the status quo with three significant innovations:

• the President is appointed by a bi-partisan, parliamentary process instead of as at present, by an hereditary, sectarian procedure governed by British law in the case of the Queen or by the decision of the Prime Minister in the case of the Governor-General.

• while the reserve powers remain the same (with all of the attendant merits and vices of the currrent dispensation), the non-reserve powers are to be stated to be exercised on advice thereby making the constitution a more accurate reflection of how the system actually works.

• while the President can be dismissed by the Prime Minister; thereby preserving the current arrangement as between the Prime Minister and the Governor General, the Prime Minister cannot, in a republic, sack the President and appoint a new one in his or her place. The casual vacancy so created will be filled by the senior State Governor an office over which the Prime Minister will have had no influence at all and, within a specified interval of [90 days], the Parliament will convene in a joint sitting to appoint a new President which appointment will require, as we have seen, the concurrence of the Opposition Leader.

At the Convention the debate as to the type of republic model focussed largely on the mode of appointment, to some extent on the way in which the powers were to be expressed and also, to a very limited extent, on the mode of dismissal. On appointment there were essentially three types presented:

• Prime Ministerial appointment, best exemplified by Richard McGarvie's eponymous model.

• Direct election by the people

• the Bi-Partisan model favoured by the ARM and, ultimately, the Convention.

The McGarvie Model was favoured by many conservatives as, I suppose, the least of all evils. It was a curious specimen involving the creating of a Constitutional Council of old people with, as I recall, a minimum age of 65 and a maximum age of 79. These former Governors-General, Governors and Chief Justices would take the place of the Queen in the current system and appoint and remove Presidents on Prime Ministerial advice retaining the ability to counsel the Prime Minister on his recommendation but, regardless of their views, would nonetheless have the obligation to act on it.

We tried in vain to persuade Mr McGarvie to present a Prime Ministerial appointment model in more palatable form, with the President being appointed, for example, by a simple majority of the House of Representatives. His council of elders struck most delegates as being likely to confuse the issue and create the impression that this distinguished committee actually made the appointment.

Mr McGarvie would not change a letter of his model, and his commitment to it was quite unrelated to its eponymous nature as it was suggested, by way of inducement, that the new Head of State could be called the Greater McGarvie (at the federal level) with State Governors becoming Lesser McGarvies. A Territory Administrator logically would be a Minor McGarvie. The Real McGarvie, or should I say the McGarvie Incarnate, was unmoved by this and stuck to his guns.

The real flaw in Prime Ministerial appointment is that it permits the Prime Minister to put a political crony in the job. Worse still it allows him to remove a President and replace him with a crony. It is one thing to appoint Bill Hayden, it would be another to remove Sir William Deane and replace him with, say, Ian Sinclair.

Direct election was a much more compelling alternative and it attracted passionate support from its adherents. They made many arguments in favour of that mode of election although they tended, most of all, to rely on the fact that many opinion polls have shown most Australians want to elect their Head of State.

All of the debates about modes of appointment tended at the Convention, and since it concluded, to overlook the preliminary fundamental question: what is the nature of the office we are discussing? Almost every delegate at the Convention envisaged a President with pretty much the same powers and duties as the Governor-General. A largely ceremonial figure, seen to be politically impartial and able to act as a constitutional umpire in the hopefully rare occasions when the reserve powers could be exercised; if not a quasi-judicial figure, at least one whose powers should be exercised judiciously.

Of course once you define the office in that way, it is apparent to anyone that direct election is an inappropriate mode of appointment. Direct election will give you a partisan, of that there can be no doubt. The successful candidate may pledge to act impartially and indeed may do so; but in our highly charged political culture does anyone imagine that Liberal partisans would believe a directly elected Labor President would always act without the faintest tinge of political bias. Of course not.

The direct electionists, as they came to be known, when faced with this observation met it in three ways:

• First they noted that the "people wanted it". And then ensued endless arguments about the reliability of quantitative polling.

• Second, they pointed to the experience of other countries and in particular Ireland where there is a directly elected President with powers and duties similar to that of our Governor General.

• Third they proposed a model which elegantly combined the worst features of almost all modes of appointment contemplated by the Convention.

The first argument, that based on popular sentiment, would logically lead you to supporting a US style system. After all it is a little odd to passionately invoke the right of the people to elect a by and large powerless figure head but at the same time deny them the right directly to elect the Prime Minister...who actually runs the country. Yet curiously only two delegates at the Convention supported a US system. As an alternative it had no support.

The second argument that based on Ireland was more persuasive. However it overlooked a fundamental difference between our Constitution and that of Ireland. The Irish President has, for all practical purposes, no significant independent discretion. Most importantly Ireland is a unitary state with a Senate with no power to frustrate the lower house.

We on the other hand have a federal system with a Senate that has equal power to the House of Representatives. It is most improbable any Government will control the Senate and so the potential for constitutional impasse is always there. Such an impasse can have an unpredictable course and the potential need for an umpire is obvious. Can a partisan discharge that duty to the satisfaction of the electorate?

An answer to that, of course, is to codify the procedures to be followed. We could abolish the right of the Senate to refuse money bills. That would be politically unachievable, as everyone acknowledged. On the other hand, we could as Sir Charles Court recommended twenty years ago, provide that if the Senate refused to pass an appropriation bill there would be an automatic double dissolution within a nominated period. That would be opposed by the Labor Party (and others perhaps) as entrenching or legitimising the Senate's power and thereby encouring it to use it more often.

Another alternative, which I had proposed in times past, was to provide that the President could not dismiss a Government for breach of the law (such as spending money which had not been lawfully appropriated) without the approval of the High Court. This too was regarded by the Labor Party as potentially legitimising the Senate's power.

The upshot of all this was that those who did not favour the Senate having the right to turn out the Government believed that the current, rather messy and uncertain state of affairs served a purpose. The less clear cut the consequences of blocking Supply, the more contentious the action, the more unpredictable the outcome the less likely the Senate was to exercise it. But equally, the more necessary was the impartial umpire. And that in a nutshell is why the Irish model was not persuasive.

The final direct election model was the worst of all. It involved the Parliament by a bi-partisan super majority choosing three candidates who would then be put to the people. Every Australian would have the right to vote for a Presidential candidate... but only if he or she was on the list approved by the politicians.