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«The Hon Sir Gerard Brennan AC KBE, formerly Chief Justice of Australia. 17 February 2011 1. I acknowledge the Gadigal people of the Eora nation on ...»

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“If the conventions are not enforceable by the courts, the President might ignore them, even though the Constitution stated that they continued; all those considerations which obliged a Governor-General as representative of the Monarch to observe the conventions, would not exist in the case of a President. On the other hand, if the courts can enforce observance of the conventions, the resulting delay and uncertainty could be very damaging in a time of crisis.” An exercise of a reserve power would ordinarily be required in a situation of urgency (and therefore without judicial intervention) in the event of any breach of the rule of law by the Executive Government – say, by withdrawing funds from consolidated revenue without an appropriation – or any breakdown in the operation of representative and responsible government – say, by a Prime Minister The King and His Dominion Governors (London, Frank Cass and Co, 2nd ed 1967), 7-9, 285.

Report Vol 1 pp 95 ff.

Evatt and Forcey on the Reserve Powers (Sydney, Legal Books, 1990) p lxxxiii.

“Some Thoughts on the Constitutional Convention” (1998) 21(3) UNSW Law Journal 882, 884.

who, defeated in a no confidence vote of the House of Representatives, refused to resign or advise an election.

28.The problem is not to define the powers which a President may exercise, but the circumstances in which a reserve power may be exercised. It is difficult – indeed, impossible – to define in advance every eventuality which may attract an exercise of a particular power. Professor Forsey observed that the circumstances in which the reserve powers need to be exercised “are not easy to set out in detail, comprehensively and with precision. They have a disconcerting way of popping up in utterly unforeseen, even unforeseeable, guise” 52. The reason why the content of conventions is uncertain and fluctuating is that “[c]onventions are political, not legal: political in their birth, political in their growth and decay, political in their death, political in their sanctions.” 53 They are valuable indicia of political situations in which the exercise of reserve power may be needed, but they cannot be exhaustive.

Codification of some conventions would be acceptable if the conventions are both clearly established and their application would not be reasonably open to factual controversy that might delay and frustrate the exercise of a reserve power 54. But codification cannot Evatt and Forsey on the Reserve Powers, above n 50, p.lxxxiii; Professor Forsey recalled that in 1985 “an Australian Constitutional Convention [in Brisbane] recognized and declared 18 ‘principles and practices’ which ‘should be observed as Conventions in Australia’ governing the exercise of reserve powers ‘exerciseable through the Governor-General’” but then demonstrated their inadequacy in a number of practical situations.

Ibid, p lxxxix.

See G Winterton “The Resurrection of the Republic” Law and Policy Paper No. 15 (Sydney, Federation Press, 2001) p 17.

exhaust all the circumstances in which a reserve power might justifiably be exercised.

29.George Winterton, conscious of the need for extraordinary circumstances to justify an exercise of reserve power, stated a criterion in general terms: is the exercise “absolutely necessary to preserve the rule of law and protect the operation of responsible government from abuse by the executive” 55? Similar terms were used by the Executive Government Advisory Committee 56 to the Constitutional Commission – their formula being “that there is no other method available to prevent”.

30.A President must have authority to exercise the reserve powers flexibly and efficiently in the political milieu 57, but only when an exercise is absolutely necessary. The open textured phrase “absolutely necessary” itself needs some mechanism for supervising its application to concrete political situations. That is why I suggest the need for a small council – a Constitutional Council to review any proposed exercise of a reserve power. The Council would determine whether the President has reasonable grounds to believe that it is absolutely necessary to exercise the reserve power proposed in order to ensure compliance with the general law or the effective operation G. Winterton (1993) 12 U Tas LR 249 at 256; The Resurrection of the Republic, above n 54.

Final Report of the Constitutional Commission, vol 1, p 326 para5.66.

The Canadians experience of prorogation in 2008-2009 illustrates both the importance of timing in the exercise of reserve power and the difficulty in reaching agreement on the content of relevant conventions: see http://findarticles.com/p/articles/mi_qa3683/is_201004/ai_n54369026/?tag=content;col1. For an Australian example, see G Winterton “The Constitutional Position of Australian State Governors” in Australian Constitutional Perspectives (Sydney, Law Book Co., 1992) 274, 304-335.

of representative and responsible government under the Constitution. The Council must be capable of speedy consultation and be constituted by persons whose competence and impartiality are not open to question. It would be composed of three members who have previously served as Governor-General or President or as Chief Justice or a Justice of the High Court or as Chief Justice of a State or a federal superior Court. Any exercise by a President of a reserve power, if approved by the Constitutional Council, would be conclusively valid and non-justiciable. Decisions by the Constitutional Council would be non-justiciable. Judicial intervention would be eliminated except in the highly unlikely event of an exercise of a reserve power which the Constitutional Council would not approve. A negative response by the Constitutional Council would warrant judicial intervention to consider whether the President had acted beyond power.

31.If a republican President is to exercise the same powers and functions as the Governor-General now exercises and is constitutionally constrained to exercise those powers and functions in like manner, the method of selecting a President becomes a secondary question.

The Selection of a President A Prime Minister’s ability to secure the appointment or removal of a Governor General disappears with a transition to a Republic. And the defeat of the 1999 Referendum shows that the electorate will not allow a Prime Minister to appoint a President, even with the concurrence of the Leader of the Opposition and a majority of the Parliament 58 or to remove a President, even with the concurrence of a majority of the House of Representatives. 59 A President, as Head of State, vested with the powers we have discussed but constitutionally controlled in their exercise, should have a secure tenure for a fixed term, say, 5 years. The President should be removed from office only by vote of both Houses of Parliament on the ground of proved misbehaviour or incapacity60.

32.In the public mind, the preferable method of selecting a President is direct election. In 1999, republicans who were opposed to direct election feared that a directly elected President would be a threat to the stability of our representative and responsible system of government. George Winterton explained 61– “that a directly elected President will challenge government policy in speeches, perhaps addresses on television, and by meeting foreign and domestic leaders both at home and abroad, leaving both the Australian people and foreign governments confused regarding government policy, destabilising government, and jeopardising the political neutrality of the presidency. Barry Jones graphically described such a system as ‘a car with two steering wheels’, 62 and John Howard has warned that it

–  –  –

Bill for Constitution Alteration (Establishment of Republic) 1999, s 60 in Schedule 1.

Bill for Constitution Alteration (Establishment of Republic) 1999, s 62 in Schedule 1.

Analogously to the procedure for removing Federal judges under S 72(ii).

“The Resurrection of the Republic” Law and Policy Paper No 15 above n 54 p13.

B Jones, ‘Framing a New Australian Republic’, paper presented at Australian Academy of the Humanities, 30th Anniversary Symposium, Canberra, 3 November 1999 (unpaginated).

any Governor-General, irrespective of the formal powers which might be given to that president. 63’”

33.These concerns would be diminished by constitutional constraints on the exercise of Presidential powers. Even so, direct election raises some difficult practical issues. How would candidates get to know, and get known by, voters in every part of the Commonwealth?

Would voters in the more populous States prefer local candidates to the prejudice of candidates from smaller States? Could any citizen nominate a candidate, or would the power of nomination be limited?

Curiously, a preference for direct election over Parliamentary appointment was said to avoid the creation of a “politicians’ President” but an Australia-wide election campaign for the Presidency would inevitably be funded and managed by party political machinery.

34.Another consequence of direct election would be the virtual impossibility of selecting eminent, non-political citizens as candidates for the Presidency. If we bear in mind recent GovernorsGeneral who have served with distinction in that office after achieving eminence in a non-political field – Sir Zelman Cowen, Sir Ninian Stephen, Sir William Deane, for example – we must doubt whether they would have engaged in an electoral campaign for the office. Popular election is designed to secure suitable candidates to implement policies, but that is not the business of an apolitical Head of State.

J Howard, ‘Mr Keating’s Mirage on the Hill: How the Republic, Like the Cheshire Cat, Came and Went’, in Upholding the Australian Constitution, Vol 3: Proceedings of the Third Conference of The Samuel Griffith Society (1994) 115 at 130-131.

35.Although these are some of the disadvantages of direct election, they could be largely eliminated and the strong democratic desire for direct election could be accommodated by an Electoral College

system which is a feature of other geographically large democracies:

Germany, India and the United States. An Electoral College of modest size, popularly elected, could efficiently nominate and select a President. The College might be composed of two or four members chosen directly by the people of each State and one or two members chosen directly by the people of each mainland Territory.

Members of Parliament could be excluded. An Electoral College could be elected in parallel with a general election for the House of Representatives. The Chief Justice of the High Court might be an ex officio member and chairperson of the College, responsible for convening the members and notifying the selection of the President.

36.Of course, that is not the only Electoral College model. A model suggested by the German and Indian Constitutions 64 would engage the members of both Houses of the Parliament sitting together with nominees of the State and Territory Parliaments. Although that model would be dominated by politicians, they would have been popularly elected to both the Parliament and the Electoral College.

Article 54 of the Constitution of the Federal Republic of Germany; Sections 54 and 55 of the Indian Constitution. Both of these Constitutions added votes from the Legislatures of the Lander or the States to the votes of the members of the national Parliament. See also Cheryl Saunders “Beyond Minimalism” in Sarah Murray (ed), Constitutional Perspectives on an Australian Republic (Sydney, The Federation Press, 2010) 54, 77.

The Chief Justice could preside at College meetings 65. A majority, say, 70% of those present and voting, could be specified to ensure that the government of the day did not control the process. As Parliamentarians generally are knowledgeable about and responsive to the views of their constituents and as the majorities in the two Houses of Parliament are not always, or usually, of the same political party, selections made by an Electoral College so constituted might well accord with popular expectations.

37. Whatever the composition of an Electoral College, its procedure

could be prescribed by law susceptible to amendment in the light of experience. If desired, it could sit in camera. Unless we choose to have a nation-wide contest among public figures, managed and funded by political parties, there seems to be no practical way other than an Electoral College of giving effect to the popular vote.

The Monarchy and the States

38.There would be some support for the proposition that each State should determine for itself whether it wishes to adopt a republican form of government 66. This was proposed by George Winterton67 It is customary now for the Chief Justice of the High Court to preside over the swearing in of the Members of the House of Representatives after an election.

Gerard Carney, The Constitutional Systems of the Australian States and Territories (Melbourne, Cambridge University Press 2006) p 339; Anne Twomey: “One In, All In – The Simultaneous Implication of a Republic at Commonwealth and State Levels” in Sarah Murray (ed) Constitutional Perspectives on an Australian Republic ( Sydney, Federation Press, 2010) 20, 38, 40.

Monarchy to Republic: Australian Republican Government (Melbourne,OUP,1986), pp 103-105.

–  –  –

40. The States derive their constitutional status and powers from the Commonwealth Constitution 74 and from the Australia Act See Janine Pritchard “Monarchical States under a Commonwealth Republic” in Sarah Murray (ed) Constitutional Perspectives on an Australian Republic (Sydney, Federation Press, 2010) 106, 107.

Anne Twomey:“One In, All In...”, above n 66, 24.

As provided for in s 15(1) and (2) of the Australia Act.

The several Acts were entitled the Australia Act (Request) Act 1999, and were intended to add to s 7 of both the UK and Commonwealth versions of the Australia Act subsections authorizing the State Legislature to exclude the operation of the earlier subsections of s 7. See, for example, Act No 33 of 1999 (Vic.).

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