Australian Constitutional Assembly: A bridge to an Australian Constitutional Republic

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A Constitutional Assembly that meets every five years to select the Governor General or President and discuss constitutional reform. Ross Garrad proposes a detailed roadmap for Australian constituional and democratic reform.

The current situation in our country’s evolution towards a Republic has been characterised as “the standoff on Constitution Avenue”. The political elite and many conservative Australians will not accept direct popular election of our Head of State. The majority of ordinary voters will accept nothing less, thinking that the 1999 proposal of bipartisan parliamentary appointment would give more power to politicians and not quite realising that in our current “politicians’ monarchy” the power to appoint our de facto Head of State is already vested in the Prime Minister. It should be obvious that, regardless of our personal preferences on this issue, some sort of “middle course” is the only way out of the mess.

The biggest roadblock on the road to a republic is the mindless, often toxic adversarialism of our party-political system, together with a monopolistic attitude that seeks to minimise inputs from civil society on constitutional issues. Among ordinary Australians, a majority of whom are supporters of a republic in some tenuous sense, the level of knowledge seems as low as ever, and the lessons of the past are being forgotten – or perhaps they were never learnt in the first place. The republic debate in the mainstream media, when it occurs, is usually characterised by ignorance and mindless antipathy.

The three alternatives for a republic. Yes, only three.

The dominance of primitive and superficial thinking is exemplified by the three options put to students at the Schools Constitutional Convention in Canberra in 2008, and again in 2011:

Model 1: A republic with the Queen and Governor-General being replaced by a President selected and appointed by the Prime Minister.
Model 2: A republic with the Queen and Governor-General being replaced by a President appointed by a two-thirds majority of the members of the Commonwealth Parliament.
Model 3: A republic with the Queen and Governor-General being replaced by a President elected directly by the electors of Australia.

Model 2 won a convincing victory on both occasions, as it was probably meant to do. After all, when a spectrum of options is constructed, consisting of two somewhat problematical “extremes” and one sensible, moderate choice in the middle, option 2 will always have a big advantage.

The only slight problem with the sensible, moderate Model 2 – in case anyone has forgotten – is that it was rejected by a significant margin in the 1999 referendum.  Not by the landslide portrayed in monarchist mythology, but by a margin of 11 to 9. That is, if in each group of 20 voters, one “No” voter had switched sides, it would have been 50/50. Perhaps this reality gives some hope to the “republican” politicians, whose monopolistic thinking fears any wider, more democratic input into the selection of our Head of State. Any such hope should be tempered by the knowledge that in a referendum, 50 per cent support is nowhere near enough to ensure success.

The truth is that the quasi-monarchical Model 2 is dead and buried, almost as much as its even more monarchical sibling, Model 1. After all, the main difference is the involvement of the alternative Prime Minister as well as the actual Prime Minister, in deciding whom they will impose upon their loyal subjects. If a genuine 3-option spectrum were being constructed, perhaps Model 2 would propose a President “elected by secret ballot, by the members of the Commonwealth Parliament”. The problem is that after being convinced by monarchist politicians that politicians cannot be trusted, most voters would find it difficult to distinguish this proposal from the 1999 so-called “politicians’ republic” proposal of bipartisan appointment.

A genuine “middle course”: a broadly-based electoral assembly

A far more interesting three-option spectrum was put forward in 2001, when former Deputy Prime Minister and Nationals leader Tim Fischer surprised many of his colleagues by declaring his republican sympathies, saying our Head of State should be chosen

“…either by Prime Minister, status quo; by middle course of an expanded electoral college, including elected mayors, state parliaments and federal parliament; or by a direct vote of the people”.

Reading between the lines of Tim Fischer’s particular three-option spectrum, it’s not difficult to discern his likely preference for the “middle course”.

There’s nothing particularly novel about this sort of “electoral college” proposal, and it’s hard to see why it has stayed generally under the radar during the republic debate. Even in the “Six Models” collection once put forward by the ARM, the electoral college proposal, called a “Presidential Assembly”, actually described a somewhat different body, which would have been elected by voters at a special election. Although this system has some important advantages, it raises the obvious question: “if we have to vote anyway, why not just vote directly for a President?” Or perhaps just as obviously: “If our elected representatives are going to do the choosing, why not just use the ones we’ve already got, instead of going to the expense of another election?” This logic leads straight to the other kind of electoral college, the one drawn from existing elected representatives, as used in some overseas republics. However, Tim Fischer’s inclusion of elected mayors begins to define a broader, more distinctively Australian approach, with the likelihood of a party-political contest or a backroom deal becoming smaller as the membership broadens.

Just one little plea: can we start calling this sort of institution an “electoral assembly”? It makes more sense than “electoral college”, and avoids confusion with the Electoral College used in US Presidential elections, which is quite a different beast and a much uglier one.

A broadly-based electoral assembly, consisting of a credible sample of our elected representatives from all levels of government, would probably be capable of gaining a greater degree of both political and community support than any other method. It would be an Australian system, not a transplanted foreign model, but those many Australians who seem to lack both imagination and self-confidence may be reassured by the somewhat similar ways in which Germany and India elect their Heads of State. This system would also be consistent with the recently-expressed views of the conservative republican jurist Sir Gerard Brennan, and other respected authorities.

Add a dash of deliberative democracy...

There would be an obvious avenue for popular input into the decision-making processes of the electoral assembly: citizens could contact their representatives to express their opinions regarding the candidates for Head of State. This logic is dangerous, and should be discouraged. While participating in the Assembly, its members should be expected to listen, to investigate, to discuss, and to gather the information necessary to make a considered decision. They should not be subjected to populist pressures that in reality would stem from the corrosive power wielded by huge media organisations, with their irresistible urge to turn any such democratic choice into a media beauty contest. This is, of course, an important argument against direct election — perhaps the most valid argument there is.

A much more appropriate type of citizen input would be to look at the principles of “deliberative democracy” and include a number of randomly-chosen voters in the Assembly. Such strategies are well-established in some overseas jurisdictions, where they attempt to ensure that “the authentic voice of the people” can be heard, and facts and opinions considered carefully, in a context not unlike the operation of a courtroom jury — hence the alternative title of “citizens’ jury”.

From electoral assembly to constitutional assembly

An electoral assembly of this kind, meeting once every five years, could also act as a forum for discussion of constitutional reform, particularly of issues pertaining to the roles and powers of the different spheres of government in our rickety federal system. After all, it seems rather wasteful to gather all these people in Canberra from the far corners of our continent and give them the relatively quick and simple job of choosing the Head of State, when there is a vital job crying out to be done: discussing the big constitutional issues that will determine the kind of country our children and grandchildren will live in. The functions of the Australian Constitutional Assembly would therefore be:

  1. To select a distinguished Australian for appointment to the position of Head of State;

  2. To make recommendations to the Parliament and the Nation regarding constitutional reform.

  3. One specific way of constituting the Australian Constitutional Assembly

    When you get down to the basic details, there are zillions of ways a body such as this could be constituted. Here’s one, just to provide a concrete example, and perhaps as a discussion-starter:

    The Assembly will consist of five groups of members, of equal size:

    Group 1: Representatives of the House of Representatives, elected by proportional voting;
    Group 2: Representatives of the Senate, elected by proportional voting;
    Group 3: Representatives of State and Territory Parliaments, elected by proportional voting, from both houses of parliament together in the case of a bicameral legislature;
    Group 4: Representatives of local governments, chosen by the Premiers and Chief Ministers from nominations by local governments, with the proviso that if a State or Territory has more than one local government representative, the Mayor of its largest local government (by population) must be chosen.
    Group 5: Citizen Representatives, randomly chosen by the Electoral Commission from State and Territory lists of enrolled voters who have advised the Commission that they are willing to serve.

    The representation of each State or Territory in groups 3, 4 and 5 is obtained by dividing the population (at the beginning of the relevant year) by one million, with the resulting number rounded up to the next highest integer if less than 4, or rounded to the nearest integer if greater than 4.
    (For 2011, the breakdown would be: NSW 7; Vic 6; Qld 5; WA 3; SA 2; Tas 1; ACT 1; NT 1.
    Total 26 in each group; Total size of Assembly 130)

    The agenda and processes of the Assembly should be decided by resolution of the Assembly, subject to a small number of constitutional or legislative provisions aimed at reducing the potential for an outcome “managed” by the party power-brokers. For example, voting in the Assembly for the Governor-General/President should be by secret ballot, and nominations should be signed by at least 100 enrolled voters.

    An Australian Constitutional Assembly before we get to the Republic?

    If a Constitutional Assembly could do a credible, democratic, inexpensive job of choosing the Head of State in our future constitutional republic, why couldn’t it do just as well in choosing the de facto Head of State in our current constitutional monarchy? Do Australians really want either Julia Gillard or Tony Abbott to choose our next Governor-General, with nobody else getting a look in? Surely our “constitutional umpire” should represent the nation as a whole, not just the government. But monarchist politicians who were screaming about the “politicians’ republic” that would supposedly result from bipartisan appointment of our Head of State, seem to have no problem with “mono-partisan” appointment of our de facto Head of State, the Governor-General. If they were pressed on this point, they would probably give an opaque explanation about the existence of the Monarch making all the difference. Such arguments belong to the realm of superstition, not political science or constitutional law.

    Our current Governor-General seems to be well-respected in the Australian community and this respect extends to the “party line” expressed by politicians from all sides. But just under the surface, animosity and contempt can easily be found. It is very likely that the politicians who are most vociferous about the virtues of Prime Ministerial appointment of the Governor-General are also the ones who are least happy with its result, embodied in this particular Labor appointee.

    If the partisans on both sides of politics, and both sides of the republic/monarchy divide, were willing to start contemplating safe, step-by-step, progress towards greater Australian independence and sovereignty in a more sustainable system of government, the concept of an Australian Constitutional Assembly as an evolutionary, unifying, “bridge” from our monarchist present to our republican future would make a lot of sense. Under our current monarchical system, its function would be to recommend an appointment as Governor-General, not to make a binding decision. In practice, it is inconceivable that the Prime Minister – and then the Monarch, who in constitutional theory makes the actual appointment – would ignore such a recommendation.

    We’re ready…we don’t have to wait

    We don’t have to wait until our country separates from the monarchy, to start reforming the dysfunctional and demeaning aspects of our Head of State arrangements. And we don’t have to wait until the end of the Queen’s reign, to take the vital step of a referendum to end our subservience to the British monarchy. Prime Minister Julia Gillard has said that Australia won’t become a republic until the Queen dies or abdicates. This isn’t logical, but it may well be true. However, former Prime Minister Bob Hawke is one of those who have proposed a “middle course” in the process of breaking our ties to the monarchy:

    “You make it a uniting issue by putting the proposal in these terms: `Are you in favour of Australia becoming a republic if it comes into effect at the end of the reign of the present monarch?' I believe if you did it that way, you'd get a 95 per cent vote and that would be a bloody good thing."

    Well, that might be just a trifle optimistic, and the devil is still in the constitutional detail. But if we are to achieve an Australian Head of State at the end of the Queen’s reign, and not at some indeterminate point thereafter, we need to have a referendum as soon as possible, to ensure an automatic, orderly, respectful transition when the time comes. Bob Hawke’s vision of the automatic succession of an Australian at the end of the Queen’s reign, combined with the most democratic version of Tim Fischer’s “middle course” for selection of our Head of State, could give us the convincing referendum majority we need if Australia is to meet the challenges of the21st century as a strong and united country.  
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