The third part of the 2011 George Winterton Lecture given by former High Court Chief Justice Sir Gerard Brennan. In Part 3, we see Sir Gerard advocate an electoral college as a good way to select the Australian President.
In the previous two sections, Sir Gerard explained why it is important for Australian to become a republic and defined the powers of a president.
[Read Part 1 of the speech: 'Why a Republic?']
[Read Part 2 of the speech: 'The Powers and Functions of an Australian President']
He finished part 2 by saying:
“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[i] or to remove a President, even with the concurrence of a majority of the House of Representatives.[ii] 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 incapacity[iii].
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[iv] “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’,[v] and John Howard has warned that it
‘would alter for all time the nature of our system of government. It would entrench rival centres of political power. … [A]n Australian president, having a popular mandate, would feel infinitely more powerful in dealing with an incumbent Prime Minister than would any Governor-General, irrespective of the formal powers which might be given to that president.[vi]’”
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.
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 Governors-General 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.
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.
Of course, that is not the only Electoral College model. A model suggested by the German and Indian Constitutions[vii] 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.
The Chief Justice could preside at College meetings[viii]. 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.
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.
[i] Bill for Constitution Alteration (Establishment of Republic) 1999, s 60 in Schedule 1.
[ii] Bill for Constitution Alteration (Establishment of Republic) 1999, s 62 in Schedule 1.
[iii] Analogously to the procedure for removing Federal judges under S 72(ii).
[iv] “The Resurrection of the Republic” Law and Policy Paper No 15 above n 54 p13.
[v] B Jones, ‘Framing a New Australian Republic’, paper presented at Australian Academy of the Humanities, 30th Anniversary Symposium, Canberra, 3 November 1999 (unpaginated).
[vi] 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.
[vii] 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.
[viii] 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.
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