Bills Digest No. 33 1999-2000 Presidential Nominations Committee Bill 1999

Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Appendix A
Contact Officer & Copyright Details

Passage History

Presidential Nominations Committee Bill 1999

Date Introduced: 10 June 1999

House: House of Representatives

Portfolio: Attorney-General

Commencement: On Royal Assent

Purpose

To provide for the selection of a Presidential Nominations Committee, and for this Committee to examine public nominations of candidates for President and report to the Prime Minister on nominations received.

Background

Basis of policy commitment and timetabling issues

The Prime Minister agreed during the 1996 election campaign that he would provide for a Constitutional Convention to be held, and, depending on the outcome of the Convention, would put a question to the Australian people regarding a possible move to a republic. The Constitutional Convention was held in February 1998, and recommended that a referendum be held to consider changes to the Constitution according to the model of a republic adopted by the Convention, i.e. the 'bipartisan appointment of the president model'.

The 6 November 1999 is the day which has been nominated by the Government as the date for this referendum regarding Australia's possible transition to a republic.(1) The Government has said that there will be two questions put to the electors: one on the proposal for a republic, which will follow the preferred model which emerged from the 1998 Constitutional Convention; and one on a new preamble for the Constitution. The Presidential Nominations Committee Bill 1999 represents, as part of a package with its Constitution altering companion [the Constitution Alteration (Establishment of Republic) 1999 Bill - the Republic Bill], the Government's legislative representation of the 'bipartisan appointment of the president model' endorsed at the 1998 Constitutional Convention. The Government proposes to ensure passage of this Bill once the outcome of the referendum is known.(2)

The Presidential Nominations Committee Bill 1999 does not actually propose any Constitutional changes. It would simply provide an elaborated mechanism by which certain changes to the Constitutional process would be implemented, i.e. the selection of a President. It is a Bill which would not be entrenched in the way that Constitutional provisions are. This means it could be amended in a relatively simple manner by a subsequent Parliament - it would not face the hurdles which slow Constitutional change.

The two Bills were released in draft form on 9 March 1999 for public consultation. On 10 June the two Bills were introduced into the House of Representatives and were examined by a Joint Select Committee which reported to the Parliament on 9 August 1999.(3)

The Attorney-General explained that the tight time line for the Joint Select Committee's consideration of the two Bills was necessary so that the referendum could be conducted on 6 November 1999, the Government's preferred date. In order to meet this deadline the referendum legislation needed to be finalised by 20 August 1999 'at the very latest.'

The Republic Bill passed both Houses of Parliament on 12 August 1999, as did the Constitution Alteration (Preamble) 1999.

Joint Select Committee on the Republic Referendum

The Joint Select Committee on the Republic Referendum was established in May 1999. Its terms of reference were to examine the Constitution Alteration (Establishment of Republic) 1999 and the Presidential Nominations Committee Bill 1999.(5)

The Committee considered evidence on the subject of diversity in Prime Ministerial appointment of community members to the Presidential Nominations Committee. The Referendum Taskforce said in its submission to the Joint Select Committee that a legislative requirement that the Prime Minister take account of matters such as age, gender, cultural background or place of residence was unnecessary. The Taskforce pointed to the diversity of representation in the non-Parliamentary delegates appointed by the Prime Minister to the 1998 Constitutional Convention. On the other hand, some witnesses before the Joint Select Committee suggested that there should be a specified number of Indigenous members on the Nominations Committee or a specific number of women on the Committee.

The Joint Select Committee recommended that:

A further recommendation made by the Joint Select Committee related to the Prime Minister's ability to reject the Nominations Committee's short list for President. The Committee's report recommended that, should the Prime Ministers nominate as President a person whose name does to appear in the short list, then the Prime Minister should be required to:

The Joint Select Committee also drew attention to proposed section 20 of the Presidential Nominations Committee Bill. Proposed section 20 requires that a nomination submitted to the Nominations Committee must be accompanied by a statement that the person is qualified to be chosen as President. The Joint Select Committee concluded that the proposed section should be amended to provide that a person who is not qualified at the time of nomination must give an undertaking that he or she will take the necessary steps to become qualified if chosen as President. The Joint Select Committee was concerned that proposed section 20 would deter people such as '... teachers, nurses, police officers, judges and other public servants from allowing their name to go forward.'(8)

Not all members of the Joint Select Committee agreed with all of the Committee's recommendations. Thus, the dissenting report of Senator Ron Boswell disagreed that the Prime Minister should have to table a statement of reasons for rejecting the Nominations Committee short list. In Senator Boswell's view the proposed amendment is unnecessary, especially because the need to secure the Opposition Leader's support for the nomination will help to ensure that the nominee has bipartisan support. Senator Boswell also suggested that a statement of reasons would automatically accompany any Prime Ministerial nomination for the office of President.(9)

Further Reading

It is beyond the scope of this Digest to rehearse the many arguments for and against Australia becoming a republic, and the many arguments for and against the bipartisan appointment of the President in a future Australian republic. These debates have been explored at length both during the Constitutional Convention(10) and in many scholarly and popular publications.(11) In particular the Department of the Parliamentary Library has published a range of materials addressing these questions, including:

Carolyne Hide, Karen Davis and Ian Ireland, 'The Recent Republic Debate-A Chronology 1989-1998', IRS Background Paper No.11 1997-98, 2 February 1998

Anne Twomey and Rosemary Bell, 'Methods of Choosing a Head of State', IRS Background Paper No.12 1997-98, 23 January 1998

George Williams, 'The 1998 Constitution Convention - First Impressions', IRS Current Issues Brief No.11 1997-98, 23 March 1998

Ian Ireland and Kirsty Magarey, 'Powers of the Head of State of Australia and South Africa', IRS Research Note No. 24 1997-98, 23 January 1998

Ian Ireland and Joanna Longley, 'Dismissing a President', IRS Research Note No. 8 1998-99, 24 November 1997

Mark McKenna, 'The Need for a new Preamble to the Australian Constitution and/or a Bill of Rights', IRS Research Paper No.12 1996-97, 18 March 1997

Susan Downing, 'The Reserve Powers of the Governor-General' IRS Research Note No. 25 1997-98, 23 January 1998

The Constitution Papers, PRS Subject Collection No. 7, 1996-97

Ian Ireland 'Monarchy or Republic? A Comparative outline of Major Presidential Powers' Background Paper No. 18, 1993-94, 30 July 1993

Further background to this Bill and its companion are also contained in Bills Digest No. 207 of 1998-99 (the Constitution Alteration (Establishment of Republic) 1999 Bills Digest). Background to the Constitution Alteration (Preamble) 1999 is found in Bills Digest No. 32 of 1999-2000.

Main Provisions

Proposed Part 2 of the Bill provides for the establishment and functioning of a Presidential Nominations Committee. Proposed section 4 provides that the Committee is to be established when there is a need for one, and ceases to exist when the incoming President's term of office begins. Proposed section 5 delineates the powers and functions of the Committee, which are very specific. The powers are to invite and consider nominations for President and to report to the Prime Minister on the nominations. The Committee is to determine its own procedures under proposed section 7 and questions are to be decided by a vote, with the Convenor having a casting vote under proposed section 6. The Prime Minister is to appoint the Convenor, who can be any member of the Committee (proposed section 12).

Proposed Part 3 of the Bill provides for the Membership of the Committee, which is to be quite large - 32 members. Under proposed section 8 the Prime Minister is to appoint:

• 8 members from the Commonwealth Parliament;
• 8 members, each from one of the State and mainland Territory Parliaments; and
• 16 community members.

Proposed sections 9, 10 and 11 deal with the appointment of these three sets of committee members.

Proposed section 9 provides for the appointment to the Committee of Commonwealth Parliamentary members. The proposed section provides that the basis for selection is to be party political. Proposed subsection 2 stipulates that only political parties with more than five members of Parliament are entitled to have members selected for Committee membership. The process of selection is that, in descending order, according to the size of the current representation in the Parliament, each party with more than five members is allocated a place. This process of allocation is repeated if there are fewer than 8 parties which fit the requirement, i.e. fewer than 8 parties with more than 5 members. However the second time around, and in subsequent rounds, the parties to be allocated places must have more than 15 members. If there is a tie between parties with similar numbers of representatives the place is to be allocated by ballot (proposed subsection 5). The Prime Minister's appointments to the Committee must follow the nomination of the parliamentary leader of the party (proposed subsection 6).

To provide an example of how this process would work, under the current parliamentary representation the distribution would go as follows:

Australian Labor Party: 1 member

Liberal Party: 1 member

National Party: 1 member

Australian Democrats: 1 member

Australian Labor Party: 1 member

Liberal Party: 1 member

National Party: 1 member

Australian Labor Party: 1 member

This order would follow because no party outside the four mentioned in the first round of distribution has more than five members, and the Australian Democrats, having fewer than fifteen members, would not be allocated a place in the second round of distribution.(12)

The appointment of the State and mainland Territory members is straightforward. Each of the Parliaments of the States, the ACT and the NT are to nominate a member who must be appointed by the Prime Minister (proposed section 10).

The Prime Minister is to allocate the 16 positions of 'community member' to anyone s/he chooses, provided they are not members of Parliament, either Federal or State/Territory (proposed section 11).

Proposed sections 13-17 provide further details regarding membership and its terms and conditions. Members are to hold office on a part-time basis and are to be paid the allowances prescribed, with community members being paid remuneration as determined by the Remuneration Tribunal (or, in the absence of a determination, the prescribed allowance). They may resign in writing, and their membership of the Committee is terminated if they are nominated for the position of President (a nomination is only effective if the nominee has given their consent [proposed subsection 20(a)].

Proposed section 16 leaves it to the Prime Minister's discretion whether s/he appoints a replacement member should a vacancy occur, however if the Prime Minister is to replace a member s/he must do so according to the formula in the proposed Act, which stipulates that a replacement Committee member for a Commonwealth Parliamentary member must be the one nominated by the appropriate party's leader, while a State or mainland Territory must be the member of the relevant Parliament nominated by the head of that State or Territory. Should the Prime Minister not appoint a replacement the legality of the Committee's functioning will not be impaired, although the minimum number for the Committee is set at 16, with at least 8 being community members (proposed section 17).

Proposed Part 4 deals with the nomination process. Any Australian citizen can nominate a person in response to the Committee's invitations for nomination (proposed sections 18 & 19). Under proposed section 20 the nomination must be in writing and the nominee's written consent must accompany such a nomination, as well as a written statement in support of the nomination, which must include a statement indicating whether the individual is qualified to be President. The sections dealing with the President's qualifications are not dealt with in this Bill but would be contained in the Constitution, should the Constitution Alteration (Establishment of Republic) 1999 be supported through the referendum. They include that the person should be qualified and capable of being chosen as a member of the House of Representatives, and must not be a member of an Australian parliament or a member of a political party (proposed section 60 of the Constitution, as it would be altered by item 3, Schedule 1 of the Constitution Alteration (Establishment of Republic) 1999). Either the person nominated or the people nominating may, in writing, withdraw the nomination (proposed section 21).

The Committee is required to give the Prime Minister a written report on the nominations, which is to include a short list of nominees. In coming to this short list the proposed legislation requires the Committee to consider both the diversity of the Australian community and the capacity of candidates to 'command the respect and support of the Australian community' (proposed section 22). The Committee is also able to consider other matters and any materials it considers appropriate, however the Committee is expressly exempted from any requirement to give people an opportunity to be heard.

There are some strongly worded provisions in proposed Part 5 which are designed to protect the confidentiality of the work of the Committee in considering nominations. Members of the Committee and staff assisting the Committee are enjoined from making records of, or disclosing the identity of nominees, and also from disclosing information, or making records of information, that might tend to identify the nominees (other than in the course of their work, proposed section 24). This prohibition also applies to nominations that are withdrawn, and continues to apply after the incoming President has been appointed [proposed subsections 24(1)(a)&(b)]. Nominees can give their consent to the recording or disclosure of such information [proposed subsection 24(2)]. The only circumstances under which a report by the Committee can be required to be produced to a Court is if the proceedings in the Court are about whether there has been a contravention of the proposed Act (proposed section 25). The Prime Minister is not subject to the statutory prohibition on revealing nominations. Interestingly there are no penalty provisions attached to a breach of proposed section 24, although the Explanatory Memorandum comments that the 'general law' would apply, including the Crimes Act 1914 and the Privacy Act 1984.

Proposed Part 6 deals with administrative matters, such as providing for staff for the Committee to come from the Australian Public Service and/or Commonwealth authorities, indemnifying these staff in the performance of their duties, and allowing for the making of regulations under the proposed Act.

Concluding Comments

To the extent that this Bill will not result in constitutionally entrenched provisions it is arguably less crucial than its companion Bill (see above). However the provisions it makes for the selection of the President are the subject of some of the most strenuous debates in the pro-republican side of politics. The question of whether the President's selection should be by direct election or by appointment by the Prime Minister has been the subject of strong dissension within the ranks of the republicans.(13)

This Bill represents some further refinements on the process of appointment by Parliamentarians by allowing for public nominations. However, it does not alter the principle that, under the model being created by this legislative package, it is for the Prime Minister and a two thirds majority of the Parliament to appoint the President. While the Prime Minister is constitutionally required to consider the report of the Nominations Committee, s/he is not required to implement it and could choose, with the consent of the Leader of the Opposition, to nominate someone not on the Committee's short list.

While the Bill follows the recommendations of the Constitutional Convention closely (see Appendix A) there is a notable departure. The Convention recommended that the Committee's membership should 'take into account so far as practicable considerations of federalism, gender, age and cultural diversity.' However, the Bill gives the Prime Minister an unfettered discretion to appoint community members. In direct contrast to the provisions dealing with the Committee's considerations of nominees, (the Bill requires the Committee to attend to issues of diversity and respect when preparing its short list) the Prime Minister's role in appointing community members is not the subject of statutory admonitions to take into account issues of diversity. The decision not to include in the Bill any guidelines the Prime Minister should consider when appointing community members indicates that it is unlikely these criteria of federalism, gender, age and cultural diversity will be given direct legislative protection.

Another area of concern with the Bill is its approach to the confidentiality issue. These provisions stem from the Constitutional Conventions rather abruptly stated intention that '[t]he Committee should not disclose any nomination without the consent of the nominee.' The benefits and difficulties of attempting to keep nominations confidential and, presumably, discouraging public discussion of nominations is a delicately balanced problem at the time of the nomination process. A potential difficulty with the provisions of the Bill regarding confidentiality is that they are so broad they would seem to overturn the provisions of the Archives Act 1983, under which general Commonwealth records pass into the open access period after 30 years, while Cabinet notebooks pass into the open access period after 50 years. The prohibition in the Bill on the revelation of nominations is simply stated to continue on after the appointment of a President - there is no time-limit. The policy considerations for maintaining the secrecy of nominations into an unending future would seem less weighty than those favouring the maintenance of secrecy during the consideration of nominations and for some reasonable period after the appointment of a new President, although the balance of argument may still favour such an open ended secrecy provision.

Endnotes

2. 'Draft legislation for a referendum on an Australian republic' Joint Press Release, Attorney-General, The Hon. Daryl Williams AM, QC, MP, Special Minister of State and Senator the Hon. Chris Ellison, 9 March 1999.

3. House of Representatives, Hansard, 10 June 1999, p. 5269.

4. 'Establishment of a joint select committee on the republic legislation' Joint Press Release, Attorney-General, The Hon. Daryl Williams AM, QC, MP, Special Minister of State and Senator the Hon. Chris Ellison, 26 May 1999. See also Joint Select Committee on the Republic Referendum, Advisory Report on: Constitution Alteration (Establishment of Republic) 1999 and Presidential Nominations Committee Bill 1999, Canberra, August 1999.

5. House of Representatives, Hansard, 31 May 1999, pp. 4516-4517.

6. The Constitution Alteration (Preamble) 1999 was not introduced into the Parliament until after the Joint Select committee reported on 9 August 1999.

7. Advisory report on Constitution Alteration (Establishment of Republic) 1999 and Presidential Nominations Committee Bill 1999, Joint Select Committee on the Republic Referendum, August 1999, Canberra, p. 18.

8. Ibid, p. 34.

9. Ibid, see p. 33. Item 18 of Schedule 2 of the Republic Bill effectively prevents persons holding an office of profit under the Executive Government of the Commonwealth, a State or a Territory from nominating as President.

10. For a statement of Senator Boswell's reasons for disagreement, see p. 117.

11. Report of the Constitutional Convention, Old Parliament House, 2-13 February 1998, volumes 1-4, 1998.

12. See for instance, articles collected in the thematic issue of the University of New South Wales Law Journal: 'The 1998 Constitutional Convention: an Experiment in Popular Reform'; Steve Vizard, Two Weeks in Lilliput, Bear-baiting and Backbiting at the Constitutional Convention, Penguin 1998; papers given at a seminar, Australian National University 'The Republic: what next?', 11 May 1998; articles in Reform, Issue 74, 1999; articles in the Australian National Review; vol 2(9), March 1998 and vol 3(7), December 1998 and articles in the Public Law Review, vol 10 (1999).

13. Currently the Commonwealth Parliament, in a party breakdown, has the following distribution of members: House of Representatives: Australian Labor Party 67; Independent 1; Liberal Party of Australia 64; National Party of Australia 16 (total 148), Senate: Australian Democrats 9; Australian Greens 1; Australian Labor Party 29; Independent 1; Liberal Party of Australia 31; National Party of Australia /Country Liberal Party 4 and Pauline Hanson's One Nation 1 (total 76).

14. This issue is dealt with in more detail in 'The Republic and popular involvement in presidential nomination', Adrienne Stone, Reform, Issue 74, 1999, p. 45. It is interesting to note that there were significant divergences between the Bill as introduced and the suggestions made by Sir Anthony Mason and a group of 'republican academics' in the open letter to the Attorney-General in December 1998. The letter and its proposals are discussed in this article.

Appendix A

THE COMMUNIQUE

The Bipartisan Appointment of the President Model.

Nomination Procedure

Contact Officer and Copyright Details

Kirsty Magarey and Jennifer Norberry
6 October 1999
Bills Digest Service
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