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COMMONWEALTH OF AUSTRALIA
Proof Committee Hansard
LEGAL AND CONSTITUTIONAL REFERENCES COMMITTEE
Reference: Inquiry into an Australian Republic
TUESDAY, 13 APRIL 2004
SYDNEYCONDITIONS OF DISTRIBUTION: This is an uncorrected proof of evidence taken before the committee.
It is made available under the condition that it is recognised as such.
BY AUTHORITY OF THE SENATE
Members: Senator Bolkus (Chair), Senator Payne (Deputy Chair), Senators Buckland, Greig, Kirk and Scullion
Senators in attendance: Senators Bolkus, Buckland, Kirk and Payne
Terms of reference for the inquiry: To inquire into and report on: (a) the most appropriate process for moving towards the establishment of an Australian republic with an Australian Head of State; (b) alternative models for an Australian republic, with specific reference to: (i) the functions and powers of the Head of State; (ii) the method of selection and removal of the Head of State; and (iii) the relationship of the Head of State with the executive, the parliament and the judiciary.
[10.00 a.m.] LATIMER, Mr David Richard Peter, (Private capacity)
CHAIR -- Welcome. You have lodged submission No. 519 with the committee. Do you wish to make any amendments or alterations to it, or would you like to start off with an opening statement?
Mr Latimer -- I would like to make an amendment, but only a minor one, on page 9 at paragraph 5. The first line says represent not the. It should really read represent not just the, and that changes the meaning. On page 55 there is a mistake in a diagram. The diagram on the legend reads national electorate B. It is marked as a dotted line but it really should be a solid line. I think most people would have been able to work it out. I have set the record straight.
CHAIR -- Thank you. Do you have an opening statement?
Mr Latimer -- Thank you, Chair, and thank you, Senators, for reading my submission and giving me the opportunity to give evidence today. Over the weekend, I prepared a one-page summary of the model I will be presenting. I believe the committee already has a copy of that. There is also a pile of copies at the back of the room, and they are there for the benefit of the audience. They would not have been able to read the submission beforehand, unless they looked at the Internet over the weekend. It is there now; I think it was put there on Friday. I would like your permission to allow the audience to pick one up, if they would like to do so.
CHAIR -- Please go ahead, Mr Latimer. If people want to take copies, they can do so at their own will.
Mr Latimer -- I would like to thank Michael Payne and Susan Armstrong for helping me prepare for today and, of course, thanks to my wife, Deborah, and my family for their support. I would also like to show my appreciation for Richard McGarvie, whose efforts I have borrowed from extensively. Sadly, I will never get to meet him but, through his writings, he did inspire me with his insightful and considered approach to republican issues. I believe it is time for me to introduce the Honorary President Republican Model.
This is a minimalist model where the Queen's role in our Constitution is replaced by a new role: the Honorary President. Why an Honorary President? By adding that one word, you have already worked out before I have even told you that the Honorary President is a ceremonial President, a symbolic President; a President with no real power to exercise. I want the Australian public to get that point too without any confusion now or in the future, because the Honorary President is directly elected. I want people to understand what they are voting for, even if they are not interested in knowing anything more. They will be voting for an apolitical representative -- an Honorary role with virtually nothing to do with the Prime Minister or actual government. Of course, Mr Chair, I am sure you will have an interest in knowing more, so let me outline what happens.
On the republican transition when the first Honorary President is elected and commences their term, they are momentarily given all powers, functions and immunities of the Queen. These are then immediately taken up by the Governor-General or state Governor as required. This means the Governor-General and the state Governors continue to do their job in the same way. As far as governing the country is concerned, nothing significant has changed.
When the normal term of the Governor-General is nearly finished, the Prime Minister makes a nomination to the Honorary President for the next Governor-General. When the term does finish, the Honorary President appoints the nominated person. Please note that the Honorary President does not choose the Governor-General. Also, the Prime Minister can make a nomination at any time, which means the Governor-General can be replaced at any time. Mr Chair, I am sure you can see the parallels with existing arrangements. Maintained are the constitutional conventions that underpin our system of parliamentary democracy.
The same applies at the state level. After a nomination by the Premier, the Honorary President may appoint a replacement state Governor. The Honorary President, of course, has a ceremonial function, but apart from the appointment power, which I have just discussed, they are prohibited by the Constitution from exercising any other executive power whatsoever. The result is a model which appears to fulfil the essence of what Australians are looking for in a proposed republic -- that is, a directly elected, independent and apolitical head of state. Not only that, but it is safe and it retains all the stability of our existing system of government.
I would like to quickly draw attention to just three of the many advantages of the model. Point one: in the election of the Honorary President, seven of the 10 candidates would normally be former state Governors or former Governors-General. The model takes full advantage of the experience of these distinguished Australians. The other three candidate places are filled through public petition. Ultimately, any eminent citizen could become the Honorary President.
Point two: the dismissal procedures, should they ever be needed, are fair. Under this model, the Governor-General cannot be instantly dismissed. The same applies to the Honorary President.
Point three: the model continues our unified federal system, which we enjoy today. The Commonwealth and the states make the transition together. This is the first public presentation of the Honorary President republican model. It is appearing as a working prototype -- mark I, if you like. Today I hope to be a confident advocate of the model as it stands, but I am under no illusions that there is not a lot more work still to be done.
I want Australia to have the best possible constitutional system. On that point everyone here should agree. If we are to make changes, we need to first get them right. This is my contribution in the pursuit of this aim. Mr Chair, I think I am ready for your questions.
CHAIR -- That is a brave statement. I have one or two questions and then I will pass over to my colleagues. It seems to me that, although you are setting out to get a minimalist model, it may very well need quite a lot of constitutional change. The naming of the head of state -- I suppose that is what we are calling it -- as "Honorary" does not necessarily mean that the powers under the Constitution that are currently with the Queen would be negated. You would have to go through the Constitution extensively to do that. Is that something you have canvassed at all? Do you think that is not a major problem?
Mr Latimer -- With regard to the amount of change, there are 20 sections -- I have counted them -- in the Constitution which mention the Queen, and I think you would be able to implement this model by making changes to only those 20 sections. In the submission there is an example of the changes you would make, but I am not pretending that I am a constitutional lawyer and that you would adopt those changes. Nevertheless, it is not wordy and the formulation of how the powers are distributed is done by formulae. In fact, I have pretty much outlined in my submission the essential elements of how you would distribute those powers. You would have a constitutional power with the Honorary President and you would have a ceremonial function, but apart from that you would have the powers held by the Governor-General, or in the states it would be the state Governors, just as they are today. So, on that basis, that is why I am thinking of it as minimal model and that the changes in the Constitution would not be extensive.
CHAIR -- So the position would be called Honorary President, but that President would have constitutional powers?
Mr Latimer -- They would have the power of appointment and the Constitution would specify exactly how that appointment would be made. The important point that would be mentioned would be that the Prime Minister would make the nomination. It is meant to parallel exactly what happens now, where the Queen acts on the advice of the Prime Minister.
CHAIR -- Where does your direct election come into this?
Mr Latimer -- I think that -- and this is through reading what is in the press and articles, and through speaking to people -- one of the important things people are looking for is having a head of state who is elected by the people. It makes sense to people. The constitutional function is important but, when people make that assessment, they are looking beyond what the Constitution says; they are looking for someone who they can look up to, who they can respect, who can be the patron of organisations and who can say and do things to bring people together. The Queen does that in Great Britain and I think people are looking for that.
Senator Payne -- Mr Latimer, thank you very much for your submission, which is innovative, comprehensive and provides the committee with some interesting options to have a look at. I was going back over your two heads are better than one concept, which starts on page 28 of your lengthy submission. I am still not sure though that I can come to terms with the delineation, if you like, or the demarcation between two officials at that particular level in the way that you have drawn it and how you would not have duplication, additional expense and perhaps some confusion over who is really fulfilling which role. Would you like to address those issues?
Mr Latimer -- That is an important question that arises when someone is looking at my model trying to work out whether there is merit in it. The term two heads are better than one? is merely there to grab your attention. In the Constitution, we see that we have two officials doing two different jobs. In a sense, we have that today: we have the Queen and people ask if the Queen does her job for Australia well, to which I reply that she does something here. And we also have the Governor-General. People see the Governor-General as a constitutional umpire and they see the Queen as someone else. It would really be up to the first Honorary President, when they got that position, to actually finalise and delineate what they would do. What I have put in the submission is sort of like a prediction based upon the role as I have outlined it. I see the Governor-General on the ceremonial side spending their time in the functions of the federal government. They would still open parliament and they would still see ambassadors. When I had a look at the schedules of the governors-general, it seemed like most of the things they were doing were associated with federal institutions. For example, the High Court celebrated its centenary recently, I believe. They are doing those jobs and they are also based in Canberra. The Honorary President would be doing something more akin to a State Governor as they go around their state, but they would be doing it at a national level. I think there would be great interest in what the elected head of state would be doing. Again, it would be ceremonial. They would be appearing in a wide range of capacities, and there is certainly plenty of work for them to do, whether it is visiting hospitals, going to schools, opening something, attending an exhibition, cultural event or even a sporting event. There is so much that the Honorary President could be doing and, at the same time, plenty of work still left for the Governor-General. If the demarcation is not entirely clear here, I am sure that, because there is plenty of work to do, they would be able to work out the best thing for each of them to be doing.
Senator Payne -- Is that an area which you think obviously has potential for development to achieve greater clarity and specificity about the particular roles?
Mr Latimer -- One thing I think I mentioned in the submission was the idea that this is something that people can make a contribution to. It should not just be me pointing this out. I have started something, but why cannot people, if they like the idea in general, say, "Yes! I have an idea of what the Honorary President could be doing in our community. We could invite them to do such and such." It is something that people can understand. We already in a sense have a model for that. We see what the Queen does and the Queen does get a lot of attention. We understand the things she does. And they are not political. People can understand that. It is a great opportunity for others to make a contribution there.
Senator Payne -- So is part of your reasoning for this bringing the office closer to the people? Is that what you are trying to say?
Mr Latimer -- Absolutely.
Senator Payne -- Thank you very much for clarifying that.
Senator Buckland -- Thank you for your model, Mr Latimer, because it is different to any I and probably the rest of the committee have seen before. It is too early for me and I am too untrained in law to try to judge it for you. But there are a couple of things I note: it means that we still have a Governor-General, basically as we have now, with an Honorary President duplicating some or part of the current Governor-General's work. Is that how you see it?
Mr Latimer -- I do not see it in terms of what the constitutional duties are; I see them as quite separate. I am untrained in law myself so I cannot make an assessment on the legal side any more than anyone else. But, in terms of the duplication, there is an overlap on the ceremonial side. There are certain cultural events where you would presently have the Governor-General or a state Governor attending that the Honorary President could do. It would be quite good if either of those officials could attend. The delineation which I have mentioned is derived from the constitutional role. The Governor-General is the highest official in the federal jurisdiction, so it would make sense that they would have priority when it came to federal institutions. The Honorary President would probably stay away from the federal parliament and Canberra most of the time and go around the country and attend functions in general.
Senator Buckland -- If I am interpreting you correctly, the Honorary President would not be paid. However, there would be quite a hefty bill associated with the cost of having them in office: that is, if they were to attend community functions around the country, they have to get there. They wouldn't cop the bill themselves, I am sure.
Mr Latimer -- No. I originally started with the idea that the Honorary President should be unpaid, but it seemed a little bit unreasonable. There would be a lot of work to do. The word "Honorary" can mean unpaid. It does mean a couple of other things at the same time. So the definition I have taken is from the Macquarie Dictionary. It says: "... given for honour only, without the usual duties, privileges, emoluments, etc". So I am using that definition. The main reason I have used the title Honorary President is one of communication. I want to communicate the idea that the Honorary President is not an executive President. I do not want anyone to be confused about that, so I am using the term Honorary President first and foremost as a communication tool, to communicate what the role is. So, regarding costs, I am expecting that the Honorary President would be paid. I do not think you could compare the costs of the office with that of the Governor-General; I think it would be much less. The Governor-General has a number of things he is responsible for in his office which includes the properties, the honours system and, I believe, the Australia Day Council. That is where the expenditure goes. I have made an estimate of between $1 million and $2 million for the running of the office annually, but that is just one person's estimate. Obviously, someone else will have a look at it and come up with a better estimate than I have come up with. So there would be a cost to it.
Senator Buckland -- Thank you for that. There was just one other area I was going to ask you about, because I have listened to this debate so many times in so many arenas. With regard to selecting a person such as you suggest, basically, I think you are on the right track. It would be great to get such a person. But how do you find a person who is non-political and does not qualify for any of the offices that you mentioned before? Where do we find this person for popular election if they cannot be promoted, particularly by a party, to get them to that state? Who pays for the cost of their election? If I were to nominate someone who I think would be suitable and appropriate for what you are suggesting, no-one in this room would know who it was. No-one in my home state, apart from those in the city I live in, would have even heard of the person, but that person would admirably fill the role you are talking about. I am very unclear on the qualifications for that.
Mr Latimer -- Yes, it is important that the position be seen as apolitical. I think there would be an expectation. I do not think that I could put the model up without having some sort of sanction on people who have association with political parties. I think it should be left to legislation. I am imagining that the person would not be in a political party and would not have been employed by a political party organisation, perhaps for a number of years beforehand. I have not specified the number, but it would be perhaps three years or five years. There are many people, of course, who would fit that. As to the person we are looking for, I think we have been well served by our state governors and our previous governors-general. That is why I am putting forward the idea that the parliament should be able to nominate those people. They should in a sense be thought of first because they have the experience and they have done the role. As far as I am concerned, they have all done it well, so they should certainly be put forward. There could be other people. As a consequence, you always need to have that avenue of being able to nominate by petition. That said, through all of the elements that I have put toward the model, I have tried to create a position which is apolitical. So the way the election is held and how people find out about the candidates should be done in a way which does not involve the political parties. The second part is the tricky part: how do people find out? Even with state governors, chances are that there are a lot of people who will not know who the State Governor is. What I am proposing is that it should be run very much like a plebiscite. The AEC would collect information from the candidates or parliaments, if they are the nominating organisation, and put together a booklet just like you would for a plebiscite so people can find out about the candidates. They will all be good candidates, I am sure, and people can make that choice in their homes. If it is a postal ballot that would be my preference. As a consequence, there really would be no need for political parties to get involved. In fact, a number of organisations, the NRMA is one that I can think of, already do things like that, so why can we not have it for this?
Senator Buckland -- Perhaps because it is a political process? Government at any level would attract politicians. That would be my view on it. I am not opening that for debate; it is just a view. I like people like you who do in fact put something before us that makes us think differently, and I appreciate that. I cannot judge your views until I have heard enough from you and others, but I see a lot of difficulties with it in getting it accepted. But I wish you well in your endeavours.
Mr Latimer -- I see difficulties with that as well. This is one person's contribution. It is being aired in public for the first time. What happens next is very important. But one of the things about politics as opposed to this position is that I would imagine that someone entering politics -- and you would know much better than I -- is looking to change things and be part of the government in order to put policy forward, have ideas and be heard. The Honorary President does not have political power. As a consequence -- and, in a sense, I am hoping that this ends up being true and that I am not incorrect in saying this -- if you have a position where there is no political power, are political parties necessarily going to be that interested in finding someone to fill it?
Senator Kirk -- Thank you, Mr Latimer, for your contribution and for providing us with a model that is somewhat thinking outside of the square, so to speak. I have a few questions in relation to the relationship between the Governor-General and the Honorary President. You mentioned in your submission that the Governor-General would be nominated by the Prime Minister and appointed by the Honorary President. Is that correct?
Mr Latimer -- That is correct.
Senator Kirk -- Who, then, would remove the Governor-General under your model, if that became necessary?
Mr Latimer -- The Honorary President would remove the Governor-General?
Senator Kirk -- On the advice of the Prime Minister?
Mr Latimer -- but they would only be able to do it if they had received a nomination from the Prime Minister. As to the word "advice", which is mentioned in the Constitution, because I am not a lawyer, I am not facing government. It seems a bit funny to me and I thought I would try to imagine what a modern way of expressing the same thing would be, so I have said that the Prime Minister would make a nomination and then the Honorary President would make the appointment. The wording of the Constitution would say that, after making the nomination, the Honorary President may make the appointment, which is effectively the same as the system we have today.
Senator Kirk -- So it does leave that discretion in the hands of the Honorary President as to whether or not to accept the Prime Minister's nomination for the Governor-General?
Mr Latimer -- In the wording I used in my example, they would not have the discretion to reject the nomination; they would have the discretion to delay making the appointment.
Senator Kirk -- In what circumstances would there need to be a delay?
Mr Latimer -- The circumstance would be when there is the possibility that both the Prime Minister and the Governor-General would move to dismiss each other at the same time -- in other words, in the midst of a very protracted constitutional crisis, perhaps more protracted than what we experienced in 1975. Then, by creating that delay, whether it be a day or a week, the constitutional crisis would unfold without necessarily involving the Honorary President. I think it puts the Governor-General in a bit more of a certain position than now, but I am only saying that because I am not sure exactly how the Queen handles this situation. I have used what Richard McGarvie has written in his book. If what Richard McGarvie says is correct, then it does mean that the Queen is clever about how she dismisses the Governor-General, and I want the Honorary President to be clever about it as well.
Senator Kirk -- With the way you have just described it, doesn't it politicise to a fair extent the role of the Honorary President if he or she can be involved in this process?
Mr Latimer -- That would be a decision that the Prime Minister would have to take into account if they decided to make a nomination in the middle of a term of a Governor-General -- in the middle of a constitutional crisis. The Governor-General making that nomination would be then politicising the office or at least asking for some sort of decision from the Honorary President which would be discretionary.
Senator Kirk -- I think that probably needs to be thought through a bit more. Perhaps we will have a look at that a bit more closely.
Mr Latimer -- Absolutely. It is a very contentious point under just about any model that is put before the committee or, ultimately, in a referendum.
Senator Kirk -- In your submission you talk about the tenure of the Honorary President. You propose a: "Term of five years, extensible in lots of six months to a maximum of eight years for synchronisation with general elections." Am I to suppose from that that the Honorary President would be elected at the same time as a normal general election was held? Is that what you are suggesting -- that there will be elections for the Honorary President every time the general elections have to be held?
Mr Latimer -- Not quite at the same time. I am not saying that someone would enter the polling booth and vote in the general election and for the Honorary President at the same time. What I would imagine would happen is that the Honorary President would be elected shortly after. The cost saving that I am thinking of there is in terms of updating the rolls and making sure everyone is on the roll. I believe that happens before a general election, and it is not necessarily a good idea to do it that way in my model. I think that is very expensive. It is not central to the model, but if you could synchronise the election there would be a number of advantages. On the cost saving I just mentioned, I am in favour of postal ballots. The other thing is that after a general election it is a funny time politically -- a quiet time. I would be taking advantage of that lull, and I still see the general election as being far more important.
Senator Kirk -- Finally, you say that the process of removal of the Honorary President would be "similar to that of a High Court judge, with a majority of parliamentarians supporting removal in a joint session for reasons of: (i) proved misbehaviour;(ii) incapacity;(iii) improper exercise of powers;(iv) holding foreign citizenship; or (v) activity in a political party." There are a number of issues I wanted to raise there. You say "activity in a political party," but part of the eligibility criteria is that they have had no association with a political party. You are suggesting that that would apply if they suddenly decided that they wished to become involved?
Mr Latimer -- That is correct. I am trying to cover my bases.
Senator Kirk -- There are difficulties here with how broadly you might read that term "political party", but I suppose that is something that could be fixed. I notice that foreign citizenship is not something that you include as part of the eligibility criteria -- you say "Australian citizen." So are you talking about dual citizenship there? Are you talking about them taking up foreign citizenship?
Mr Latimer -- I suppose what I am saying is that the Honorary President would commence solely as an Australian citizen and then would continue to be an Australian citizen. That is the effect that I am trying to create, and it is a reasonable thing -- I think people would expect that.
Senator Kirk -- Finally, the thing that concerns me most is the phrase "improper exercise of powers". What do you mean by that? You say it is similar to what applies for a High Court judge, but these are additional reasons for removal.
Mr Latimer -- It is not the same as a High Court judge, because you have extra provisions there.
Senator Kirk -- What do you mean by "improper exercise of powers?"
Mr Latimer -- As I have mentioned before, in drafting documents this is not something that I would expect people to take as verbatim, but I mentioned in an earlier section what would be an improper exercise of power, and that would be the exercising of a power differently to how the Constitution stated it should be exercised. One of the issues that comes up over and over again when it comes to directly elected presidents and heads of state is the idea of codification. I am making an effort there to codify and to make sure that the codification is a complete one. I do not want to have any gaps.
Senator Kirk -- It is very difficult to do that.
Mr Latimer -- From my perspective it is a bit difficult to do it, but I am sure there are other people who can do a very thorough job.
Senator Kirk -- I think most people would find it quite difficult. Thank you.
CHAIR -- Thank you, Mr Latimer, and thank you very much for your creative submission.