Constitutional Law Assignment
981 Martyn Hanmore
Role and Powers of the President
Principle Models From the Convention.
Mode of Election of the President
What is a republic?
Role and Powers of the President
Principle Models From the Convention.
In order to evaluate any proposed republican model, it is necessary to establish some criteria by which other models can be judged. The primary motivations towards a republic are essentially aesthetic ones. Michael Ward from the Australian Republican Movement cites three major reasons for wanting a republic: identity, unity and democracy. The first two express a desire that the Australian people identify with the symbolic Head of State, and the third he goes on to clarify as an indictment of the hereditary throne. These motives do not express any great dissatisfaction with the fundamental system we already have. Thus, a good measure of a republican model is how well it preserves the delicate balance of powers established by the Australian Constitution as it stands.
The fundamental precept of the Australian system is "responsible government". Entrenched in s64 is the idea that Ministers must be elected to office in either the House of Representatives, or the Senate. Here we run into a theoretical difficulty. In theory, the Executive is a body whose task is to administer the law created by the legislature. We call Australia a ‘democracy’ because that legislature is elected to enact the will of the people – if they don’t, the people won’t vote for them. As executive power is vested in the Queen, the convention follows that the Queen acts only as asked to act. That is the theory.
However the combination of the Party system with this convention leads to a large gap between theory and practice. The convention is that in choosing the Federal Executive Council, the Governor-General selects the senior members of the party in the majority. Those same people are the inner Cabinet Ministers. Thus, in effect, the Governor-General acts only as asked to act by the Cabinet. Thus executive power (with the exception of the reserve powers) is wielded indirectly by the Prime Minister, as the leader of the Cabinet.
Another follow-on from the Party system is that the legislature is governed by the dictates of Cabinet. As the Prime Minister is the leader of the party with the majority in the House of Representatives, the policy which drives legislation does not come from the members, it comes from the Prime Minister and Cabinet.
Thus executive power (with the exception of the reserve powers) and legislative power have the same body, the Cabinet, as their source. Rather than the Executive administering the dictates of Parliament, the Executives is dictating to the Legislature. This trend was recognized by the Chief Justice of Australia, Sir Gerard Brennan in a speech given at Bond University on the 21st February 1998, where he said:
"If our Constitution continues to deny the Governor-General (or a republican President) executive power to be exercised independently of ministerial advice - leaving aside the reserve powers - the question we have to face is whether a concentration of such political power in the hands of a Parliamentary Executive is desirable … there are dangers in maintaining a structure which lends itself to the concentration of political power in the Executive Government. There is a risk of efficiency turning into tyranny."
The creation of an office of President will polarize this distinction, forcing us to choose between responsible government, and a President who is sovereign. Because of this combination of the executive and legislative functions, Australia has a system somewhere between the Washington and Westminster systems – the executive power effectively lies with the Cabinet who are both sovereign and responsible, however that sovereignty is limited by the Governor-General’s reserve powers.
The only differences between the models proposed by Bill Hayden and by the Direct Presidential Election Group are basically aesthetic. They regard nomination procedure, term of office etc. At the core of both there is the same question:
By choosing an elected President, we are creating an office which represents the democratic sovereignty of the people over and above the Prime Minister. Thus the President must exercise the reserve powers now held by the Governor-General. By choosing an elected President we are choosing to make the ultimate power responsible to the people.
The two models for Direct election that made the final vote at the Constitutional Convention both left the powers of the President the same as the powers of the Governor-General. Non-reserve powers still effectively reside in the Cabinet, as they are to be exercised only on instruction, and the reserve powers.
So the question pertaining to both of these models – is should the reserve powers be exercised by a popularly elected President?
Nominations by any citizen. Short-list compiled a constitutional committee which is representative of the Australian population. Appointed by motion from the PM seconded by the Leader of the Opposition and supported by a two thirds majority in a joint sitting of Parliament.
Nomination by any citizen. PM chooses one who is appointed by a Constitutional Council of ex-Governors and ex-Governors General.