Protection for Bodies that Might Have to Annoy the Executive

by John Pyke, Queensland candidate for the Constitutional Convention

As noted in Constitutional Amendments for a Real Republic, the Constitution currently gives some guarantee of independence to the federal judiciary, by protecting their tenure of office, but gives no such protection to other officers whose job sometimes entails embarrassing the executive government - such as the Auditor-General, the Electoral Commission or the officers of the Parliament. The new South African Constitution extends the protection of tenure to members of what it calls the State Institutions Supporting Constitutional Democracy (the Auditor-General, Human Rights Commission, etc), but it does nothing to protect the Institutions from being starved of funding or having their powers diminished.

So I am proposing that the President should be given an explicit role as defender of the independence of the judiciary, the Parliamentary departments, and "Institutions of Fairness and Honesty in Government", as I have named them. Some of the sections below are also shown in other files, especially Powers and Functions of the President, but here they are all collected together.

Definition

The following definition would be part of the definitions section, to be inserted into the Constitution proper as section 2 (as explained in The Constitution as an Act of the People of Australia):

"Institutions for Fairness and Honesty in Government" means

the Australian Electoral Office,
the Commonwealth Auditor-General and Office,
the Commonwealth Ombudsman and Office,
the Human Rights and Equal Opportunity Commission [or Human Rights and Responsibilities Commission], and
any other body declared to be such an Institution by Act of Parliament;

Sections Giving the President a Protective Power

From Chapter 1, Part 5: Powers of the Parliament

58. President's certification of Bills
(1) An Act shall not have any effect on the powers of, or be effective to appropriate money for:-

(i) a federal Court,
(ii) the administration of the Houses of Parliament, or
(iii) an Institution for Fairness and Honesty in Government

unless the President has assented to it becoming law.

[Then my new sub-section 2 goes on to provide that the general function of the President is simply to certify that a Bill has been properly enacted into law.]

From Chapter 2

64. Appointments to Institutions of Fairness and Honesty in Government
All appointments of senior officers of the Institutions of Fairness and Honesty in Government shall be made by the President on the recommendation of the Executive Council. If the President and Executive Council are unable to agree on the selection of a senior officer, the President may, where there is an urgent need for an appointment, appoint a person for a term of not more than one year.
[The two sections above were also shown in Powers and Functions of the President]

Sections Relating to Financial Matters

Interim Appropriation for Protected Institutions

Section 83 currently provides:

No money shall be drawn from the Treasury except under appropriation made by law.

I propose an extended section as follows:

No money shall be drawn from the Treasury except under appropriation made by law, except that where the President and the Parliament are unable to agree on an appropriation for any body mentioned in sub-section 58(1), the body may draw and spend money from month to month at the rate of one-twelfth of the last yearly appropriation made for the body.
[This would mean that a law reducing the appropriation for a Court, a department of the Parliament, or an Institution of Fairness and Honesty in Government could not be passed without the President's consent, but the bodies would not get increased funding without Parliamentary approval.]

Extending the Functions of one of the Institutions of Honesty

Section 97 currently refers to the audit of "receipt and expenditure by the Commonwealth". I propose that it be modernised (see Simplifying the text of the Constitution, and a further provision added:

(2) The Auditor-General's power extends to the review and audit of the receipt of money by members of Parliament and members of the executive government in connection with the performance or abuse of their public duties.
[Since there is no permanent Commission Against Corruption in the federal sphere, it seems appropriate to give this function to the financial investigators who already have the function of checking on federal spending.]

Back to: Constitutional Alterations for a Real Republic

Written by John Pyke, 5 November 1997