Powers and Functions of the President

by John Pyke, Queensland candidate for the Constitutional Convention

Do We Need a President/Governor-General at All?

Some people argue that there is no need for a President or Governor-General in a republic with the system of responsible government. Assuming we don't want to copy the American system, and really give all power to the President (and I don't think most Australians want to do that), we would still have the Prime Minister and other Ministers, whose selection would depend on being able to obtain a vote of confidence in the House of Representatives. The Chief Justice could swear them in, and the signatures of the Speaker and the President of the Senate would certify that a Parliamentary Bill had been passed into law. What else is there for a President to do?

It seems to me that two functions remain for a President. The first is ceremonial, and therefore we could ignore it if we wanted to set other countries an example of minimum pomposity in government - but other nations seem to expect us to have a Head of State as well as a Head of Government. International affairs have a certain ceremoniousness (ok, pomposity) about them, and we are expected to have someone to whom ambassadors can present credentials, who can formally meet other Heads of State and so on. It would take up a good deal of the time of a Prime Minister to have to do these things as well as performing the real decision-making role of a Head of Government. It helps to have a National Master of Ceremonies.

Much more importantly, there are also times when the political system needs a National Referee. When the Prime Minister loses a vote of confidence, can we always rely on his/her sense of honour to vacate the office? If there is no President, who decides whether the Leader of the Opposition should now be sworn in or whether the PM should be allowed to stay in office while an election for a new House is held? The Chief Justice could be given this responsibility, but that would risk further politicising an office that has already attracted criticism in recent years. Better, it seems to me, to have some person in a position of National Referee, to make sure the rules of responsible government are observed and to interpret the conventions of responsible government, as neutrally as possible, when their application is unclear.

The Name - President, Governor-General, or Umpire?

I am referring here to the future Head-of-State as the "President", but it seems to me the name does not matter much. Neither "President" or "Governor" is totally apt, as they both suggest someone who is actually in charge of the executive. A "president", linguistically speaking, is someone who sits in front - perhaps more appropriate for the chair of a meeting, or the Speaker of the House of Representatives - but we are used to its usage for the head of an executive government because the Americans chose the word for their chief executive. Although we think of a "Governor" as the Queen's representative who exercises only nominal power, the word of course means someone who governs. [But then on machinery a governor is a safety mechanism, a speed-limiter, so if we think of that usage the word is about right for the position that I think of as National Referee.] Perhaps it might be better to invent a new, all-Australian, term, like National Referee, or Umpire - or even Umpy! Or we could borrow from a couple of the churches and call the office Moderator-General. But in the end it is more important to get the job description right than the job title.

Defining the Functions of the "Umpire"

The reason that Mr Keating, Mr Howard and, until recently, the ARM have been so insistent that the President must be elected by the Houses of Parliament (with a two-thirds majority) seems* to be that they are assuming that other alterations to the Constitution will be minimal, and in particular that section 61 will still nominally vest executive power in the President, with the Executive Council merely "advising" him or her - see the Winterton draft for an example. If that is so, the argument runs, a popularly-elected President might think "I have a mandate from the people and section 61 says I'm the Boss - so I'm going to try to exercise some real power". There would then be potential for destructive conflict between the Prime Minister and President. Australia, as Mr Howard has claimed recently, would be torn between two centres of power.

[*Some people say that it's simply because they're elitist - I don't think that's the only reason for the insistence but I'd find it hard to argue that many of the Parliamentary-election advocates aren't also elitists, who believe in a "culture of hierarchy", as Paddy O'Brien (Western Australian candidate) puts it. The elitism itself may be responsible for the assumption that section 61 will be minimally amended - these people like the sound of a section which vests power in one person at the top, even if it's expressing a myth!]

Now I do happen to agree with the ARM that we should keep the present system of "responsible government", under which the Prime Minister and other Ministers have to be Members of Parliament, and have to have the support of the majority in the House of Representatives. That is, Australia should not have an executive President on the American model; the President should simply function as "Referee" - more or less as the Governor-General does at present [with one significant expansion of the "Referee function", but don't click that link yet - you'll come to it just down the page]. But that minimal change to the system of government cannot be done by minimal amendments of the Constitution.

The obvious way to avoid the potential for conflict between two giant egos is to have further, more-than-minimal, amendments to codify and limit the power of the President, and make it clear that real day-to-day executive power is vested in the Ministers in the Executive Council. My suggested amendments, below, do that. [Don't be scared by the thought that this is somehow giving `more power' to Ministers - remember, first, that this is the way things really are already, and secondly that I also propose the inclusion of some Express Limits on Executive Power.]

If this is done, then how the President is chosen will become less crucial. There are still arguments for and agaisnt election by the people or election by the Parliament (see Electing the President - Alternative Models), but no method should lead to chaos, civil disorder, and constitutional disaster. The one combination that we really should avoid is a popularly-elected President with a minimally-amended section 61!

Codifying the Conventions of Responsible Government?

There has been much debate as to whether the new "President" (assuming that will be the name) should simply inherit all the vague powers of the Governor-General, or whether the powers should be codified. In the other republican drafts, Winterton's leaves the reserve powers uncodified but gives Parliament the power to codify them (look at s.60A) but it does say that the first Prime Minister after an election shall be the person who seems most likely to be able to form a government (s.62(2)). Turnbull, on the other hand, attempts a full codification of the rules about the formation of governments - see his ss.4B-4F.

I doubt that a full codification is necessary, but I would go one step further than Winterton in codifying the rules. My section 61 would ensure that at any time the Ministry should be chosen so that it has the support of the majority in the House of Representatives. Thus if the circumstances of 1975 arose again, the President would still have the power under section 28 to dissolve the House of Representatives, but the Prime Minister would have to be left in office rather than being forced to fight the election as the sacked (and presumptively disgraced) Prime Minister.

Giving the President a Real Job - Protecting Institutions which Foster Fairness and Honesty in Government

I am suggesting one rather dramatic change in section 58 - although in respect of ordinary Bills the President's power of "assent" is reduced to one of certification that they have been passed, the President would have a real veto power in respect of Bills affecting the powers of the judiciary, parliamentary officers and what I call Institutions for Fairness and Honesty in Government. Similarly, under my section 64 the President will have special powers over the appointment of senior officers of the Institutions for Fairness and Honesty in Government. For the full justification of this, see Protection for Bodies that Might Have to Annoy the Executive.

Proposed Constitutional Amendments

I show below the new or amended sections that we would need to create the office of President and define his/her role in respect of legislation and appointing the executive government. Many of them are similar to those in the other drafts prepared by Winterton, Teague and Turnbull, but arranged under more appropriate Chapter headings, and changed so as to emphasise that the President's function is to be the "Guardian of the Constitution", the "National Referee", or the "Overseer of Democracy". Therefore I do not define Parliament as including the President (s.4), s/he does not "assent" to most legislation, but merely certifies it as duly enacted (s 58), and executive power is not vested in the President, but in the Ministers of the Executive Council, who are appointed and can be dismissed by the President in accordance with the conventions of responsible government (ss 61-62).]

Alternative amendments dealing with the election of the President are discussed in Electing the President. References to where those sections might go appear in the appropriate places below.

Sections Establishing the Office

I suggest these sections ought to be in a new Chapter, near the front of the Constitution.

Chapter IB - The President

3A. President has supervisory powers
[Replaces the existing section 2, which creates the office of Governor-General.]
The President of Australia is the official Head of State of the Commonwealth of Australia. The President shall exercise the supervisory powers relating to the legislature, executive and judiciary vested in him or her by this Constitution.

3B. Term of office.
(1)The President shall be elected in accordance with s 59, and shall hold office for five years from the date upon which he or she enters upon the office, unless before the expiration of that period he or she dies, resigns or otherwise ceases to hold office in accordance with this Constitution.

(2)The President may resign his or her office by writing addressed to the President of the Senate, or the Speaker if there is no President of the Senate or if the President of the Senate is absent from the Commonwealth. Such resignation shall take effect at the time specified therein.

3C. Oath or affirmation of office.
The President shall enter upon the office by making and subscribing publicly the oath or affirmation set forth in Schedule 2.

3D. Salary of President.
(1)The President shall receive such remuneration as Parliament may fix, but such remuneration shall not be reduced during a President's term of office.
[The equivalent of the existing section 3.]

(2)The President shall not hold any other office or position of profit, or receive any other payment of public monies while in office.

3E. Conditions upon President leaving Commonwealth.
Until the Parliament otherwise provides, the President shall not leave the Commonwealth without the consent of the Federal Executive Council.
[Copied from the Winterton draft, and from other constitutions, but I wonder whether it is really necessary in modern times, when the President could keep in touch with Australia no matter where he or she went.]

3F. Acting President.
Until the Parliament otherwise provides, if

(a) the President is absent from the Commonwealth; or
(b) the President is temporarily unable to carry out his duties or functions on account of illness; or
(c) the office of President is vacant for any reason

the State Governor who has served longest in that office and is willing and able to act as President shall act as President until the President returns to the Commonwealth or is able to resume the functions of his office or, if the office is vacant, until a new President takes office.
[The equivalent of the existing section 4.]

[If the election of the President were to be by the electors at large, then provisions regulating that election would also belong here. If the President is to be elected by the Parliament (with a special majority requirement), then the provisions dealing with election, and dismissal, of the President can either go here or into the gap left at the end of the Chapter relating to the Parliament by the repeal of sections 59 and 60.]

President's Role in Respect of Legislation

Chapter 1 should now start with an amended s.1, which vests legislative power in the Parliament - now relocated to s.4, to make room for all the things in Chapters 1A and 1B (see The Constitution as an Act of the People) which logically come before it.

4. Legislative power.
The legislative power of the Commonwealth is vested in a Federal Parliament, which consists of a Senate and a House of Representatives, and which is herein-after called "The Parliament" or "The Parliament of the Commonwealth."
[This has been amended to delete the Queen from the definition of Parliament but, as noted above, has not been amended to include the President, who stands outside the legislature, executive and judiciary.]

[Then the text below will be at the end of Chapter I, Part 5.]

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.

(2) No Bill shall become law until the President has certified that he or she is satisfied that it has been duly passed by both Houses of Parliament, or has been passed in accordance with section 57.

(3) Before assenting to or certifying a Bill, the President may return it to the House in which it originated, with any amendments which he or she may recommend, and the Houses may deal with the recommendation.
[The current section of course gives this power to the Governor-General, but it has always been taken to be a power which is exercised on the advice of the Executive Council - so its purpose is for the government to tidy up mistakes discovered at the last moment, rather than for the Governor-General to interfere with the content of Bills. There may be room for debate as to whether this could be removed, or, on the other hand, whether a real power to suggest amendments could usefully be given to the "overseer of democracy".]

[The existing sections 59 and 60 deal with the Queen's power to disallow Bills, and the practice of "reserving" some Bills for her Majesty's personal assent. Both are quite obsolete, and can be omitted - which, if the Parliament is to have a role in the election and dismissal of a President, would leave a neat space for the relevant sections.]

President's Role in Appointing and Dismissing the Executive

Chapter II - The Executive Government

61. Ministers of State.
The President shall appoint persons to administer the executive government of the Commonwealth. These persons shall be the Ministers of State for the Commonwealth, and shall constitute the Federal Executive Council.

The Ministers of State shall be appointed and may be dismissed by the President according to the conventions of responsible government, subject to the overriding principle that the Ministers must be able, or must be the persons who seem the most likely to be able, to demonstrate that they have the support of the majority of members of the House of Representatives.

The number of Ministers shall not exceed the number, if any, prescribed by the Parliament.

No Minister of State shall hold office for a longer period than three months unless he or she is or becomes a member of Parliament.
[The first and fourth paragraphs are based on the present s.64, and the third on s.65. The second paragraph represents a compromise between the views of those who would codify the conventions as to the head of state's powers and those who would leave them at large. The overriding principle of responsible government is expressly stated, and the subsidiary principles are left open to debate and development. I have not mentioned a Prime Minister; the likelihood is that there will always be one leader, but the Constitution of a democracy should not rule out the possibility of collective leadership.]

62. Executive power.
The executive power of the Commonwealth is vested in the Executive Council and is exercisable, under the direction of the Council and subject to this Constitution and laws made made authority of this Constitution, by individual Ministers and the Public Service and other instrumentalities of the Commonwealth.
[This is a revised version of the current s.61 - revised so as to describe the reality of executive power rather than the Monarchical Myth. I have deleted the passage which says that executive power "extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth" - in 1997, I suggest, that goes without saying.]

63. Departments of the Public Service
(1) The Ministers of State shall administer such departments of the Public Service and exercise supervisory power over such other instrumentalities as the Parliament prescribes, or, in the absence of provision, as the Executive Council resolves.
[This is an adaptation of the first paragraph of the present section 64.]

(2) The Parliament may make laws, subject to this Constitution, as to the powers of the Public Service of the Commonwealth, its organisation, and the appointment and terms of employment of public servants.
[This is a modernised and expanded version of the present s. 67.]

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.
[For the full reasons for inclusion of this section, see Protection for Bodies that Might Have to Annoy the Executive.]

[For the sections that follow immediately after this point - and qualify the vesting of executive power in the Ministers - see Express Limits on Executive Power.]

Back to Constitutional Alterations for a Real Republic

Written by John Pyke; last amended 23 November 1997