Senate Submission
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The Amendments
Section 59
Powers of the Honorary President
It is common complaint that Australia’s written constitution can say one thing and mean entirely something else. No better evidence will be found than in the new title of Section 59. A more accurate title would be No Power for the Honorary President whatsoever. In all seriousness, this is exactly what the section aims to achieve.
Section 59 replaces an existing section that allows the Queen to disallow any law. The power has never been used and it is uncontroversial that it can be removed.
To codify or not to codify? This question has haunted the developers of republican models since before the Republican Advisory Committee. Many models have proposed a partial codification, which really means codifying the uncontentious, but leaving the issues which could well decide a constitutional crisis open to wide interpretation. It is undoubtedly a bigger headache for other model builders wishing to institute an elected Head of State. Deep down they must know that without serious codification, their systems will evolve towards power sharing between the Head of State and the Head of Government.
In contrast, section 59 provides for a complete codification of the powers of the Honorary President, limiting the Honorary President to a small set of explicit powers and nothing more. The section is based upon the Queen’s existing powers as they apply today. Provided other constitutional actors, including the Prime Minister, acted within democratic and parliamentary norms, none of non-ceremonial powers would involve personal, discretionary or political decision-making. Furthermore, no legislation at the federal level would be able to alter this arrangement without a referendum.
Similarly, and it should be said theoretically, the states could, with respect to their jurisdiction, offer the Honorary President additional powers, but again, they would need to change their state constitutions to achieve this.
The powers are based upon the remaining role of the Queen at the state and federal level:
- appointing the Governor General
- appointing the Governors and Lieutenant Governors of the States
- delegating powers – equivalent to the Letter Patent
- ceremonial activities
- counter-signing an international treaty
Each of the state constitutions, once amended to replace the Queen, would have their own version of section 59, to specify the powers of the Honorary President with respect to their state, or they may simply refer to section 59 as applicable to their state.
Given that there is one Governor General, six Governors, six Lieutenant Governors and few international treaties to sign, over a period of five years this makes for a light official schedule, yet like the Governors themselves, the intention is that the Honorary President is busily occupied with ceremonial activities.
The ceremonial activity powers would allow the Honorary President to make speeches, open buildings and attend memorials. They would be able to award honours and medals at a ceremony but could not decide who was to receive them. More detail on the everyday work of the Honorary President is found later in this submission (see An Independent Institution )
A draft of section 59 appears below:
59 Powers of the Honorary President |
Another surprise is the strongly worded sentence invalidating and declaring improper any use of power other than in accord with this section. It is intended to leave no doubt that the limits to the Honorary President’s powers are always applicable, regardless of the circumstances. It refers explicitly to this section so that no other phrase in the constitution can be used to infer additional powers. The term improper exercise of power can also be found in the proposed section 61, which outlines dismissal proceedings.
In contrast, Governors-General and Governors are treated with comparative leniency. The authority of the Governors continues even when there is a problem higher up. The Governors can exercise powers by precedent and the Governor General cannot be denied the power to govern where the constitution or law allows it. The last sentence is a rewording of the existing section 61 on Executive Power.
Furthermore it is not deemed a problem that a Governor General or Governor can have too much delegated power. The assumption remains, just as it remains today, that the power of these positions is entirely nominal and true power lies with the Parliamentary Government lead by the Prime Minister via the Federal Executive Council.
The contrast between the Governor General and the Honorary President reminds us that the nominal exercise of power is the preserve of the former. The result is that the Honorary President entirely removed from the workings of the Australian government.
Conclusion: the Honorary President has no real power.
Section 59 is not all cheerless for the Honorary President. It is here we learn that Australians can vote for their Head of State. And isn’t that an objective worth attaining?