Senate Submission
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The Amendments
Section 61
Removal of Honoraries
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In the case for voting NO from the 1999 referendum, the explanation under Reason 1 provides an imposing argument for rejecting the bi-partisan appointment model. While it is possible that the average voter may not have grasped the full implications of the argument, technically the dismissal procedure was a flagrant violation of natural justice.
The dismissal procedure under the Honorary President model is entirely consistent with community expectations in that the Parliament can dismiss the Honorary President or an Honorary Vice President for a specific reason and where a defence of the offending action is allowed. The list of valid reasons is stated in the section, so the Prime Minister cannot use threat of dismissal as a weapon in any constitutional crisis.
The dismissal procedure is borrowed from existing sub-section 71(ii) providing for the dismissal of High Court and Federal Court judges.
The reader may ask whether it is appropriate that a judge and Head of State should share the same mechanism, given they perform quite different functions under the constitution, however, the drafters of the constitution repeated the same provision for dismissal of members of the defunct Inter-State Commission in sub-section 103(ii).
It is clear that this provision is appropriate for all actors in the constitution who need to be independent from the Parliament. The advantage is that Australia has some experience in dismissing or trying to dismiss judges, so the same experience will be available if dismissing an Honorary President, the need of which we all hope never arises.
A draft of section 60, in its entirety, follows:
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Items (i) and (ii) are taken directly from sub-section 71 (ii).
Item (iii) allows the Parliament to remove the Honorary President should they violate the provisions of section 59 which says ‘any exercise of power or function by the Honorary President, except in accordance with this section [59] of this constitution shall have no validity and may be regarded as an improper exercise of power or function.’
Items (iv) and (v) relate to the qualifications of the Honorary President. Foreign citizenship is not discussed as a qualification of a candidate under section 60, although the Parliament would be permitted to make a law to provide this. Nevertheless to be the Honorary President one must be an Australian citizen without duel nationality. This means it’s theoretically possible to contest the election before such renunciation.
As discussed earlier, the community has an expectation that the Honorary President will not associate with a political party. Sub-section 60(iii) provides this for candidates, while Sub-section 61(v) continues the restriction for the term of office.
This section replaces the existing section 61 on Executive Power and is still current, however the effect of the existing section is now found at the end of section 59.