Honorary President

Senate Submission

 Overview 
 Title
 Introduction
 Framework
 Origins
 Advantages


 The Amendments 
 20 References
 Section 126
 Section 59
 Section 60
 Section 61
 Section 2
 Section 4
 The States
 All Amendments


 The Election 
 Why Elect
 Apolitical
 Electoral Law
 Timing


 Independence 
 Introduction
 The Two Roles
 Costs v Benefits
 Free Speech


 Other Issues 
 Referendum
 One Royal Link
 Honorary Vice Pres
 Spectrum of Powers
 Questions
 More Questions
 Conclusion

Response to the Senate Discussion Paper

The Legal and Constitutional Committee of the Australian Senate was referred an inquiry into the Australian Republic on 26 June 2003. The Honorary President Republican Model was sent to the committee on 31st March 2004, in response to the call for submissions.

The Committee developed a discussion paper, which outlined the key questions they felt should be answered. The following section is how these questions were answered in the submission. Soon after the Senators had reviewed the submission, the author was asked to give evidence before the Committee on 13th April 2004.

The Head of State

The interpretation taken for the development of this model is taken from sections 1 and 2 of the existing constitution. The Honorary President Republican Model provides for a Head of State to replace the Queen of Australia.

Question 1  Should Australia consider moving towards having a head of state who is also the head of government?

This is not proposed under the Honorary President model, which provides for an independent and elected Head of State.

Powers of the head of state

Under the model proposed, the powers of the Queen of Australia are transferred to an elected Honorary President through succession. The powers of the office are limited and entirely codified.

The republican succession will have the same affect on the Governor General and state governors as a monarchical secession. They would continue to be bound by constitution conventions which remaining not justiciable or codified. This arrangement will continue existing principles of good government and provide flexibility during any crisis involving executive constitutional powers.

Question 2   What powers should be conferred on the head of state?

The constitution would be amended to create a position of Honorary President to hold all the powers, functions and immunities of the Queen of Australia. Exercise of these powers and functions would be limited to ceremonial activities and appointing and dismissing the Governor General and state governors. The Honorary President would also be subject to legislation by the Commonwealth Parliament which could limit the immunities transferred to the Honorary President from the Queen and provide a number of continuing eligibility requirements, provided the legislation did not interfere with constitutional duties.

The Queen’s power to disallow legislation would be removed from the constitution and not transferred to the Honorary President.

Where prerogative powers and ancillary powers and functions held by the Queen are necessary for good government at a state or commonwealth level, the constitution would allow the Honorary President to delegate the power or function to the Governor General and state governors as required. This delegation would be equivalent to the letters patent. The constitution would explicitly state the Honorary President is not permitted to exercise such powers directly.

The powers of the Governor General and state governors, including reserve powers would remain unchanged during the republican transition. They would continue as delegates of the Presidency and be protected by the transferred immunities.

Question 3   What powers (if any) should be codified beyond those currently specified in the Constitution?

The above formula presents a full codification of the powers of the Head of State (Honorary President).

In contrast, there would be no further codification of the powers and functions of the Governor General and state governors. Their reserve powers would be available in their existing form. The constitutional conventions continue as true conventions and remain outside the jurisdiction of the High Court.

Selection

Under the model proposed, the Australian people as one electorate would choose the Honorary President. Candidates would be mostly former governors and former governors-general nominated by the parliaments. There would be three other candidates with demonstrable public support across all states.

The conduct of the election would then be directed by federal legislation. The electoral process would be distinguished from that of parliamentarians at every stage, reflection the difference between them in terms of their constitutional duty and position.

Concerning the Governor General, the existing constitutional convention that binds the Queen to accept the advice of the Prime Minister would find a new form in the proposed constitution. This would provide that only the Prime Minister makes nominations for Governor General. The Honorary President is limited to delaying the appointment and would consider doing so only during a constitutional crisis. Similar provisions could be included in state constitutions to codify the same convention at the state level.

In practice, the Governor General would continue to be selected by the Prime Minister, the governors by their respective state premiers. There would be no need to develop eligibility rules for these positions.

Question 4   Should some form of campaign assistance be available to nominees, and if so, what assistance would be reasonable?

No campaigning assistance would be provided to individual nominees and legislation could be required to prevent candidates from using commercial advertising and associating with political parties.

The government would be required, by legislation, to provide a fixed amount of information about each candidate to electors in a regulated manner. At a minimum this would include a booklet of all candidates set to Australian households and broadcast on government radio and television and interested commercial stations.

The appointment of the Governor General would continue to be a confidential matter between the Prime Minister, the Head of State and the nominee.

Question 5   Should or can political parties be prevented from assisting or campaigning on behalf of nominees? If so, how?

This model is designed to make political parties disinterested in the election of the Honorary President.

Major political parties should accept the constitutional fact that the office of Honorary President would be separate entirely from executive government and be no political prize. Unlike the Governor General, the position offers not even theoretical capacity to implement, support, block or frustrate policy or political leadership. This in itself may ensure that the major political parties would have minimal interest in influencing the outcome of the election, for financial reasons alone.

This consideration would be amplified by the nomination restrictions that encourage state governments and oppositions to support their state governor, rather than a federal nominee. An attempt by a major political party to promote one candidate would be stymied in the state branches of the same party, who must also support their state MPs.

Importantly, if the Prime Minister (or Premier) has in-mind an excellent candidate for Head of State, the model offers them the opportunity to appoint that person to Governor General (or Governor) with a better chance of success in a subsequent election

Minor parties may feel more free and have greater interest to support a candidate, however due to their size, they would be exhausted mounting a petition and successful campaign unless the candidate already had personal mainstream support.

Despite these constitutional and practical restrictions, the Federal Parliament would be expected to provide legislative safeguards that would prevent nominees from associating from political parties. As legislation, the government could adapt it to reflect changes in political activities over time with an interest not just in the probity of the position but also in maintaining the political dominance of the Parliament.

The appointment of the Governor General would continue to be a confidential matter between the Prime Minister, the Head of State and the nominee.

Question 6   If assistance is to be given, should this be administered by the Australian Electoral Commission or some other public body?

The Australian Electoral Commission is well placed to administer the legislation and regulations concerning the conduct of the election

Question 7   If the Australian head of state is to be directly elected, what method of voting should be used?

Any voting method could be used to select the Honorary President, however ideally the method of voting should be distinguished from that of parliamentary elections. The following explanation details one method of achieving such a distinction.

A voting pamphlet would be send to each household and completed ballots would be returned via the post. This would minimise costs and reinforce the idea that the Honorary President has little executive power. The election could be held in the months after a general election, avoiding the costs of updating the electoral rolls.

Voters could be given the option to answer Yes, No or Abstain for each candidate, reflecting a typical voter who would either approve or disapprove of a candidate without needing to rank them in comparison with the others. This simple voting method would reduce informal voting, remove the need for how to vote cards and prevent strategic voting. The candidate receiving the highest percentage of Yes responses would win the election

As a whole, the method is distinguished from parliamentary elections in a number of key areas. The intensity of competition between candidates would be reduced and the opportunity for negative campaigning eliminated.

Question 8   If direct election is the preferred method for election of a non-executive president, will this lead to a situation where the president becomes a rival centre of power to the Government? If so, is this acceptable or not? If not, can the office of head of state be designed so that this situation does not arise?

The powers of the Honorary President are codified by the constitution and limited to ceremonial functions. The only official contact between the Honorary President and the government occurs when the Governor General or a state governor is appointed. The powers would not allow the Honorary President to exercise any executive power at any time, either directly or indirectly.

The title Honorary President conveys to voters the ceremonial nature of the office. This understanding, re-enforced by the guided nature of the electoral process prevents the Honorary President from claiming any mandate or any right to suspend or bypass the explicitly stated restrictions on power under this model.

In contrast, the Governor General would retain reserve powers and the many powers provided by the constitution. As an appointed person, they would be limited by the existing constitutional conventions. If the Governor General exercises power without the advice government ministers, they could be quickly removed by the Honorary President upon the nomination of a replacement by the Prime Minister.

Nomination

Question 9   Who should be eligible to put forward nominations for an appointed head of state? For elected head of state?

The constitution would provide three methods of nomination of candidates for the election of the Honorary President

1. The Federal Parliament could nominate one former Governor General
2. Each state parliament could nominate one former governor or lieutenant governor of that state.
3. Any group could provide a petition for nomination to the Governor General, however only the most successful petitions with support from multiple-states would be successful. The formula and final number of nominees would be set by federal legislation.

As discussed previously and quite separate from the election of the Honorary President, the Prime Minister could make a nomination for Governor General at any time. Similarly, one nominee for state governor could be made by a Premier. The Honorary President would make the actual appointments.

Question 10   Should there be any barriers to nomination, such as nominations from political parties, or candidates being current or former members of parliament?

In accordance with section 60, the Federal Parliament would be expected to enact legislation to disqualify nominees who do not meet the eligibility requirements. Section 60 also allows the Parliament to provide other restrictions.

As discussed in the previous section, there are parliamentary and public nomination methods and each is restrictive.

For parliamentary nominations there would be a requirement to serve a minimum term in their position as Governor General, Governor or Lieutenant Governor. Each parliament could only make one nomination. As there are seven parliaments the number of nominations is thus limited to seven.

For public nominations, there would be a minimum number of petitioners. The successful petitions would in be the top three in terms of the number of signatures.

In contrast, there would continue to be no restrictions for the Prime Minister or a Premier when making a nomination for Governor General or Governor.

Question 11   Should there be a maximum and/or minimum number of candidates?

Parliamentary nominations typically would number seven. The constitution would fix the number of successful public-petitions to three. There would be a maximum of ten candidates.

It would be acceptable if no petition with significant support in more than one state was successful. But it would be unacceptable if there were less than three candidates in total.

For Governors-General (and Governors) there is only one nomination, made by the Prime Minister (or Premier.)

Question 12   Should there be a minimum number of nominators required for a nominee to become a candidate?

Yes. For candidates nominated by petition, this minimum number should be set by legislation, be in terms of thousands of petitioners and be distributed across multiple states. For example the formula may be 10,000 signatures with at least 500 signatures from every state and 200 signatures from the territories combined.

With a limit of three nominations by petition, if four or more candidates passed the above test, a second formula could determine the most successful three petitions, for example by simply counting the total number of petitions.

Title of head of state

Question 13   What should the head of state be called, Governor General, President of the Commonwealth of Australia or some other title?

The title Honorary President is proposed. The term Honorary is a familiar one to the English language. It is utilised in many organisations to both honour distinguished persons and given them status without power.

In the context of the Australian Head of State, it conveys to citizens the ceremonial nature of the office and assists in preventing the Honorary President from claiming any form of political mandate.

Term of office

Under the model, the constitution would allow the Parliament to set a term of office of five years, extensible in lots of six months to a maximum of eight years. This gives the flexibility to enable elections to be synchronised with federal elections without necessarily compromising the independence of the position.

The following answers explain one possible implementation of this provision, which the Parliament could adapt as required.

Question 14   What should be the length of a term of office for head of state?

For synchronisation with federal elections, the ideal length of term should be the same as a Senator – six years.

When one or more double dissolution elections were held and the minimum five years of the term had not passed, the term would continue until the next election after the fifth year. The term would finish on a six-month anniversary of the terms commencement.

Question 15   Should a head of state be eligible for re-appointment/re-election?

No. Becoming Honorary President is in effect an honour bestowed by the people on one of its distinguished citizens. At the end of a term, there would be another ten or so distinguished Australians ready to be nominated. It is only reasonable that the honour of being the Honorary President be offered to one of those candidates.

Question 16   Should there be a limit on the number of terms an individual may serve as head of state?

Yes, one term for reasons stated above.

Removal

Although the Honorary President, as proposed, holds a quite a different office to that of a High Court Justice, they would have the same method of removal. Either occurrence would be rarely contemplated, so it would be practical to share the same procedures.

The Governor General can be dismissed in a process commenced by the Prime Minister, who can make a nomination at any time. The Honorary President would then remove the Governor General and appoint the nominee.

Question 17   Who or what body should have the authority to remove the head of state from office?

Dismissal would be carried out by the Federal Parliament in joint sitting after hearing an explanation or plea from the Honorary President in the same session.

Question 18   On what grounds should the removal from office of the head of state be justified? Should those grounds be spelt out?

The Office of Honorary President would be a separate institution from the government and Houses of Parliament. The dismissal provisions for High Court Justices would apply to the Honorary President, that is, proven misbehaviour and incapacity. Additional grounds for removal are holding foreign citizenship, association with a political party and exercising a power of the Presidency outside the directions of section 59.

Casual vacancy

Question 19   How should a casual vacancy be filled?

At each election of the Honorary President, the results would be ordered in terms of popularity and two or more Honorary Vice Presidents appointed. If the Honorary President died, resigned or was removed, the next most popular and available Honorary Vice President would assume the office of the Honorary President. Under most circumstances, the timing of the next election would be unaffected and the new Honorary President would complete the whole of the remaining term.

Under this model, no other constitutional actor is able to fulfil the role of Honorary President, even on a short-term basis. To function effectively the office must be both independent and continuous. The constitutional conventions underpinning the relationship between the Governor General and Prime Minister (also a Governor and Premier) will depend upon it, just as they do today.

The principle of this mechanism is one of respect to the other candidates, who are all former governors or otherwise persons holding high levels of popular support. All of the ten who make this group would make a satisfactory Honorary Vice President.

Eligibility/disqualification

Question 20   What should the eligibility requirements be for the head of state?

In accordance with section 60, the Federal Parliament could enact any eligibility rules as it thought fit. The remainder of the answer follows in Question 21.

Question 21   On what grounds should a person be disqualified from becoming of head of state?

In accordance with section 60, the Federal Parliament would be expected to enact legislation to disqualify nominees who have or have had in recent years membership or association with political parties. Holding other offices under the constitution would also be a restriction, such as being a member of the House of Representatives or Senate.

Section 60 allows the Parliament to provide other restrictions. These would include foreign citizenship, age, bankruptcy and criminal history.

In contrast, there would continue to be no restrictions for the Prime Minister or a Premier when making a nomination for Governor General or Governor.

Relationship of head of state with executive, Parliament and judiciary

In principle, the relationship that the Queen holds today with the executive, Parliament and judiciary would be continued through the Presidency. Like the Queen, the Presidency would be a common feature in the federal and state constitutions – the Australian Head of State also being the ceremonial Head of State for each state.

The Governor General and Governors would be the representatives of the Honorary President and delegates of the Presidency with respect to each parliament in much the same way they are the representatives of the Queen today.

Question 22   Should the head of state have power to appoint and remove federal judges?

No. This would continue to be done though the Governor General and Prime Minister.

Question 23   Should the head of state have the prerogative of mercy?

No. Prerogatives, in order to be exercised, must be delegated to the Governor General and Governors who would only act in accordance with existing constitutional conventions.

Question 24   Should the head of state be free to seek constitutional advice from the judiciary and if so, under what circumstances?

The Honorary President would have the same rights as an ordinary citizen with respect to the High Court and this highlights one of the legal distinctions between the Queen and Honorary President.

Historically, the High Court is a creation of the constitution, which in turn is a creation of the British Parliament, again in turn a creation of the British Monarchy. This means the High Court has no jurisdiction over the Queen and the Queen would have no conceivable place seeking a decision there.

The office of Honorary President would be a creation of the constitution, like the High Court, which would rightly claim original jurisdiction for matters concerning the office and the election to it. Consequently, the Honorary President could seek leave for some type of decision. The High Court would then need to decide how the matter should be handled, either by granting leave or declaring it a matter for the Parliament, for example if the matter concerned impeachment.

If granted, High Court would ably perform its role interpreting the constitution.

Nevertheless, despite the right to do this, it would not happen simply because the Honorary President disliked or thought unconstitutional a particular piece of legislation. The Honorary President would not be granted leave, as in effect, he or she would be acting against the Presidency in which they hold the senior office.

The only conceivable disputes involving the Honorary President and the High Court could be challenges to election results.

Position of the states

Question 25   What is the best way to deal with the position of the states in a federal Australian republic?

One of the clear advantages this model has over existing models is that it continues our unified federal system, with a common link between the states and Federal Parliament.

The Honorary President becomes Head of State for the federal and each of the six states of Australia, in the same way that the Queen of Australia is also the Queen of each state. This maintains the historic and legal parity between the parliaments and executives of the nation.

The Honorary President becomes an actor in each state constitution appointing the State Governor and Lieutenant Governor upon the nomination of the state Premier.

Under the model it is not contemplated that any state maintains its links to the crown. The transition would involve the states and commonwealth moving together.

A process for moving towards a Republic

Question 26   Should there be an initial plebiscite to decide whether Australia should become a republic, without deciding on a model for that republic

This question is not relevant to presentation of the model, but the personal opinion of the author is that such plebiscite would decide nothing and the effort could be better spent.

Question 27   Should there be more than one plebiscite to seek views on broad models? If so, should the plebiscites be concurrent or separated?

This question is not relevant to the presentation of a single model, but the personal opinion of the author is that such a plebiscite would not guarantee success at a future referendum unless overwhelmingly in favour of one detailed and definitive model.

Question 28   Should voting for a plebiscite be voluntary or compulsory?

This question is not relevant to presentation of the model and the author holds no personal opinion on this matter.

Question 29   What is the best way to formulate the details of an appropriate model for a republic? A convention? A parliamentary inquiry? A Constitutional Council of experts?

Parliament and the executive have the same responsibility for the development of a republican model as they do for all other important legislative developments. They should use all the resources and systems at their disposal, be it consultants, the public service, parliamentary committees and inquiries, to redevelop or refine models in a responsible manner.

For this model, there are few constitutional changes and an assumption that the role of Governor General will be mostly unaffected. The details will involve constitutional experts reviewing the conventions and testing them under crisis conditions.

The ceremonial role of Honorary President itself may require a call for public submissions to establish suitable expectations. For example: How much do they want the Honorary President to promote Australia overseas or travel domestically? To what degree should the Honorary President support charities, innovation, tourism, science or the arts?

Finally, the courts, military and government need to say how they propose to adapt to the changes. For example: What insignia will military officers wear? What will be displayed on our coins? What will be the terminology changes?

These questions should be answered before any referendum and the referendum should only be put, if confidence in an affirmative result is very high.

Question 30   What is the preferred way for a process to move towards an Australian republic?

The move to a republic has been and will continue to be a long-term project. There is no urgency in the minds of most voters and no public pressure to move rapidly forward.

Consequently, the process will depend on parliamentary leadership and organisations such as the Australian Republican Movement. It is unlikely that a process could move forward according to a timetable, until the details of a model with a very positive profile are determined.

Parliamentarians should then know when they are ready to present a referendum to the people and they should move only when they are absolutely sure of the support in every state and with an expectation of the referendum passing by at least 70%.

As the presenter of a new model with many positive advantages, the author has at least shown that new perspectives on republican models are possible. This in itself supports the 1999 decision the people took to hold out for something better.

Next: Conclusion