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How to safely amend the Australian Constitution

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John Pyke, QUT Lecturer at law
In an article on this website, 'Who is head of Australian head of state?', I discussed this question and gave the answer: the Queen. In a later article, 'Strange Powers', David Donovan noted the strange way in which the exercise of Commonwealth executive power is described in the Constitution: s.61 says that ‘executive power is vested in the Queen’ when it is really exercised by the Cabinet and other Ministers.
 

HERE, I am going to discuss the way the Constitution could be amended for a republic to make it clear that the President is intended simply to be head of state, while someone else (the Prime Minister) is Head of Government.

There are basically two kinds of republican government. Some republics, like the USA, have ‘presidential’ government, where the President is the real head of the executive government—a ‘King George’ who reigns for 4 or 8 years. Other republics have a ‘parliamentary’ government, where the President is like a constitutional monarch, who merely appoints (and, in rare crises, dismisses) Ministers. These presidents can’t exercise their personal choice as to who will be PM any more than a constitutional monarch can because the PM needs the consent (the ‘confidence’) of the lower house of the parliament to be able to govern. The President is just an umpire – a constitutional watchdog – and so is referred to as a non-executive President. Nearly all political scientists (even Americans) agree that parliamentary systems work best, and nearly all Australian republicans agree that we want that sort of system. That is why we are described as minimalists—we don’t want the American system.

Yet nearly all of the republican constitutions proposed in Australia have sought to make a minimal change to the system by making minimal changes to the existing words, even where these words are ridiculous. The proposals generally include a section saying ‘executive power is vested in the President’.  This is a very strange thing to say if we are trying to create a non-executive President, and a parliamentary executive.

As Donovan said, it is not necessarily a dangerous thing to say. The conventions of responsible government are well understood by the participants in the system and that is not going to change if we became a republic. A President who tried to exercise the PM’s powers, at least without the approval of the majority of MPs, would find s/he had no money, because s.83 will still say that no money can be spent until it has been ‘appropriated’ by Parliament. This is what made the Kings and Queens of England, and Governors of Canada and New Zealand in the mid-1800s, realise they could no longer exercise real power themselves.

The danger may seem theoretically greater if we had a President directly elected by the people. The President, some claim, would have a more direct ‘mandate’ than the PM. But Iceland, Ireland, Austria and Portugal all combine direct election with a parliamentary executive and none of their Presidents have ever forgotten the limited nature of their role. The worst thing said (and only rarely) about any of their Presidents is that some of their speeches have been too ‘political’—the same allegation made about Sir William Deane. That sort of behaviour by a President or Governor-General may make some people go ‘tut-tut’, but it hardly shakes the system to its roots. It may even produce a more lively public awareness of important issues.

Having conceded that point, to say executive power is vested in the President when it is not intended to be is, I insist, strange—even silly. It has nothing to do with ‘models’ or with the alleged ‘danger’ of a directly-elected President—it will be equally as silly whether we opt, in the end, for a directly-elected President or for one selected by Parliament. It is a continuation of 19th-century Colonial Office drafting practice when the truth about executive power could not be told in Constitutions because it seemed disrespectful of the Queen. Australians speak more directly than that, and we can draft a Constitution that speaks plainly too. To avoid the traditional silliness, it is not necessary to engage in the exercise that has worried so many experts, to try to codify every last convention. All that is necessary is to have one section that says ‘The President appoints and, where necessary, dismisses Ministers under the conventions of responsible government’ – to acknowledge the conventions exist without spelling out every rule and circumstance – and another section that says ‘the executive power of the Commonwealth is vested in the Ministers and is exercised under their directions and according to law by the Public Service and other instrumentalities of the Commonwealth’.

We are, today, able to write a set of rules that describe how the system works in plain English rather than using the grovelling colonial language of the 19th century.

 
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