Australian Financial Review August 21, 1999 The king is dead; long live the king Capital Idea, By Brian Toohey The full horror of what Australians are being asked to approve at November's republican referendum can only be appreciated by reference to the text of the proposed alteration to the Constitution. According to the new section 63, the President will be able to appoint as many deputies as he or she likes. And what presidential powers will be exercised by the deputies? The answer, as is the case with so much of the proposed new constitution, is anything the President "thinks fit". Perhaps one deputy could be kitted out in a fetching new uniform as commander-in-chief of the armed forces under the proposed section 68. Alternatively, a deputy may simply be required to live full time at Admiralty House on the Sydney Harbour foreshore and serve in a more diverting capacity "during the pleasure of the President", as the ,Constitution Alteration (Establishment of Republic) 1999 bill so quaintly puts it in section 63. Those who find the prospect of a puffed-up president is bad enough, without half a dozen deputies swanning about the place, can probably relax. The existing Constitution already gives the Governor-General the power to appoint deputies and none has been appointed. And any republican deputies will only be allowed to raid the presidential cellar "until the Parliament otherwise provides". In the reassuring interpretation of the referendum bill, all that is really happening is that the existing constitutional powers granted to the Governor-General are being transferred to the President. Admittedly, some powers are being reinforced and others qualified, but the comforting message is that the detail doesn't matter - the referendum is merely about replacing the Queen with an Australian head of State. Yet those who notice the detail could be excused for concluding that the essential thrust of the referendum bill is to maintain a monarchical constitutional structure which was already outdated in the 19th century, let alone appropriate for the 21st century. Under the Constitution, the monarch/Governor-General sits over the top of the Parliament and the Cabinet. Despite its republican title, the constitutional amendment bill retains much of this monarchical structure. Section 58, for example, gives the President the right to withhold assent to a bill which has passed both houses of Parliament. The President also has a right to recommend amendments. This right is in the Constitution and has never been exercised. But why leave the option there? Why not state bluntly that a bill shall become law in a 21st century democracy once it has passed Parliament? One reason for not doing so is that voters may like the idea of a presidential veto over bills which a government has pushed through against strong public opposition. Or perhaps voters want presidents to reject bills, say on euthanasia or the legalisation of marijuana, which they find morally repugnant. Although this is presumably not the intention of the framers of the amendments, the language is sufficiently ambiguous to encourage a president who wanted to exercise a veto in line with sentiments expressed on tabloid radio. According to the new section 58, the President's discretion will be subject to the Constitution. And a new section 59, in the chapter on the executive government, says the President shall act on the advice of ministers. But it is not clear if this includes advice to assent to bills because the veto power under section 58 relates to the section dealing with presidential powers in regard to Parliament. A similar problem arises at the start of the proposed constitutional amendments. The meaning seems plain enough - "the executive power of the Commonwealth is vested in the President..." In line with the existing Constitution, the President will be advised by a Federal Executive Council comprising ministers "chosen and summoned by the President" and holding office "during the pleasure of the President" . If executive power is vested in presidents who can hire and fire ministers at their pleasure, this would not seem to leave a lot of room for Cabinet government. The new Constitution tries to get around this problem by inserting a sentence, the first half of which says that the President "shall act on the advice of the Federal Executive Council, the Prime Minister or another Minister of State". However, the second half of this sentence undoes much of the first half by stating that the President "may exercise a power that was a reserve power of the Governor-General in accordance with the constitutional conventions relating to the exercise of that power". At the very least, this immediately introduces an exception to the statement that the President "shall act" on the advice of ministers. Although no-one really knows what is encompassed by the unwritten reserve powers, they now seem to include the power to sack a government despite ministerial advice to the contrary. Nor does it appear that the President is precluded from dissolving Parliament against ministerial advice. The explicit reference to the reserve powers greatly bolsters the position of the President in the proposed new Constitution. There is no mention of reserve powers in the existing Constitution - their exercise being constrained only by a set of conventions. But these can easily be ignored, as occurred when the then Governor-General, Sir John Kerr, sacked the Whitlam Government in 1975. One of the fundamental conventions which supposedly existed in 1975 was that a governor-general should not sack a prime minister who enjoyed majority support in the House of Representatives. But Kerr had no trouble tossing this convention overboard. Although it has received scant attention to date, a clause in the new Constitution would seem to enhance the power of presidents to decide that the conventions mean whatever they like. Clause 7 of schedule C says the enactment of the referendum amendments "does not prevent the evolution of the constitutional conventions, including those relating to the exercise of the reserve powers". The unwritten conventions certainly "evolved" at Kerr's behest. So long as both the conventions and the reserve powers remain unspecified in the Constitution, clause 7 would seem an open invitation for a president to grab further power at the expense of the people's elected representatives. It is a strange way to become a republic in which sovereignty is supposed to be vested in the people rather than a monarchical figure who can exercise powers which would have been the envy of King Charles 1. © This material is subject to copyright and any unauthorised use, copying or mirroring is prohibited. ------------------------------------------------------- RecOzNet2 has a page @ http://www.green.net.au/recoznet2 and is archived at http://www.mail-archive.com/ To unsubscribe from this list, mail [EMAIL PROTECTED], and in the body of the message, include the words: unsubscribe announce or click here mailto:[EMAIL PROTECTED]?Body=unsubscribe%20announce This posting is provided to the individual members of this group without permission from the copyright owner for purposes of criticism, comment, scholarship and research under the "fair use" provisions of the Federal copyright laws and it may not be distributed further without permission of the copyright owner, except for "fair use." 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