'Powers of the Head of State' by Michael Crommelin in (2015) 38(3)
Melbourne University Law Review 1118-1139
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The proposed law to alter the Constitution to establish the Commonwealth of Australia as a republic did not attempt to identify and define the powers of the head of state. Instead, it provided for the President to assume, essentially unchanged, the powers conferred by the existing Constitution on the Queen and the Governor-General. Those powers have never been clearly identified and defined. Their scope depends heavily on constitutional conventions. This article argues that reliance on constitutional conventions is misplaced and that any future proposal to establish a republic must specify the powers of the President as well as the method of appointment to that office.
Crommelin concludes -
Meeting the challenge of identification and definition of the powers of the
head of state in a republican constitution requires explicit classification of
those powers according to their manner of exercise.
The formal powers of the Governor-General are uncontroversial.
They
should be conferred directly on the President.
The powers conferred on the Governor-General in Council are also relatively straightforward.
There is no reason to suppose that, upon the change
from monarchy to republic, the effective operation of the legislative, executive
or judicial branches of the Commonwealth would be increased by providing
discretionary authority to the President in the exercise of any of these powers.
Accordingly, they should be conferred on the President in Council.
Some of the powers of the Governor-General that are exercisable only on
Ministerial advice should also be conferred on the President in Council.
The executive power of the Commonwealth should be vested in the President (if vesting is deemed necessary) and declared to be exercisable by the President in Council, together with the command in chief of the naval and military forces of the Commonwealth, the transmission of a message to the House of
Representatives or Senate recommending the purpose of an appropriation,
and the assent to a proposed law passed by the House of Representatives and
the Senate.
Other powers of the Governor-General that are exercisable only on ministerial advice should be conferred on the President and declared to be exercisable only in accordance with the advice of the Prime Minister.
These include
the selection, summoning and dismissal of members of the Federal Executive
Council and the allocation of portfolios to Commonwealth Ministers.
Two further powers of the Governor-General which may currently confer
discretionary authority would require special treatment. First, the President in
Council rather than the President should exercise the power to convene a
joint sitting of the members of the House of Representatives and the Senate
after a double dissolution under s 57 of the Constitution.
The jurisdiction of
the High Court to determine whether the requirements of s 57 of the
Constitution
have been satisfied in relation to a proposed law enacted at a joint
sitting is sufficient to protect the constitutional integrity of the deadlocks
procedure without any need to confer discretionary authority on the President. Secondly, the President should be required to submit a proposed law for the alteration of the
Constitution to referendum under s 128 of the
Constitution after its passage by Parliament, whether by each House or by one House
twice, as a corollary of the fact that s 128 allows such a proposed law to
originate in either House.
Then there would be no need to confer discretionary authority on the President.
In my opinion, only six reserve powers should be conferred on the President.
They are the powers of appointment of the Prime Minister, dismissal of
the Prime Minister, summoning Parliament, prorogation of Parliament,
dissolution of the House of Representatives, and dissolution of the Senate and
the House of Representatives simultaneously under s 57 of the
Constitution.
The exercise of each of these powers in particular circumstances poses a threat
to our system of government sufficient to justify the exercise of discretionary
authority of the President in fulfilment of a duty to uphold the
Constitution.
Both principle and pragmatism demonstrate that reliance on constitutional
conventions is more likely to hinder than help the identification and definition of the reserve powers of the head of state. Any inclination to perpetuate
the Barton approach should be firmly resisted. Instead, the
Constitution should simply state that the President has a duty to uphold the institutional
integrity of the Constitution, including the principle that a government must
have the confidence of the House of Representatives.
