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Powers of the Head of State of Australia and South Africa.
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Number 24, 1997-98 ISSN 1328-8016

Powers of the Head of State of Australia and South Africa This Research Note provides a brief comparative outline of the major powers written into the constitutions of the Commonwealth of Australia and the Republic of South Africa in respect to the Head of State.1

The 1996 Constitution of the Republic of South Africa has been selected for this comparative outline because it is one of the world's newest constitutions, it is notable for the plain language in which it is written and it evolved through a great deal of inter-party debate and public discussion. It is also one of the most liberal in the world, outlawing the death sentence and racial discrimination, and guaranteeing, inter alia, rights for homosexuals and the right to take industrial action.

Major Powers of the Head of State of the Commonwealth of Australia It should be recognised that the expression 'Head of State' is not found in the Australian Constitution. On a plain English reading of the Constitution the Queen is the Australian Head of State and acts through her representative, the Governor-General. However, it should be recognised that there is debate as to whether the Governor-General is the Head of State or the Queen is the Head of State.2

The powers accorded to the Governor-General in the Constitution are considerable. The Governor-General may:

• exercise such powers and functions of the Queen as she may be pleased to assign him or her (section 2)

• appoint such times for holding the sessions of the Parliament as he or she thinks fit, prorogue the Parliament, and dissolve the House of Representatives (sections 5 and 28)

• if there is no President of the Senate, or if the President is absent from the Commonwealth, notify the Governor of a State of a vacancy in that State's Senate representation (section 21)

• issue writs for House of Representatives elections (sections 32 and 33)

• recommend the appropriation of revenue or money (section 56)

• dissolve both Houses of the Parliament in the event of a disagreement between the Houses and, if the election fails to resolve the deadlock, convene a joint sitting of both Houses (section 57)

• assent, withhold assent, reserve for the Queen's pleasure, or return with recommendations for amendment, a law passed by both Houses of the Parliament (section 58)

• exercise, as the Queen's representative, the executive power of the Commonwealth (section 61)

• appoint and dismiss members of the Federal Executive Council (section 62)

• establish departments of State, appoint and dismiss Ministers, and direct what offices Ministers shall hold (sections 64 and 65)

• command the armed forces (section 68)

• appoint and, on address from both Houses of the Parliament, remove High Court Justices and other Justices of a court created by the Parliament (section 72)

• appoint members of the Inter-State Commission (section 103)

• with the Queen's approval, appoint deputies to exercise his or her powers and functions (section 126), and

• submit a referendum proposal to the electors if it is the subject of a

deadlock between the Houses of Parliament (section 128).3

Major Powers of the Head of State of the Republic of South Africa The President of South Africa is both the Head of State and head of the National Executive (the Cabinet). The President is elected from the members of the National Assembly. Upon election the President ceases to be a member of the National Assembly and takes office by swearing (or affirming) faithfulness to the Republic and obedience to the Constitution. The President may not serve for more than two consecutive terms.

The President may be removed either by a vote of no confidence in the National Assembly by simple majority, in which case the Cabinet and Deputy Ministers must resign (section 102) or, in the case of serious violations of the Constitution or serious misconduct, by a resolution adopted by two thirds of the members of the National Assembly (section 89).

Together with the Cabinet the President is given responsibility for implementing national legislation, developing and implementing national policy, co-ordinating the functions of state departments and administrations and preparing and initiating legislation (section 85).

The powers of the South African President include the power to:

• appoint, assign the powers of and dismiss the Cabinet members (section 91)

• call and set dates for elections for the National Assembly (section 49)

• summon Parliament, the National Assembly or the National Council of Provinces to extraordinary meetings to conduct special business (sections 42, 51 and 63)

• dissolve the National Assembly (section 50)

• speak (but not vote) in the National Assembly (section 54)

• assent to and sign Bills passed according to the Constitution (sections 79 and 84)

• assent to Bills amending the Constitution (subject to procedural requirements— sections 84 and 74)

• proclaim national referenda in terms of an Act of Parliament (section 84)

• If the President has reservations about the constitutionality of a Bill s/he may refer it to the National Assembly for reconsideration and may subsequently refer it to the Constitutional Court for a decision on its constitutionality (sections 79 and 84)

• appoint the President and Deputy President of the Constitutional Court and the Chief Justice and Deputy Chief Justice of the Supreme Court of Appeal (section 174)

• remove a judge from office (upon adoption of a resolution to this effect which has been passed with the requisite majority section 177)

• appoint members of the Judicial Service Commission (section 178)

• on the recommendation of the National Assembly, appoint, suspend or remove the Public Protector, the Auditor-General and members of the Human Rights Commission, the Commission for Gender Equality and the Electoral Commission (sections 193 and 194)

• appoint a National Commissioner of the police service, a head of the intelligence service and a civilian inspector of all intelligence services (section 207 and 209)

• appoint and remove members of the Financial and Fiscal Commission (section 221)

• appoint commissions of inquiry (section 84)

• appoint ambassadors, plenipotentiaries, diplomatic and consular representatives, and receive and recognise foreign diplomatic and consular representatives (section 84)

• pardon or reprieve offenders and remit any fines, penalties or forfeitures (section 84)

• confer honours (section 84)

• determine the national anthem of the Republic by proclamation (section 4)

• inform Parliament when the defence force is employed in co-operation with the police service in defence of the Republic or in fulfilment of an international obligation (section 201), and

• act as Commander-in-Chief of the defence force and declare a state of national defence (sections 202 and 203).

(Note: From 10 May 1994 until 30 April 1999 the President's powers are subject to various restrictions which require him or her to consult with Executive Deputy Presidents. These Executive Deputy Presidents are appointed by the President, and there are various criteria which must be met in their appointment.)

Conclusion There are numerous similarities in these two lists, however it should be noted that, in Australia's case, the powers, including the reserve powers, are exercised in the context of conventions which have evolved over time. The system of responsible government means that many of the Governor-General's nominal powers are unused and others are exercised subject to ministerial advice. For example section 128 gives the Governor-General power to refer a Bill altering constitutional provisions to the electorate. Despite having the apparent power to make such a

referral it has never been made without the Government's agreement.

In South Africa's case, the conventions determining the exercise of power have not had long to evolve.4 The South African Constitution nominates particular procedural restrictions on some powers, or confers them on the President to act on the advice of the National Assembly. The President, in acting both as Head of State and Head of Government, has a much more significant role than our Governor-General and the powers conferred are constitutionally entrenched and may be said 'belong' to the elected President in the fullest sense. In some cases the Governor-General exercises similar powers to those conferred on the President but the formers' powers are conferred by legislation, and are not constitutionally entrenched. The day-to-day role of the Governor-General is also more limited and less tightly defined than the President's.

1. This Note deals with the written powers in the Australian Constitution. See Susan Downing, 'The Reserve Powers of the Governor-General', Research Note No. 25, Information and Research Services, Department of the Parliamentary Library, Canberra, 23 January 1998, for a discussion of the implied powers. 2. See, for instance, Ian Ireland, 'Who is the Australian Head of State?', Research Note No. 1, Parliamentary Research Service, Department

of the Parliamentary Library, Canberra, 28 August 1995. 3 This list was compiled with information from the exhaustive listing in An Australian Republic: the options-the appendices, Report of the Republic Advisory Committee, AGPS, Canberra, 1993, p. 242. 4. The South African Constitution was adopted by the Constitutional Assembly on 8 May 1996, and was amended on 11 October 1996.

Ian Ireland and Kirsty » « Magarey » Law and Bills Digest Group Information and Research Services

23 January 1998

Phone: (02) 6277 2438 Fax: (02) 6277 2407

Views expressed in this Research Note are those of the author and do not necessarily reflect those of the Information and Research Services and are not to be attributed to the Department of the Parliamentary Library. Research Notes provide concise analytical briefings on issues of interest to Senators and Members. As such they may not canvass all of the key issues. Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.

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