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1999
THE
PARLIAMENT OF
THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
CONSTITUTION
ALTERATION
(ESTABLISHMENT OF REPUBLIC)
1999
EXPLANATORY
MEMORANDUM
(Circulated with the authority of
the
Attorney-General, the Hon Daryl Williams AM QC
MP)
ISBN: 0642 404291
This explanatory memorandum outlines the purposes and results of the 1998 Constitutional Convention, and the main elements of the Bill, before setting out notes on the provisions of the Bill.
1.1 The Constitutional Convention met in February 1998 to consider whether Australia should become a republic, which republic model should be put to voters to consider against the present system of government, and in what timeframe any change might take place. The Convention supported the adoption of a republican system of government based on a ‘bipartisan appointment of the President model’ and recommended that the model, and other related changes, be put to the people at a constitutional referendum.
1.2 It resolved that the referendum should be held in 1999 and, if the proposal for change was approved, that the republic should come into effect by 1 January 2001.
1.3 It further resolved that, while it would be desirable for republican arrangements to commence simultaneously in the Commonwealth and all the States, not all States may wish or be able to move to a republic within the timeframe established by the Commonwealth. On that basis, the Convention resolved that the government should consider whether specific provision would be required to enable States to retain their current constitutional arrangements.
1.4 The Prime Minister confirmed at the close of the Convention that, if re-elected, the government would put the Convention’s preferred model to a referendum in 1999. This Bill generally implements recommendations of the Convention on the republic model.
1.5 The Constitution of the Commonwealth of Australia is contained in s.9 of the Act of the United Kingdom known as the Commonwealth of Australia Constitution Act 1900 (in this explanatory memorandum that Act is called ‘the Constitution Act (UK)’). The Constitution Act (UK) contains a preamble but there is no preamble to the Constitution proper. The Convention resolved that the existing preamble to the Constitution Act (UK) should remain intact.
1.6 The Convention also resolved that the Constitution should include its own preamble. It made this recommendation in the context of recommending that Australia adopt a republican system of government. However, the Constitution could be amended so as to include a preamble even if Australia were not to become a republic.
1.7 It is not necessary to alter or repeal the preamble or the covering clauses of the Constitution Act (UK) in order to include a new preamble in the Constitution, or to establish Australia as a republic.
1.8 If in the future it was considered desirable to alter or repeal the preamble or the covering clauses of the Constitution Act (UK), this could be done by the Commonwealth Parliament at the request of the States under the Australia Acts, or by a further constitutional referendum.
1.9 The attachment to this explanatory memorandum sets out the Convention communique. Paragraph numbers have been added for ease of cross-referencing to the discussion below.
1.10 The Bill would establish an Australian republic based on the bipartisan appointment of the President model and other related changes to the Constitution supported by the Convention.
1.11 The Bill would remove most of the existing references to the monarchy from the Constitution and establish an office of President. In so doing, it would convert Australia’s system of national government from a constitutional monarchy to a republic. The President would be Australia’s head of state.
1.12 Schedule 1 to the Bill relates specifically to the office of President and would cover the following matters.
The
Constitution would entrench elements of a mechanism for choosing the President.
The mechanism has four main elements:
a) a committee invites and considers nominations from the public and gives a report on the nominations to the Prime Minister;
b) following consideration of the report of the committee, the Prime Minister moves in a joint sitting of the Commonwealth Parliament that a named Australian citizen be chosen as President;
c) the Leader of the Opposition seconds the Prime Minister’s motion; and
d) a two-thirds majority of the members of the Commonwealth Parliament approves the Prime Minister’s motion.
The Constitution would require the nominations committee to be established and operate as provided by the Parliament.
Only
a person who is an Australian citizen and qualified to be a member of the House
of Representatives can be President. A person cannot be President if he or she
is a member of the Commonwealth Parliament or a State Parliament or Territory
legislature, or is a member of a political party.
Before
taking office, a person chosen as President is required to make an oath or
affirmation of office.
The
President is Australia's head of state and the executive power of the
Commonwealth vests in the President. The President's powers are the same as the
Governor-General’s and the constitutional conventions that applied to the
exercise of the Governor-General’s powers apply to the exercise of the
President’s powers.
The
term of office of a President is 5 years.
The
President may be removed by the Prime Minister. However, the Prime Minister
must seek the approval of the House of Representatives for the removal within 30
days unless an election is held. A President who has been removed is eligible
for re-appointment, through the mechanism for choosing a President set out in
the Constitution (and described briefly above).
1.13 Schedule 2 to the Bill contains consequential amendments of the Constitution that would be required to alter Australia’s system of national government from a constitutional monarchy to a republic. They are primarily concerned with the removal of monarchical references from the Constitution.
1.14 As noted in the Outline above, the Constitutional Convention met to consider whether Australia should become a republic and, if so, which republic model should be put to voters to consider against the present system of government. While it recognised that consequential amendments of the Constitution would be required to establish a republic, it did not have the opportunity or resources to consider these in detail. It recommended simply that the Commonwealth Government and Parliament consider the consequential and transitional matters which would need to be addressed (and it mentioned several of these in particular).
1.15 Most consequential and transitional issues can be addressed by ordinary legislative or administrative action. For example, existing monarchical references in Commonwealth legislation can be amended by new Commonwealth legislation. The new legislation can also ‘save’ the effect of action under the earlier legislation.
1.16 The Constitution should not include provisions having only ephemeral relevance if those can be located elsewhere. The Constitution must endure. The Constitution should not include provisions which limit its relevance to future generations except where that is unavoidable.
1.17 Schedule 2 to the Bill removes most monarchical references from the Constitution. Those references comprise references to the Queen, the Governor-General and the Crown. Some provisions of the Constitution need to be repealed and replaced by other provisions, and those replacement provisions do not necessarily go in the same place. For example, existing provision for the payment of remuneration to the Governor-General made by s.3 of the Constitution would be replaced by provision for the payment of remuneration to the President, but the latter provision would be contained in proposed s.61 of the Constitution (see Schedule 1). Spent provisions of the Constitution would be removed only where they relate to the monarchical system of government.
1.18 The present Constitution contains several references to ‘the President’, meaning the President of the Senate. Schedule 2 would change those references to ‘the President of the Senate’ in order to avoid any confusion with references to the President of the Commonwealth.
1.19 Schedule 3 to the Bill would add a schedule to the Constitution (Schedule 2 to the Constitution) setting out provisions which would facilitate the transition from constitutional monarchy to republic with minimum disruption to existing institutions and arrangements. Schedule 2 to the Constitution would make provision for those transitional matters which must be addressed in the Constitution.
1.20 Schedule 2 would make provision in relation to the continuity of existing institutions; and the continuity of legislative, executive and judicial action undertaken before conversion to a republic.
1.21 It would make provision for choosing the first President before the commencement of the republic on 1 January 2001, and for enacting legislation in the ‘transitional’ period, so that the first President may take office on the commencement of the republic.
1.22 It would also make provision in relation to the continuity of State links with the Crown in any State that has not severed those links by 1 January 2001; and in relation to the continuity of Australia’s federal system, including its system of law.
1.23 Finally, it would make provision in relation to the constitutional conventions governing the exercise by the President of the ‘reserve’ powers.
2.1 The Government anticipates that $19.5m will be expended on proposed public information activities: $4.5m on a balanced public education programme and $15m on Yes/No advertising campaigns conducted by committees drawn from the delegates to the Constitutional Convention.
2.2 It is estimated that the AEC’s costs for conducting the referendum will be $63m.
2.3 The cost of consequential changes (eg, changes to military insignia and coinage) would depend on the nature of those changes, the proposed timetable for transition and the extent to which the changes may be absorbed within existing funding arrangements. No estimate of these costs has been made.
2.4 The cost of running the office of President could be expected to equate broadly with the costs of running the office of the Governor-General. The cost of appointing a President under the proposed arrangements has not been estimated.
3.1 The Bill comprises 3 technical clauses and 3 schedules. Clause 1 provides for the short title of the Bill. Clause 2 provides for the commencement of the Bill’s provisions: clauses 1, 2 and 3, and Schedule 3, would commence on royal assent; Schedules 1 and 2 would commence at 3.00 pm in the Australian Capital Territory on 1 January 2001. Clause 3 provides that the Constitution is altered as set out in Schedules 1, 2 and 3.
3.2 Schedule 1 contains amendments of the Constitution relating to the office of President. Schedule 2 contains amendments of the Constitution that are consequential on the establishment of a republican form of government for the Commonwealth of Australia. Those amendments involve primarily the removal of monarchical references. Schedule 3 contains transitional provisions in relation to the establishment of the republic.
4.1 Items 1 and 2 of Schedule 1 to the Bill repeal ss. 59 and 60 of the Constitution. Sections 59 and 60 are discussed in more detail in the description below of Schedule 2 to the Bill, but essentially they are obsolete under Australia’s existing system of government and would be redundant in a republic.
4.2 Item 3 of Schedule 1 repeals ss. 61, 62 and 63 of the Constitution and substitutes new provisions dealing with the executive power of the Commonwealth and the office of President. The new constitutional provisions are discussed below.
5.1 The purposes of proposed s.59 are to:
a) establish the President as Australia’s head of state and repository of the executive power of the Commonwealth;
b) preserve the Federal Executive Council established by s.62 of the Constitution; and
c) apply the constitutional conventions relating to the exercise by the Governor-General of the ‘reserve’ powers to the exercise by the President of those powers.
5.2 Proposed s.59 establishes elements of the Convention model (in particular, the ‘definition of powers’ element). It gives effect, in whole or in part, to paragraphs 17, 26, 27 and 39 of the Convention communique.
5.3 Under republican arrangements, the executive power of the Commonwealth currently vested in the Queen under s.61 of the Constitution would cease to be vested in her. The office of Governor-General would cease to exist (the Governor-General exercises the executive power under s.61). Under proposed s.59, the executive power of the Commonwealth would vest in, and be exercisable by, the President, who would be Australia’s head of state.
5.4 Section 62 of the Constitution establishes the Federal Executive Council as a conduit for advice to the Governor-General on the exercise of his or her powers. Its principal functions are to receive advice and approve the signing of formal documents such as regulations and statutory appointments. Proposed s.59 preserves the Executive Council and allows for the continuation of its current role in relation to the President.
5.5 Proposed s.59 provides expressly for the President to act on the advice of the Government of the day in accordance with the principle of responsible government which governs the exercise of nearly all of the Governor-General’s powers. It provides that the President must exercise his or her ordinary powers in accordance with the advice of the Federal Executive Council, the Prime Minister or other Minister of State.
5.6 The only exception to this rule relates to the exercise of the ‘reserve’ powers (discussed below). Proposed s.59 provides that the constitutional conventions relating to the exercise of the reserve powers by the Governor-General will apply to the exercise of those powers by the President. This ensures that the conventions (including their capacity to evolve), which have developed in constitutional monarchies, do not cease to apply once links with the Crown are severed.
5.7 Upon the Commonwealth of Australia becoming a republic, the executive power of the Commonwealth would vest in the President; it would cease to vest in the Queen and would cease to be exercisable by the Governor-General. There would no longer be an office of Governor-General.
5.8 Proposed s.59 does not prevent the President exercising the executive power of the Commonwealth while absent from Australia. Traditionally, Governors-General do not exercise power when outside Australia. However, proposed s.63, which deals with arrangements for acting Presidents and Presidential deputies, would make it clear that the President is not so constrained.
5.9 At present, the Constitution confers some powers on ‘the Governor-General’ and others on ‘the Governor-General in Council’. The latter expression means the Governor-General acting with the advice of the Federal Executive Council.
5.10 References to the ‘President in Council’ will be substituted for references to the ‘Governor-General in Council’. This would preserve the present role of the Federal Executive Council. (The expression ‘President in Council’ would be defined elsewhere in the Constitution.)
5.11 The Queen is the head of state and the formal repository of executive power under the Constitution. The Queen does not, however, play a day-to-day role in the Commonwealth Government. Those few functions which the Queen does perform (for example, appointing the Governor-General) are performed in accordance with advice given by the Prime Minister.
5.12 The Governor-General, on the other hand, performs a range of functions. Apart from exceptional circumstances (discussed below), the Governor-General acts in accordance with the advice of Commonwealth Ministers. The reason for this is the principle of responsible government which is basic to the Westminster system of government and central to the Commonwealth Constitution. Under this principle, the Crown acts on the advice of its Ministers who are in turn members of, and responsible to, the Parliament. It is for this reason that s.64 of the Constitution requires Ministers to be, or become, members of Parliament.
5.13 There are a small number of matters in relation to which the Governor-General is not required to act in accordance with ministerial advice. The powers which the Governor-General has in relation to these matters are known as ‘reserve’ powers. There are probably only four reserve powers:
• to appoint the Prime Minister;
• to dismiss the Prime Minister;
• to refuse to dissolve the Parliament; and
• to force a dissolution of the Parliament.
5.14 In exercising a reserve power, the Governor-General ordinarily acts in accordance with established and generally accepted rules of practice known as ‘conventions’. For example, when appointing a Prime Minister under s.64 of the Constitution, the Governor-General must, by convention, appoint the parliamentary leader of the party or coalition of parties which has a majority of seats in the House of Representatives.
5.15 There can be circumstances, however, where there is no generally agreed convention to control the exercise of the Governor-General’s reserve powers. Such a situation arose in 1975 when the Governor-General, Sir John Kerr, dismissed the Prime Minister, Mr Whitlam, after the Senate failed to pass the Supply Bill for Mr Whitlam’s government.
5.16 Proposed s.59 would continue the reserve powers and apply the constitutional conventions to the exercise by the President of those powers. Proposed s.59 is intended to continue the existing potential for evolution of the conventions governing the exercise of the reserve powers. Proposed item 8 in Schedule 3 to the Bill makes it clear that this potential for evolution is unaffected by conversion to a republic.
5.17 Proposed s.59 is intended to preserve the existing status of the constitutional conventions as rules of practice rather than rules of law. It is not intended to make justiciable decisions of the President in relation to the exercise of the reserve that would not have been justiciable if made by the Governor-General.
6.1 The purposes of proposed s.60 are to:
a) establish a mechanism for choosing a President;
b) specify the qualifications of a person who may be chosen as President; and
c) require any person chosen as President to make an oath or affirmation of office.
6.2 Proposed s.60 establishes elements of the Convention model (in particular, the ‘appointment or election procedure’ and ‘qualifications for office’ elements). It gives effect, in whole or in part, to paragraphs 17, 24, 28, 40, 43, 53, 54, 55 and 56 of the Convention communique.
6.3 Proposed s.60 would include the following elements of the mechanism for choosing a President supported by the Convention:
a) motion by the Prime Minister, following consideration of the report of a committee established by the Parliament for the purpose of inviting and considering nominations, that a named Australian citizen be chosen as President;
b) seconding of the Prime Minister’s motion by the Leader of the Opposition;
c) approval of the Prime Minister’s motion (where seconded) by a two-thirds majority of the members of the Commonwealth Parliament.
6.4 Proposed s.60 would empower the Parliament to provide for the establishment and operation of a committee to invite and consider nominations.
6.5 Proposed s.60 provides that only an Australian citizen qualified to be, and capable of being chosen as, a member of the House of Representatives can be chosen as President. This imports the qualifications and disqualifications imposed by or under ss.34 and 44 of the Constitution (as amended by items 15, 18, 19 and 20 of Schedule 2 to the Bill). Under the rules presently in force, in order to be qualified to be a member of the House of Representatives, a person must have reached the age of 18 years and be eligible to vote in an election for the Senate or the House of Representatives.
6.6 A person cannot be chosen as President if he or she is a member of the Commonwealth Parliament or a State Parliament or Territory legislature, or a member of a political party.
6.7 Proposed s.60 includes provision that the actions of a President who was otherwise duly chosen in accordance with the section are not invalidated merely because the President was not qualified to be chosen as President.
6.8 Proposed s.60 requires a person chosen as President, before taking office, to make an oath or affirmation of office. The oath and affirmation of office are set out in a proposed new schedule to the Constitution and incorporate a promise of allegiance and service to Australia and its people.
6.9 It is envisaged that Parliament will enact legislation dealing with the composition and functions of the nomination committee. Proposed s.60 (in combination with s.51 (xxxix)) enables all details of the committee’s size, composition and functions to be dealt with in ordinary legislation. This complies with the Convention model and provides the necessary flexibility for the composition, functions and operations of the committee to develop over time. The constitutional reference to the leader of the Opposition is not intended to create any impediment to the appointment of a President in the unlikely event that the Parliament would not recognise a leader of the Opposition.
6.10 Proposed s.60 requires a person chosen as President to be qualified to be, and to be capable of being chosen as, a member of the House of Representatives. Any change to parliamentary qualification provisions (such as s.44 of the Constitution) would then have the effect of changing the qualifications for being chosen as President (as anticipated by the Convention). However, unlike a member of Parliament, a person chosen as President cannot be a member of the Commonwealth Parliament or a State Parliament or Territory legislature, or a member of a political party.
6.11 While the constitutional qualifications for members of parliament apply at all times they are members, the qualifications of a President would apply only at the time the President is chosen. It would be inappropriate to provide for the ‘automatic’ disqualification of the President, which might also require a judicial determination. Instead, the question whether grounds exist which render the President unsuitable to hold or continue in office is a matter for the Prime Minister to determine, in the light of the proposed removal provision (see below). The inclusion of certain specified grounds of disqualification might also implicitly fetter the Prime Minister’s otherwise unqualified power to remove.
6.12 While there is little risk that a person otherwise duly chosen as President was not in fact qualified to be chosen, it is prudent to make provision for this exceptional situation and ensure that the actions of an invalidly chosen President are not themselves invalid on that account. Proposed s.60 does not, however, purport to affect the discretionary power of a Prime Minister to decide that an invalidly chosen President should not continue to hold office.
6.13 The presidential oath or affirmation that would be inserted in a new schedule (Schedule 1) to the Constitution combines an oath of office and an oath of allegiance. The Convention recommended that the President should swear or affirm an oath of allegiance and an oath of office and suggested forms of words on which each oath might appropriately be modelled. In the case of the oath of allegiance, the form of words that was recommended is the pledge required by the Australian Citizenship Act 1948. It seems doubtful whether a citizenship pledge provides an appropriate model for an oath of office and loyalty required to be taken by a person who is necessarily an Australian citizen and is about to become the head of state. The oath and affirmation in the Bill combine the important features of the various forms of words suggested by the Convention, in a simple, dignified oath or affirmation.
7.1 The purposes of proposed s.61 are to:
a) specify that the term of office of a President is 5 years;
b) permit a person to serve more than one term as President;
c) specify that the term of an incoming President normally begins at the end of the term of office of the outgoing President;
d) provide for the special cases when there is no outgoing President, eg because the President has resigned or died in office, or the outgoing President continues in office after his or her term has ended because no new President has been chosen;
e) specify the method by which a President may resign; and
f) provide for the remuneration of the President.
7.2 Proposed s.61 establishes elements of the Convention model (in particular, the ‘term of office’ element). It gives effect, in whole or in part, to paragraphs: 17, 29, 43 and 46 of the Convention communique.
7.3 Proposed s.61 provides for a term of 5 years, and that a person may serve more than one term as President. Normally a President’s term of office would commence at the end of the term of office of an outgoing President. However, the outgoing President may continue in office after his or her term expires to cover any hiatus (eg where the procedure for choosing a new President had not been completed before that term expires or an incoming President dies before taking office and a new President must be chosen).
7.4 In circumstances where for some reason the term of office of the new President does not commence at the end of the term of the previous President (eg, the previous President died or resigned), the new President takes office on the day after making the oath or affirmation of office.
7.5 Proposed s.61 provides for the President to resign in writing delivered to the Prime Minister.
7.6 Proposed s.61 provides for the Parliament to fix the President’s remuneration, subject to the limitation that it may not be altered during a President’s term of office.
7.7 The Governor-General is appointed by the Queen on the advice of the Prime Minister. The appointment is at the Queen’s pleasure but, by convention, the usual term is 5 years, and a Governor-General may accept an extension of the term. The Convention may have had this practice in mind in recommending that a President serve a term of 5 years. The Convention also considered that a President who had been removed from office but whose removal had not been approved by the House of Representatives should be eligible for re-appointment. It did not otherwise deal with the issue of re-appointment.
7.8 The Bill provides for 5-year terms and permits a person (including a President who was removed from office, whether or not the removal was approved by the House of Representatives) to serve more than one term as President.
7.9 The Constitution contains resignation provisions for members of Parliament and judges. Corresponding provision is made for the office of President. It avoids any doubt about how or when the resignation of a President is effected.
7.10 Under s.3 of the Constitution the Governor-General’s salary cannot be altered (although other payments can be). The policy justification for s.3 is to avoid any possibility of financial pressure being placed on Governors-General which could affect their impartiality. There is no reason to depart from the existing rule in the case of the remuneration of a President. However, if a person serves another term as President, proposed s.61 would not prevent an alteration being made to the remuneration for the subsequent term. Also, if a President continues in office after the end of his or her term (eg, because a new President has not yet been chosen) s.61 would not prevent an alteration being made to the President’s remuneration during that additional period of service as President.
8.1 The purposes of proposed s.62 are to:
a) empower the Prime Minister to remove the President; and
b) require the Prime Minister to seek the approval of the House of Representatives within 30 days of removing the President unless an election is held.
8.2 Proposed s.62 establishes elements of the Convention model (in particular, the ‘dismissal procedure’ element). It gives effect, in whole or in part, to paragraphs 17 and 25 of the Convention communique.
8.3 Proposed s.62 empowers the Prime Minister to remove the President by signed instrument with immediate effect. (An acting President then takes office automatically - see proposed s.63.)
8.4 Proposed s.62 requires the Prime Minister to seek the approval of the House of Representatives for the removal of the President within 30 days unless an election is held. The President would not be reinstated if the Prime Minister failed to obtain approval.
8.5 Under s.2 of the Constitution the Governor-General is appointed by the Queen, acting on the advice of the Prime Minister, and holds office during the Queen’s pleasure. A Governor-General is thus subject to removal by the Queen, acting on the advice of the Prime Minister, at any time. The Constitution does not specify any grounds for removal of the Governor-General. No Governor-General has been removed.
8.6 The situation under proposed s.62 would be similar to the existing situation. Proposed s.62 provides that the Prime Minister may remove the President, by signed instrument. The instrument would be effective as soon as it is signed.
8.7 The present Constitution does not make any express provision concerning the role of Parliament if the Queen were to remove a Governor-General on the advice of the Prime Minister. However, the Convention recommended that:
• Parliament be given 30 days in which to approve the removal by a Prime Minister of the President; and
• if Parliament fails to give its approval, this would constitute a vote of no confidence in the Prime Minister.
8.8 The Bill requires the Prime Minister to seek the approval of the House of Representatives for the removal of the President within 30 days. This ensures an opportunity for parliamentary scrutiny of the Prime Minister’s action. The only exceptions to the requirement to seek approval are where a general election for the House of Representatives follows the removal, either because the Prime Minister calls an election with the 30 day period or because the processes leading to an election are already in train at the time of removal. The latter is considered highly unlikely to arise in practice, and any decision to remove a President during an election period would need to be made with regard to caretaker conventions.
8.9 The Convention said a failure by the House of Representatives to ratify the Prime Minister’s decision to remove the President would constitute a vote of no confidence in the Prime Minister. It is highly unusual to have a vote of no confidence in a single Minister, particularly the Prime Minister. One consequence of a vote of no confidence in the Prime Minister might be loss of government. However, the Constitution is silent on the issue.
8.10 Proposed s.62 would require the Prime Minister to seek the approval of the House of Representatives for the removal of a President, but the President would not be reinstated if the Prime Minister failed to obtain that approval. The question of the sanction to apply for failure to obtain such approval is left for resolution in accordance with parliamentary processes, which must in turn develop within the broader constitutional framework.
9.1 The purposes of proposed s.63 are to:
a) provide for an acting President to take office automatically on the occurrence of a vacancy in the office of President;
b) provide for the Prime Minister to appoint an acting President if the President is incapacitated;
c) authorise the President to appoint a deputy or deputies (and in so doing confirm that the President may exercise the executive power while absent from Australia); and
d) specify that the provisions of the Constitution applicable to the President (except for ss. 60 and 61) apply to the acting President.
9.2 Proposed s.63 gives effect to paragraph 44 of the Convention communique.
9.3 Proposed s.63 provides for the longest serving State Governor available to act as President if the office of President becomes vacant, unless and until Parliament makes provision otherwise. However, if a State Governor has been removed from office as acting President by the current Prime Minister, the State Governor is not entitled to act as President.
9.4 Proposed s.63 would allow the Prime Minister to appoint an acting President only where the President is incapacitated, unless and until Parliament makes provision otherwise. Neither the incapacity nor the appointment of an acting President would give rise to a vacancy in the office of President.
9.5 Proposed s.63 applies to an acting President the provisions of the Constitution which apply to the President, except for proposed ss.60 and 61. Proposed s.60 deals with the selection of a President. Proposed s.61 deals with the term of office of a President (which is not relevant to an acting President) and remuneration of the President. Remuneration of an acting President is dealt with separately by proposed s.63.
9.6 Proposed s.63 empowers the President to appoint deputies, unless and until Parliament makes provision otherwise. In so doing, proposed s.63 confirms that the President may perform and exercise his or her functions and powers while absent from Australia.
9.7 Proposed s.63 gives the Parliament power to fix allowances for an acting President or deputy.
9.8 An acting President or deputy must take the oath or affirmation taken by the President, which is to be set out in a new schedule (Schedule 1) to the Constitution.
9.9 Present arrangements for dealing with the situation when the Governor-General is unavailable are governed by ss. 4 and 126 of the Constitution. Section 4 enables the Queen to appoint a person as administrator and s.126 enables the Queen to authorise the Governor-General to appoint deputies. When the Governor-General is absent from Australia, or if he or she were to die in office or become incapacitated or be removed from office, by convention the most senior State Governor is appointed as administrator. All State Governors have dormant commissions to act as administrator. If the Governor-General is in Australia but is temporarily unavailable, the practice is for the Governor-General to appoint a deputy to exercise specified powers or functions (although deputies are rarely called on to exercise powers or perform functions).
9.10 Proposed s.63 would reproduce most of the existing arrangements, which have proved satisfactory, and ensure that a replacement head of state has experience of similar duties at the State level. If some States retain links with the monarchy, there would be no necessary technical barrier to their governors acting as President. However, Parliament may make other provision for acting Presidents. This would enable Parliament to make interim arrangements for the period following adoption of a republican system of government, when one or more States may not have adopted republican forms of government. Alternatively, it would enable Parliament to make provision for a person other than a State Governor to act as President.
9.11 Implicitly, the circumstances in which the office of President may in fact become vacant (and the provision has an ‘automatic’ operation) are the death, resignation or removal of the President. Where the President is temporarily incapacitated the Prime Minister could appoint an acting President. In some cases, it may become necessary to remove a President who is incapacitated. The alternative approach, treating incapacity as giving rise to a vacancy in the office of President, would necessitate devising a mechanism for determining when a President had become so incapacitated as to be incapable of performing the duties of office and determining when the President was capable of resuming them. Instead of entrenching a complex mechanism in the Constitution, a decision on the incapacity of a President has in effect been left to the Prime Minister.
9.12 It is desirable that, to the extent possible, any provision for an acting President be self-executing, so that a suitable person takes office automatically. Particularly in the case where a President has been removed from office, where the constitutional provisions open up the possibility that the Prime Minister may also be deprived of office by the acting President if the Prime Minister fails to secure approval by the House of Representatives of the removal of the President, it is clearly essential that provision be made to ensure an acting President is in place.
9.13 It is intended, consistently with current practice, that a State Governor would not be ‘available’ to act as President unless the Governor, and the relevant State Government, agree that the Governor is available. Conversely, an acting President who was declared to be no longer ‘available’ (for whatever reason) would cease to act, whereupon the next most senior Governor available would be installed. It is, therefore, unnecessary to provide expressly for the ‘resignation’of an acting President.
9.14 Where absence from Australia or other foreseeable absence prevents the President from performing any functions, it is expected that the President would appoint (or would have appointed) a deputy or deputies.
9.15 This provision corresponds to s.4 of the Constitution in relation to the Governor-General. It is desirable to make clear that the provisions of the Constitution applicable to the President apply also to an acting President. However, those provisions which are clearly unsuitable to apply to the office of acting President are specifically identified.
9.16 This provision corresponds to s.126 of the Constitution in relation to the Governor-General. It is desirable to enable the President to have the same power to appoint deputies (on the advice of the government of the day) as the Governor-General does. As noted above, whereas at present an administrator is usually appointed when the Governor-General is absent from Australia, it is expected that a deputy or deputies would be appointed when a President is absent from Australia. Proposed s.63 would empower Parliament to make provision otherwise in relation to deputies.
9.17 Proposed s.63 would give the Parliament power to fix allowances payable to an acting President or deputy where appropriate. Where an acting President was a State Governor who would normally perform the full range of the President’s powers and functions, it could be expected that Parliament would take those factors into account in deciding whether to fix any allowances and their amount. If arrangements were made for persons other than a State Governor to be able to serve as deputies, Parliament would need to consider what remuneration was appropriate. In the case of deputies, Parliament might fix different allowances for different deputies depending on the nature of the powers and functions conferred and whether or not a deputy was entitled to remuneration in respect of any other Commonwealth office.
9.18 In view of the important function performed by an acting President or deputy of the President, it is appropriate that, whenever a person acts as President or a presidential deputy, the person take the same oath or affirmation of office that is taken by the President.
9.19 Proposed s.63 would not prevent the President making arrangements, similar to those currently made by the Governor-General, to be represented by an honorary aide-de-camp on ceremonial occasions when the President is unavailable.
10.1 Item 4 of Schedule 1 to the Bill would insert a new s.70A in the Constitution. Proposed s.70A would put beyond doubt that the executive prerogatives, prerogative immunities and proprietary prerogatives deriving from the royal prerogative, and currently enjoyed by the Crown in right of the Commonwealth and its agents, continue to be enjoyed by the Commonwealth following the severing of links with the Crown. However, the President will not enjoy the personal prerogatives of the Queen.
10.2 Item 4 gives effect to paragraph 45 of the Convention communique.
11.1 Item 5 of Schedule 1 to the Bill repeals the existing Schedule to the Constitution setting out the oath and affirmation of allegiance for members of Parliament required by s.42 of the Constitution. It substitutes a replacement schedule setting out:
(a) an oath or affirmation of allegiance for members of Parliament; and
(b) an oath or affirmation of office for the President.
11.2 The Convention made no specific recommendation in relation to the consequential amendment of the members’ oath or affirmation. However, the oath and affirmation both need to be altered so that a member of Parliament swears allegiance to Australia. The oath or affirmation in the Bill combines the elements of loyalty to Australia and its people, and a commitment to upholding Australia’s laws, while retaining the simplicity and brevity of the existing oath or affirmation.
11.3 The President’s oath or affirmation is discussed at paragraph 6.13 above.
12.1 Item 1 removes the current reference to ‘the Schedule’ in the table of contents which appears at the beginning of the Constitution. It replaces the reference with references to ‘Schedule 1 – Oaths and affirmations’ and ‘Schedule 2 – Transitional provisions for the establishment of the republic’ to reflect the amendments discussed above.
12.2 Section 1 of the Constitution vests the legislative power of the Commonwealth in the Commonwealth Parliament, consisting of the Queen, the Senate and the House of Representatives. Under a republican system of government, the President would become the head of state in whom the executive power of the Commonwealth would vest, and the Parliament would comprise the President, the Senate and the House of Representatives.
12.3 Item 2 therefore omits the reference to ‘Queen’ and substitutes ‘President’.
12.4 Section 2 provides for the appointment of the Governor-General by the Queen, the Governor-General’s exercise of power, and functions assigned to the Governor-General by the Queen. Under a republican system of government the office of Governor-General would cease to exist and s.2 would no longer be required. New provision vesting the executive power of the Commonwealth in the President and dealing with the appointment and powers of the President, and the removal from office of the President, would be placed in Chapter II of the Constitution.
12.5 Item 3 therefore repeals s.2.
12.6 Section 3 deals with the Governor-General’s salary. Section 3 would no longer be required under a republican system of government. Provision for the remuneration of the President would be made in s.61 of the Constitution.
12.7 Item 3 therefore repeals s.3.
12.8 Section 4 applies the provisions of the Constitution relating to the Governor-General to the Governor-General for the time being or to whomever the Queen appoints to administer the Commonwealth Government. With the abolition of the office of Governor-General, s.4 would no longer be required. New provision dealing with the acting President and presidential deputies would be made in s.63 of the Constitution.
12.9 Item 3 therefore repeals s.4.
12.10 Section 5 authorises the Governor-General to appoint the times for holding sessions of Parliament, to prorogue Parliament and to dissolve the House of Representatives.
12.11 Item 4 omits ‘Governor-General’ from s.5 and substitutes ‘President’.
12.12 Section 7 requires the names of senators chosen by each State to be certified by the State Governor to the Governor-General.
12.13 Item 4 omits ‘Governor-General’ from s.7 and substitutes ‘President’.
12.14 Section 15 requires the name of any senator appointed to fill a casual Senate vacancy to be certified by the State Governor to the Governor-General.
12.15 Item 4 omits ‘Governor-General’ from s.15 and substitutes ‘President’.
12.16 Section 17 requires the Senate to choose a senator to be the President of the Senate. It also allows ‘the President’, meaning the President of the Senate, to resign his or her office or seat by writing addressed to the Governor-General.
12.17 Under a republican system, references in the Constitution to ‘the President’ would be references to the President of the Commonwealth of Australia. In order to avoid any confusion, existing references to ‘the President’, meaning the President of the Senate, would be altered to ‘President of the Senate’.
12.18 Items 5, 6 and 7 therefore change the references in s.17 from ‘President’ to ‘President of the Senate’, and the reference from ‘Governor-General’ to ‘President of the Commonwealth’.
12.19 Section 18 enables the Senate to choose a senator to perform the duties of the President of the Senate if the President of the Senate is absent.
12.20 Section 19 makes provision for a senator to resign by writing to the President of the Senate or, if there is no President of the Senate or the President of the Senate is absent, to the Governor-General.
12.21 Items 8, 9 and 10 amend ss.18 and 19 of the Constitution in order to change the references in the sections from ‘President’ to ‘President of the Senate’ and, in the case of s.19, from ‘Governor-General’ to ‘President of the Commonwealth’.
12.22 Section 21 makes provision for the Governor of a State to be notified by the President of the Senate of a vacancy in the Senate for a senator for the State. If there is no President of the Senate or he or she is absent, s.21 requires the Governor-General to notify the Governor.
12.23 Item 11 amends s.21 in order to change the references from ‘President’ to ‘President of the Senate’ and the reference from ‘Governor-General’ to ‘President of the Commonwealth’.
12.24 Section 23 of the Constitution provides that questions arising in the Senate are to be decided by a majority of votes and each senator, including the President, has a vote.
12.25 Item 12 amends s.23 to insert ‘of the Senate’ after ‘President’. This amendment makes clear that the reference in s.23 to the ‘President’ is a reference to the ‘President of the Senate’ (and not a reference to the President of the Commonwealth of Australia).
12.26 Section 28 provides for a maximum term of 3 years for the House of Representatives and gives the Governor-General power to dissolve the House early.
12.27 Item 13 omits ‘Governor-General’ from s.28 and substitutes ‘President’.
12.28 Section 32 gives the Governor-General in Council power to issue writs for general elections of members of the House of Representatives.
12.29 Item 14 omits ‘Governor-General in Council’ from s.32 and substitutes ‘President in Council’.
12.30 Section 33 gives the Governor-General in Council power to issue a writ for the election of a new member of the House of Representatives if there is no Speaker or the Speaker is absent from the Commonwealth.
12.31 Item 14 omits ‘Governor-General in Council’ from s.33 and substitutes ‘President in Council’.
12.32 Section 34 sets out the qualifications required for a person to be a member of the House of Representatives, until the Parliament otherwise provides. (Section 16 provides that the qualifications for a senator are the same as those for a member of the House.) Subsection 34(ii) states that a member of the House of Representatives:
‘(ii) [he] must be a subject of the Queen, either natural-born or for at least five years naturalized under a law of the United Kingdom, or of a Colony which has become or becomes a State, or of the Commonwealth, or of a State’.
12.33 The qualifications set out in s.34 apply only until and unless Parliament provides otherwise, and Parliament has done so. Under the Commonwealth Electoral Act 1918 a member of either House must be an Australian citizen. However, if Parliament were to repeal the requirements set out in ordinary legislation, the qualifications in s.34 would probably revive. In view of this possibility, it would be undesirable to retain in the Constitution a qualification that a person must be a subject of the Queen.
12.34 Item 15 therefore omits subsection (ii) and substitutes a requirement that a member of the House of Representatives must be an Australian citizen. As s.16 of the Constitution imposes on senators the same qualifications as those of members of the House of Representatives, item 15 would have the effect of also requiring senators to be Australian citizens.
12.35 Section 35 allows the Speaker to resign his or her office or seat by writing addressed to the Governor-General.
12.36 Section 37 enables a member of the House of Representatives to resign his or her place by writing addressed to the Governor-General.
12.37 Sections 42 requires senators and members of the House of Representatives, before taking their seats, to make before the Governor-General an oath or affirmation of allegiance in the form set out in the Schedule to the Constitution.
12.38 Item 16 omits ‘Governor-General’ from ss.35, 37 and 42 and substitutes ‘President’.
12.39 Item 17 would further amend s.42 to replace the existing reference to ‘the schedule’ with a reference to ‘Schedule 1’ to reflect the fact that the amended Constitution would contain 2 schedules.
12.40 Section 44 provides that any person who comes within subsection (i), (ii), (iii), (iv) or (v) of the section is incapable of being chosen or of sitting as a senator or a member of the House of Representatives. Subsection (iv) thus disqualifies a person from being a member of either House if the person:
‘(iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth’.
12.41 The ‘Crown’ referred to in subsection (iv) includes the Crown in right of the Commonwealth and the Crown in right of a State or Territory.
12.42 The proviso to s.44 states that subsection (iv) does not apply to the office of any of the Queen’s Ministers of State for the Commonwealth, or of any of the Queen’s Ministers for a State, or to a person receiving pay, half-pay or a pension as an officer or member of the Queen’s navy or army, or to a person receiving pay as an officer or member of the naval or military forces of the Commonwealth if the person’s services are not wholly employed by the Commonwealth.
12.43 Item 18 repeals subsection 44(iv) and substitutes a new subsection. New subsection (iv) refers to holding any office of profit under the Executive Government of the Commonwealth or a State or Territory, or any pension payable, during the pleasure of the Executive Government of the Commonwealth, out of any revenues of the Commonwealth. New subsection (iv) thus substitutes the concept of ‘the Executive Government’ of the Commonwealth, or a State or Territory, for the concept of ‘the Crown’ and makes it clear that only pensions payable from Commonwealth revenues at the pleasure of the Executive Government come within the ambit of the subsection.
12.44 Item 19 omits from s.44 the first two occurrences of ‘Queen’s’, which are found in the proviso to s.44 which is described in paragraph 12.42 above. Section 44 currently describes Commonwealth and State Ministers as ‘the Queen’s’ Ministers.
12.45 The meaning of s.44 is not altered by the omissions. The proviso will remain applicable to Commonwealth and State Ministers.
12.46 Item 20 makes a further omission from the proviso to s.44. The proviso sets out exceptions to the rules disqualifying a person from being entitled to be chosen as, or to hold office as, a senator or member of the House of Representatives. One of the exceptions is a person receiving pay, half-pay, or a pension as an officer or member of the Queen’s (ie the British) navy or army.
12.47 The proviso is only necessary to exempt such persons because the reference in subsection 44(iv) to holding an office of profit under ‘the Crown’ was originally intended to cover such persons. The change to that subsection made by item 20 would make it clear that such persons are no longer within the ambit of the provision.
12.48 Section 56 prohibits the passing of a vote,
resolution or proposed law appropriating money unless the appropriation has been
recommended by a message from the Governor-General to the House in which the
proposal originated.
12.49 Section 57 sets
out the procedure for dealing with disagreements between the Houses on proposed
laws. It gives the Governor-General power to dissolve the Houses in
circumstances which demonstrate an ongoing disagreement and to convene joint
sittings. It requires proposed laws passed at a joint sitting to ‘be
presented to the Governor-General for the Queen’s
assent’.
12.50 Item 21 omits
‘Governor-General’ from ss.56 and 57 and substitutes
‘President’.
12.51 Item 22 omits the reference in s.57 to ‘for the Queen’s assent’ and substitutes a reference to ‘for assent’. This, together with item 21, has the effect that proposed laws passed at a joint sitting would be presented to the President for the President’s assent.
12.52 Section 58 provides that when a proposed law passed by
both Houses is presented to the Governor-General for the Queen’s assent,
he must assent in the Queen’s name, or withhold assent, or reserve the law
for the Queen’s pleasure. It also allows the Governor-General to return a
proposed law to the relevant House with recommended amendments.
12.53 Item 23 repeals s.58 and substitutes a
new section providing that when a proposed law passed by both Houses is
presented to the President for assent, the President must declare that he or she
assents to the law, or withholds assent. Therefore item 23 removes the
reference to withholding a law for the Queen’s assent. The President may
also return a proposed law to the House in which it originated and may recommend
amendments to a proposed law.
12.54 The
Governor-General’s power to reserve a law for the Queen’s assent is
obsolete under Australia’s present system of government and would have no
place under a republican system. Item 23 therefore removes this power from
s.58. Otherwise the President’s powers under the new s.58 are the same as
the Governor-General’s powers under existing s.58.
12.55 Section 64 empowers the Governor-General to appoint
officers to administer departments of State established by the Governor-General
in Council. It says that such officers hold office during the pleasure of the
Governor-General, they shall be members of the Federal Executive Council and
they shall be the Queen’s Ministers of State for the Commonwealth.
Section 64 also provides that after the first general election no Minister of
State shall hold office for more than 3 months unless he or she is or becomes a
senator or member of the House of Representatives.
12.56 Item 24 repeals s.64 and substitutes a new
section to exactly the same effect as the existing s.64, except that references
to the ‘Governor-General’ and ‘Governor-General in
Council’ are replaced by references to the ‘President’ and
‘President in Council’ and the reference to ‘the first general
election’ is omitted. The reference to the ‘Queen’s Ministers
of State for the Commonwealth’ is replaced by a reference to
‘Ministers of State for the Commonwealth’. (Item 19 makes a similar
change to s.44.)
12.57 Section 65 empowers Parliament to determine the
number of Ministers of State and empowers the Governor-General, in the absence
of provision by Parliament, to direct which office Ministers
hold.
12.58 Item 25 amends s.65 by omitting
‘Governor-General’ and substituting
‘President’.
12.59 Section 66 requires an annual sum to be paid to the
Queen out of Consolidated Revenue for Ministers’ salaries. The sum
is set at £12,000 until Parliament otherwise provides. Parliament has made
other provision in the Ministers of State Act 1952 and in the
Remuneration Tribunal Act 1973.
12.60 Item 26 repeals s.66 and replaces it by a provision that permits Parliament to fix an annual sum payable to Ministers out of the Consolidated Revenue Fund.
12.61 Section 67 empowers the Governor-General in Council,
until the Parliament otherwise provides, to appoint all officers of the
Executive Government of the Commonwealth (except Ministers, who are dealt with
in s. 64).
12.62 Item 27 omits references to ‘Governor-General in Council’ from s.67 and substitutes references to ‘President in Council’.
12.63 Section 68 vests the command in chief of the naval
and military forces of the Commonwealth in the Governor-General as the
Queen’s representative.
12.64 Item 28 amends s.68 by omitting ‘Governor-General as the Queen’s representative’ and substituting ‘President’.
12.65 Section 69 compulsorily transferred the departments
of customs and excise in each State to the Commonwealth on its establishment in
1901 and provided that on a date or dates proclaimed by the Governor-General
certain other State departments were transferred to the Commonwealth.
12.66 The effect of s.69 is now spent and item 29 deletes the reference to the Governor-General.
12.67 Section 70 vests in the Governor-General and
Governor-General in Council certain powers and functions which were vested in
Governors of the six colonies at the Commonwealth’s
establishment.
12.68 Items 30 and 31 amend s.70 by adding that the powers and functions that remain vested under that section in the Governor-General, or the Governor-General in Council, immediately before the office of Governor-General ceased to exist, thereafter vest in the President, or the President in Council, as the case may be.
12.69 Section 72 provides that judges of the High Court and other federal courts are appointed by the Governor-General in Council and may resign by writing addressed to the Governor-General.
12.70 Item 32 omits ‘Governor-General’ from s.72 and substitutes ‘President’. This has the effect that references to references in s.72 to ‘Governor-General in Council’ are replaced by references to ‘President in Council’.
12.71 Section 73 describes the appellate jurisdiction of
the High Court. The last paragraph provides that, until the Parliament
otherwise provides, ‘the conditions of and restrictions on appeals to the
Queen in Council from the Supreme Courts of the several States shall be
applicable to appeals from them to the High Court’. The Queen in Council
means the Privy Council. No appeals are possible from any State Supreme Court
to the Privy Council. Therefore the conditions of and restrictions on appeals
to the Privy Council from State Supreme Courts do not govern appeals from those
Courts to the High Court. The conditions of and restrictions on appeals from
State Supreme Courts to the High Court are determined by the Commonwealth
Parliament.
12.72 Item 33 therefore repeals the
last sentence of s.73 and restates the existing situation, that the conditions
of and restrictions on appeals from State Supreme Courts to the High Court are
as Parliament provides from time to time.
12.73 Section 74 regulates appeals to the Privy Council
and provides that laws limiting the matters in which special leave to appeal to
the Privy Council could be sought are to be reserved by the Governor-General for
the Queen’s pleasure.
12.74 Section 74 is wholly expended. No appeals now lie from any Australian court to the Privy Council. Item 34 therefore repeals s.74.
12.75 Section 83 prohibits the drawing of money from the
Treasury ‘except under appropriation made by law’. The second
sentence of s.83 made special provision for the situation following the creation
of the Commonwealth. It allowed the Governor-General in Council to draw money
from Treasury until one month after the first meeting of the
Parliament.
12.76 The second sentence, which refers to the Governor-General, has had no operation since 1901. Item 35 therefore repeals it.
12.77 Section 85 empowers the Governor-General in Council
to make certain declarations in connection with the transfer of State property
to the Commonwealth as a consequence of the transfer of a State public service
department to the Commonwealth in the early years of federation.
Subsection 85(i) provides that, when a department of the public service of a
State is transferred to the Commonwealth, all State property used exclusively in
connection with the department vests in the Commonwealth. However, it contains
a qualification that, in the case of the departments controlling customs and
excise and bounties, for such time only as the Governor-General in Council
declares to be necessary.
12.78 The qualification
to subsection 85(i) is now spent. The effect of item 36 is to repeal the
qualification.
12.79 Section 103 deals with the appointment and
conditions of service of members of the Inter-State Commission. It provides for
them to be appointed and removed by the Governor-General in Council.
12.80 The Commission does not exist at present, but it could be re-established. Item 37 therefore omits references to ‘Governor-General in Council’ and substitutes reference to ‘President in Council’.
12.81 Section 117 precludes a subject of the Queen,
resident in a State, from subjection in another State to any disability or
discrimination not equally applicable to the person if he or she were a subject
of the Queen resident in that other
State.
12.82 Item 38 omits ‘A subject of the
Queen’ from s.117 and substitutes ‘An Australian
citizen’.
12.83 Item 39 omits ‘a subject of the Queen’
from s.117 and substitutes ‘an Australian citizen’.
12.84 Section 122 gives the Parliament power to make laws
for the government of any territory ‘surrendered by any State to and
accepted by the Commonwealth, or of any territory placed by the Queen under the
authority of and accepted by the Commonwealth, or otherwise acquired by the
Commonwealth’.
12.85 Item 40 simply omits
‘by the Queen’ from s.122.
12.86 Section 126 allows the Queen to authorise the
Governor-General to appoint a deputy or deputies and makes provision for their
exercise of the Governor-General’s powers and
functions.
12.87 Item 41 repeals s.126. The Bill
makes provision for an acting President and presidential deputies in proposed
s.63 of the Constitution.
12.88 Item 41 uses the
spare section available to enact in the Constitution a provision stating that
the Constitution of the Commonwealth of Australia, and all laws made under it by
the Commonwealth Parliament, are binding on the courts, judges and peoples of
every State and of every part of the Commonwealth. New s.126 is in essentially
the same terms as covering clause 5 of the Constitution Act
(UK).
12.89 Item 41 enacts a new s.127 in the
Constitution. (The original s.127 was repealed in 1967.) New s.127 contains
several important constitutional definitions, some of which are contained in the
covering clauses to the Constitution.
12.90 The
definitions are as follows:
‘Australian
citizen’ is defined to mean a person who is an Australian citizen
according to the laws made by the Commonwealth Parliament.
‘The Commonwealth’ is defined as the Commonwealth
of Australia under the Constitution. The definition of ‘The
Commonwealth’ in covering clause 6 is ‘the Commonwealth of
Australia as established under this Act’, meaning the Commonwealth of
Australia as established under the Constitution Act
(UK).
‘The original States’ means New
South Wales, Queensland, Tasmania, Victoria, Western Australia and South
Australia. (This is the order in which ‘the States’ is defined in
covering clause 6.)
‘The President in
Council’ means the President acting with the advice of the Federal
Executive Council. This definition is currently set out in s.63 of the
Constitution.
‘The States’ means the
original States, and territories admitted into or established by the
Commonwealth as States. This is the effect of the definition of ‘the
States’ in clause 6 of the covering clauses.
12.91 Section 128 specifies the procedure whereby the
Constitution may be altered. The process includes the submission by the
Governor-General of a proposed alteration to the electors at a referendum and
the presentation of a proposed alteration which has been approved at the
referendum to the Governor-General for the Queen’s
assent.
12.92 Item 42 omits references to the
‘Governor-General’ in s.128 and substitutes references to
‘President’.
12.93 Item 43 omits ‘the Queen’s’ from s.128. The assent required under s.128 as amended is the President’s assent, not the Queen’s assent.
13.1 Schedule 3 to the Bill contains one item. The item would add a schedule - Schedule 2 - at the end of the Constitution setting out transitional provisions necessary or desirable for the establishment of the republic. The proposed clauses of Schedule 2 to the Constitution are discussed below.
13.2 Clause 1 provides that the office of the Governor-General would cease to exist when the provisions establishing the republic commence (ie, 3.00 pm in Canberra on 1 January 2001). Clause 1 makes it clear that the office of Governor-General does not continue under clause 4 (‘Savings’ - see below) beyond the time of the establishment of the republic.
13.3 Clause 2 would allow the process of choosing the first President, in accordance with the new constitutional provisions (and the Presidential Nominations Committee Bill 1999), to be completed after the Bill is approved at referendum but before the commencement of a republic on 1 January 2001. The first President could then take office on the day on which the office formally comes into existence (ie, 1 January 2001).
13.4 This approach could involve the passage of the Presidential Nominations Committee Bill 1999 in 2000 (as to which, see below), and completion of the nomination and selection processes before the end of that year.
13.5 Clause 2 would also provide for the acting arrangements under the new constitutional provisions to apply in the event that no person is chosen as the first President before 1 January 2001.
13.6 In order to choose the first President as permitted under clause 2, it would be open to enact the Presidential Nominations Committee Bill 1999 prior to the commencement of the provisions establishing the office of President. It may also be convenient to enact legislation providing for the President’s salary and terms and conditions of office, determining the President’s liability in relation to taxation, and making arrangements for an office equivalent to that of the Official Secretary to the Governor-General (established under the Governor-General Act 1974), so that the office of President may function from the moment of its commencement.
13.7 In order to remove any doubt as to whether the Commonwealth Parliament has constitutional power to enact legislation under the new constitutional provisions prior to their commencement, clause 3 would authorise such legislation. Clause 3 would in effect authorise the enactment and operation of any legislation that may be required under the new constitutional arrangements. Clause 3 would not, however, alter the fact that the amendments of the Constitution proper would not commence until 1 January 2001; and therefore would not authorise legislative arrangements effective to establish a republic until that date.
13.8 In order to put beyond doubt that conversion to a republic would not affect the continuity of the legislative, executive or judicial arms of the Commonwealth government, or the validity of any exercise of legislative, executive or judicial power, clause 4 provides that these are not affected by the alterations of the Constitution made by the Bill.
13.9 In particular:
(a) subparagraph (i) of clause 4 covers the exercise of federal legislative or executive power;
(b) subparagraph (ii) covers the institution of the Commonwealth Parliament and its proceedings;
(c) subparagraph (iii) covers current membership of the Parliament (including the qualifications of members following consequential amendments of ss.34 and 44 of the Constitution);
(d) subparagraph (iv) covers the institution of the Executive Government of the Commonwealth (including the Federal Executive Council); and
(e) subparagraph (v) covers federal, State and Territory courts and their jurisdiction and proceedings.
13.10 The second paragraph of clause 4 is intended to ensure that things done by the Governor-General under a constitutional provision (but not under an ordinary statutory provision) have effect as if they had been done by the President. The provision would, for example, ‘translate’ any action of the Governor-General under s.56 of the Constitution that was not complete at the time of the establishment of the republic.
13.11 The Convention resolved:
That any move to a republic at the Commonwealth level should not impinge on State autonomy, and the title, role, powers, appointment and dismissal of State heads of state should continue to be determined by each State.
While it is desirable that the advent of the republican government occur simultaneously in the Commonwealth and all the States, not all States may wish, or be able, to move to a republic within the time-frame established by the [Commonwealth] ... the Commonwealth Government and Parliament should accordingly consider whether specific provision needs to be made to enable States to retain their current constitutional arrangements.
13.12 Amendments of State constitutions would be necessary to sever State links with the Crown. The States would be left to make these amendments. In the event that the Australian people support change to a republic at the referendum, the Commonwealth would strongly support simultaneous change at Commonwealth and State levels.
13.13 However, as the States would be left to sever their own Crown links, the Constitution must cover the possibility that those links will remain in one or more States beyond the point at which any republic is established at the Commonwealth level. Clause 5 would put the status of these links beyond doubt, and rule out any argument that the Commonwealth constitutional amendments are intended to affect the links at State level, by stating that a State that has not altered its laws to sever its links with the Crown by 1 January 2001 retains its links with the Crown until it so alters its laws. Proposed clause 9 (see below) would make it clear that the monarch of the State would be the person who is the monarch of the UK.
13.14 Clause 6 puts beyond doubt that the alterations of the Constitution made by the Constitution Alteration (Establishment of Republic) 1999 do not affect the continuity of the federal system, including the unified system of law, under the Constitution.
13.15 Australia’s unified legal system derives from the Constitution, which provides in s.73 that the High Court is Australia’s ultimate court of appeal (and, since the enactment of the Australia Acts, the ultimate court of appeal) for federal, State and Territory courts on all matters. The Constitution, binding on the Commonwealth and all the States under the Constitution (see ss.106 and 109 and proposed s.126), maintains this unified system.
13.16 Subsection 7(1) of the Australia Acts (Commonwealth and UK) provides that ‘Her Majesty’s representative in each State shall be the Governor’. It would be desirable, in the event of change to a republic, to amend s.7 in each Act to avoid any argument that they entrench Crown links at the State level which are inconsistent with republican arrangements.
13.17 The Australia Acts can be amended by a law of the Commonwealth passed at the request or with the concurrence of all the States. They can also be amended by the Commonwealth Parliament if it is given power to do so by amendment of the Commonwealth Constitution.
13.18 Clause 7 would give such a power to the Commonwealth Parliament.
13.19 The grant of power is framed very narrowly. Where requested by a State to do so, the Parliament may make a law that provides that the provisions in question do not apply to that State.
13.20 Clause 8 would put beyond doubt that the potential for evolution of the constitutional conventions applying to the exercise of the reserve powers by the President is not affected by conversion to a republic.
13.21 Clause 9 adopts the terms of covering clause 2 of the Constitution Act (UK). It would put beyond doubt that references in proposed clause 5 to ‘the Crown’ extend to the Queen’s heirs and successors in the sovereignty of the United Kingdom.
ATTACHMENT
CONSTITUTIONAL
CONVENTION
1998
COMMUNIQUE
1. The Convention met at Canberra from Monday 2
February 1998 until Friday 6 February 1998 and from Monday 9 February 1998
until Friday 13 February 1998.
2. The
Convention considered three
questions:
• whether or not Australia should
become a republic;
• which republic model should
be put to the voters to consider against the current system of government;
and
• in what timeframe and under what
circumstances might any change be
considered.
3. The Rt Hon Ian Sinclair MP presided
as Chairman, with the Hon Barry Jones AO MP as Deputy
Chairman.
4. The Convention was constituted by 152
delegates. Seventy-six delegates were elected under the Constitutional
Convention (Election) Act 1997. The other seventy-six were appointed
by the Commonwealth Government and included forty representatives of the
Commonwealth, State and Territory
Parliaments.
5. Debate on the Convention floor was
positive, with wide participation by delegates. While the debate was robust, a
strong spirit of civility and compromise was
demonstrated.
6. Three categories of model for a
possible Australian republic were before the Convention. They were: direct
election, parliamentary election by a special majority and appointment by a
special council following Prime Ministerial nomination. While there was
significant support for models in each of these categories, following an
exhaustive balloting process the Bipartisan Appointment of the President set out
below was endorsed by a majority of delegates who voted for or against the
motion.
7. The Convention also agreed to a range
of resolutions relating to the Preamble and to miscellaneous transitional and
consequential issues relating to a change to a
republic.
8. The following specific matters were
resolved by the Convention:
Whether
Australia should become a republic
9. That this
Convention supports, in principle, Australia becoming a
republic.
10. That this Convention supports the
adoption of a republican system of government on the “Bipartisan
Appointment of the President Model” as set out below in preference to
there being no change to the Constitution.
11. That
this Convention recommends to the Prime Minister and Parliament that the
Bipartisan Appointment of the President Model, and other related changes to the
Constitution, supported by this Convention, be put to the people in a
constitutional referendum.
Timing and
circumstances of any change
12. That a
referendum for change to a republic or for the maintenance of the status quo be
held in 1999. If the referendum is in favour of a republic, that the new
republic come into effect by 1 January
2001.
13. That prior to the referendum being put to
the people, the Government undertake a public education programme directed to
the constitutional and other issues relevant to the
referendum.
Implications for the
States
14. That the Commonwealth Government and
Parliament extend an invitation to State Governments and Parliaments to
consider:
The implications
for their respective Constitutions of any proposal that Australia become a
republic; and
The consequences to the Federation
if one or more States should decline to accept republican
status.
15. That any move to a republic at the
Commonwealth level should not impinge on State autonomy, and the title, role,
powers, appointment and dismissal of State heads of state should continue to be
determined by each State.
16. While it is desirable
that the advent of the republican government occur simultaneously in the
Commonwealth and all States, not all States may wish, or be able, to move to a
republic within the timeframe established by the Commonwealth. That the
Government and Parliament should accordingly consider whether specific provision
needs to be made to enable States to retain their current constitutional
arrangements.
The Bipartisan Appointment of
the President Model.
17. In the event that
Australia becomes a republic, the model adopted be the Bipartisan Appointment of
the President Model.
Nomination
Procedure
18. The objective of the nomination
process is to ensure that the Australian people are consulted as thoroughly as
possible. This process of consultation shall involve the whole community,
including:
State and Territory
Parliaments;
local
government;
community organisations,
and
individual members of the
public
all of whom should be invited to provide
nominations.
19. Parliament shall establish a
Committee which will have responsibility for considering the nominations for the
position of President. The Committee shall report to the Prime
Minister.
20. While recognising the need for the
Committee to be of a workable size, its composition should have a balance
between parliamentary (including representatives of all parties with party
status in the Commonwealth Parliament) and community membership and take into
account so far as practicable considerations of federalism, gender, age and
cultural diversity.
21. The Committee should be
mindful of community diversity in the compilation of a short-list of candidates
for consideration by the Prime Minister.
22. This
process for community consultation and evaluation of nominations is likely to
evolve with experience and is best dealt with by ordinary legislation or
parliamentary resolution; and
23. The Committee
should not disclose any nomination without the consent of the
nominee.
Appointment or Election
Procedure
24. Having taken into account the
report of the Committee, the Prime Minister shall present a single nomination
for the office of President, seconded by the Leader of the Opposition, for
approval by a Joint Sitting of both Houses of the Federal Parliament. A two
thirds majority will be required to approve the nomination.
Dismissal
Procedure
25. The President may be removed at
any time by a notice in writing signed by the Prime Minister. The President is
removed immediately the Prime Minister’s written notice is issued. The
Prime Minister’s action must be presented to a meeting of the House of
Representatives for the purpose of its ratification within 30 days of the date
of removal of the President. In the event the House of Representatives does not
ratify the Prime Minister’s action, the President would not be restored to
office, but would be eligible for re-appointment. The vote of the House would
constitute a vote of no confidence in the Prime
Minister.
Definition of
Powers
26. The powers of the President shall be
the same as those currently exercised by the Governor-General.
27. To that end, the Convention recommends that
the Parliament consider:
the non-reserve powers
(those exercised in accordance with ministerial advice) being spelled out so far
as practicable; and
a statement that the reserve
powers and the conventions relating to their exercise continue to
exist.
Qualifications for
Office
28. Australian citizen, qualified to be
a member of the House of Representatives (see s. 44
Constitution).
Term of
Office
29. Five
years.
A
Preamble
30. The Convention also resolved that
the Constitution include a Preamble, noting that the existing Preamble before
the Covering Clauses of the Imperial Act which enacted the Australian
Constitution (and which is not itself part of our Constitution) would remain
intact.
31. Any provisions of the Constitution Act
which have continuing force should be moved into the Constitution itself and
those which do not should be repealed.
32. The
Preamble to the Constitution should contain the following
elements:
Introductory language in the form
“We the people of
Australia”;
Reference to “Almighty
God”;
Reference to the origins of the
Constitution, and acknowledgment that the Commonwealth has evolved into an
independent, democratic and sovereign nation under the
Crown;
Recognition of our federal system of
representative democracy and responsible
government;
Affirmation of the rule of
law;
Acknowledgment of the original occupancy and
custodianship of Australia by Aboriginal peoples and Torres Strait
Islanders;
Recognition of Australia’s
cultural diversity;
Affirmation of respect for our
unique land and the environment;
Reference to the
people of Australia having agreed to re-constitute our system of government as a
republic; and
Concluding language to the effect
that “[We the people of Australia] asserting our sovereignty, commit
ourselves to this Constitution”.
33. The
following matters be considered for inclusion in the
Preamble:
Affirmation of the equality of all
people before the law;
Recognition of gender
equality; and
Recognition that Aboriginal people
and Torres Strait islanders have continuing rights by virtue of their status as
Australia’s indigenous peoples.
34. Care
should be taken to draft the Preamble in such a way that it does not have
implications for the interpretation of the
Constitution.
35. Chapter 3 of the Constitution
should state that the Preamble not be used to interpret the other provisions of
the Constitution.
Other
issues
36. As to other issues, the Convention
resolved that, in the event Australia becomes a
republic:
37. the name “Commonwealth of
Australia” be retained
38. Australia remain a
member of the Commonwealth of Nations in accordance with the rules of the
Commonwealth.
39. the title of the head of state
should be “President”.
40. the head of
state should swear or affirm an oath of allegiance and an oath of office,
The oath or allegiance might appropriately be
modelled on that provided by the Australian Citizenship Act 1948 as
follows:
[Under God] I pledge my loyalty to
Australia and its people, whose democratic beliefs I share, whose rights and
liberties I respect and whose laws I will uphold and
obey.
The oath [or affirmation] of office might
appropriately be modelled on the following
words:
I swear, humbly relying on the blessing of
Almighty God, [or, I do solemnly and sincerely affirm and declare] that I will
give my undivided loyalty to and will well and truly serve the Commonwealth of
Australia and all its people according to law in the office of the President of
the Commonwealth of Australia, and I will do right to all manner of people after
the laws and usages of the Commonwealth of Australia without fear or favour,
affection or ill
will
or
I swear [or
affirm] that I will be loyal to and serve Australia and all its people according
to law without fear or favour.
41. The Commonwealth
Government and Commonwealth Parliament give consideration to the transitional
and consequential matters which will need to be addressed, by way of
constitutional amendment or other legislative or executive action,
including:
42. The date of commencement of the new
provisions;
43. The commencement in office of the
head of state upon oath or affirmation;
44. Provision for an acting head of state in
certain circumstances;
45. Provision for
continuation of prerogative powers, privileges and immunities until otherwise
provided;
46. Provision for salary and pension;
47. Provision for voluntary resignation;
48. Provision for the continued use, if and where
appropriate, of the term Royal, Crown or other related terms, and use of the
royal insignia, by the Defence Forces or any other government body;
49. Provision for the continued use of the term
Royal, Crown or other related term, and use of royal insignia, by non-government
organisations;
50. Provision for notes and coins
bearing The Queen’s image to be progressively withdrawn from circulation;
and
51. Provision to ensure that any change to the
term Crown land, Crown lease or other related term does not affect existing
rights and entitlements to land;
52. Spent or
transitory provisions of the Constitution should be
removed.
53. The head of state should be an
Australian citizen;
54. The head of state should be
eligible to vote in an election for the Senate or House of Representatives at
the time of nomination;
55. The head of state
should not be a member of any political
party;
56. The head of state should be subject to
the same disqualifications as set out in section 44 of the Constitution in
relation to members of Parliament; and
57. Any
future amendments to section 44 of the Constitution should also apply to the
head of state.
Ongoing constitutional review
process
58. The Convention also resolved that,
if a republican system of government should be introduced by referendum, at a
date being not less than three years or more than five years thereafter the
Commonwealth Government should convene a further Constitutional
Convention.
59. Two-thirds of such Convention
should be directly elected by the people.
60. The
agenda of such Convention would be to :
61. Review
the operation and effectiveness of any republican system of government
introduced by a constitutional
referendum;
62. Address any other matter related to
the operation of our system of government under republican arrangements,
including: the role of the three tiers of government; the rights and
responsibilities of citizenship; whether the Commonwealth should have an
environment power; the system of governance and proportional representation;
whether the mechanism for constitutional change should be altered;
constitutional aspects of indigenous reconciliation; equal representation of
women and men in parliament; and ways to better involve people in the political
process.
63. The Convention be preceded by an
extensive and properly resourced community consultation process, to commence
within twelve months of the passage of a referendum to establish a republic, in
which ideas and responses on the above matters would be actively sought by the
Government and Parliament.
Australian Flag and
Coat of Arms
64. In addition to the matters on
which resolutions were adopted, the Australian Flag and Coat of Arms were also
raised in debate before the Convention. While it was beyond the terms of
reference for this Convention to make formal resolutions on the issue, the
Chairman undertook to draw the discussion to the attention of the
Government.
65. A number of delegates sought
entrenchment of the design of the Australian Flag and Coat of Arms in the
Constitution so that they could not be changed without the necessary majority at
a referendum. Other delegates did not support incorporation in the Constitution
but agreed that the Flag should not altered without a vote of all
electors.
66. Full details of the proceedings and
details of the voting on final resolutions will be presented to the Commonwealth
Parliament and published in a report of the Convention.
Signed on behalf of delegates, this
thirteenth day of February
1998
Ian
Sinclair Barry Jones
Chairman Deputy
Chairman