Comments in respect of provisions which have been amended are described
in detail below, and are categorised as follows:
Note: References made to recommendations for amendments, or comparisons to
recommendations or to other documents, should not be taken to mean that the
relevant provision in this constitution is identical to that which is
referred to or compared to.
- Ss.2, 3 and 4. No longer relevant. Replaced by provisions
constituting the office of President. S.4 has been moved to s.60(2) and then
amended. (See ss.59, 60, 61, 62, 62A and 62B.)
- S.5. This has been amended to provide that the President may convene
a joint sitting of the Parliament, and to provide a failsafe method of
circumventing a deadlock whenever the President cannot, or unlawfully refuses
to, summon the Parliament or convene a joint sitting by automating the process.
For example, if the President unlawfully refuses to convene a joint sitting
which will consider a motion for his removal from office, the President is in no
position to create a constitutional deadlock, as the joint sitting will simply
be deemed to have been convened one week from the time the President had
initially been advised or otherwise required to convene the joint sitting.
See also s.28, which allows the President in consultation with the Executive
Council to dissolve the House of Representatives before the expiration of its
full term.
- Ss.12 and 15. Rather than the Governor of a State (or the President)
alone issuing writs for election of senators or appointing senators to fill
casual vacancies (as per the current Constitution), the President is bound to
first consult with the Federal Executive Council in the case of general
elections to the Senate and with the Constitutional Council in the case of the
filling of vacancies, though he may still act according to his discretion
(guided by conventions) as per the current Constitution.
Note that this is far from an ideal solution to redressing the travesty of
democracy that the appointing of Senators is - the best solution would be to
institute a system of "counting back" as is used in the Senate-like Hare-Clarke
electoral systems of Tasmania's House of Assembly and the ACT Legislative
Assembly. This would generally mean that the next person donw on that party's
ticket, as registered at the last general election, would fill the vacancy.
However, when there are no candidates left on the ticket to fill the vacancy
(most unlikely), you still need some method of choosing a replacement. A
by-election would not be fair under the proportional representation system (for
example, if a Democrats-held seat became vacant, an election would
certainly return an ALP or Liberal replacement). A method of appointment which
is as non-partisan as possible is required, and with the President being
constitutionally bound to choose a member of the same party, this would seem to
be a fair solution.
- S.21. Rather than the President of the Senate (or in his absence, the
Governor-General/President) notifying the Governor of the State of a casual
vacancy (as per the current Constitution), the President of the Senate (or in
his absence, the acting President of the Senate) notifies the President.
- S.28. Rather than the Governor-General/President alone prematurely
dissolving the House of Representatives (as per the current Constitution), the
President is bound to first consult with the Federal Executive Council, though
he may still act according to his discretion (guided by conventions) as per the
current Constitution.
- S.32. It is clearly stated here that the President is required to
issue writs for general elections to the House of Representatives.
- S.33. It is clearly stated here that the Speaker (or in his absence
the President) is required to issue writs for elections for casual vacancies to
the House of Representatives.
- S.51. In paragraph (xxxviii), the deleted part is obsolete, as all
sovereign power already resides in the Crown in right of the various Australian
Governments. Also, the Parliament of the United Kingdom together with the
Federal Council of Australasia, at the establishment of the Constitution, would
have been able to exercise full plenary power over any part of the country.
Thus, reference to the Parliament of the UK or the Federal Council of
Australasia is no longer necessary, as a simple reference to "any power"
describes the status quo.
Incidentally, paragraph (xxxix) should enable the Parliament to legislate
with respect to the exercise of any power vested by the Constitution in the
President, being as he is an "officer of the Commonwealth".
- S.57. In the deadlock provisions of s.57, the President may perform a
double dissolution only after consulting with the Executive Council. It is the
President in Council, rather than the President, who convenes a joint sitting
after any such double dissolution.
- S.58. The President retains the discretionary power to return a bill
to the Parliament with his recommendations, but before doing so, he must consult
with the Federal Executive Council. Note that the executive government of the
day might not advise the President to assent to a bill (such as a Private
Member's Bill) passed by the Parliament. Cf rec CC 1988.
- Ss.59, 59A and 60. (See also category (c).) Sections 59 and 60
replace the old ss.59 and 60, and constitute one of the major changes to the
Constitution.
Model 1 - Nomination of the President by a Constitutional Council with the
Parliament free to decide whether to appoint the President or to provide for a
popular election.
- Under these amendments, there are two means by which a President can be
elected. Firstly, the Parliament may provide that the President be elected by
the Parliament. But if the Parliament makes no such provision, the President is
elected by the people. In both cases, a Constitutional Council chooses the
candidate or candidates and it can accept nominations from its own members, MPs
or members of the public. The Constitutional Council acts as a type of mixed
bipartisan and non-partisan selection committee, and consists of:
(i) ex officio voting members, comprising the President (chair), the
Vice-President, the immediate past President, the immediate past
Vice-President, the President of the Senate, the Speaker of
the House of Representatives, the Prime Minister and the Leader of the
Opposition;
(ii) ex officio non-voting members, comprising the leaders of parties
or coalitions of parties as the case may be other than those of the Prime
Minister and the Leader of the Opposition which have five or more members in the
Parliament; and
(iii) ten associate members, who are voting members, elected by the Senate
by proportional representation for a term of office of three years. This method
of appointment was chosen to have the appointment as far as possible removed
from influence of the executive government of the day (in do far as the Senate
is/should be a House of Review) whilst also ensuring that elected
representatives of the people were involved in the appointment and that the
spirit of the Constitution could not be breached to appoint government
sympathisers to all positions of associate member. A guideline states that
associate members should be chosen on the basis of significant achievement and
merit in service to Australia or to humanity at large - similar to the basis on
which the Order of Australia is awarded.
- The establishment of the Constitutional Council in the Constitution as a
special constitutional organ not part of one of the three branches of government
could be compared to the establishment of the now defunct Inter-State
Commission. The intention is to have a body which is a sort of
selection/vetting committee which would ideally ensure that in a small field of
candidates each candidate would have bipartisan support, and that candidates
were suitable for the office of President.
- If the Parliament has provided that the President be chosen by the Parliament,
the procedure for election of the President is as follows:
- One candidate (though the Parliament may provide for any number of
candidates up to five) is chosen by the Constitutional Council (convened for
this purpose by the President of the Senate, as there may be a real or perceived
conflict of interest of the President were to fill this role). A failsafe
method of having the Constitutional Council convened should the President of the
Senate not do so for any reason is achieved by automating the process.
If either the Prime Minister or the Leader of the Opposition fail to support
a candidate, the Constitutional Council may choose that candidate only by a
unanimous vote (and in this case the votes of the Prime Minister or the Leader
of the Opposition are not counted). This enhances the probability of a
non-partisan candidate being selected, and it is a strong incentive for the
Prime Minister and the Leader of the Opposition to agree on a candidate. As an
incentive for the Constitutional Council to complete its business in a timely
manner, its right to be prorogued or adjourned is limited until it chooses a
candidate.
- The Parliament may ask once for a reconsideration of the candidate chosen by
the Constitutional Council. This guards to some extent against the
Constitutional Council inadvertently choosing an undesirable candidate.
- Within ten days of the declaration of candidates by the Constitutional
Council, a joint sitting of the Parliament meets to elect a new President by a
two-thirds majority of all members. Similarly to the Constitutional Council, as
an incentive for the Parliament to complete its business in a timely manner, its
right to be prorogued or adjourned is limited until it elects a President. If
there is more than one candidate, the Parliament votes separately for each
candidate, and the one with the highest vote (though two-thirds is still
required) is elected President.
- If the Parliament has not provided that the President be chosen by the
Parliament, the President is elected by the people, and the procedure is as
follows:
- Three to five candidates are chosen by the Constitutional Council
in the same way as where the President is chosen by the
Parliament.
- The Parliament may ask for a reconsideration in the same way as
where the President is chosen by the Parliament.
- Within ten days of the declaration of candidates by the Constitutional
Council, the President of the Senate issues writs for the election of the
President. The whole country votes as one electorate according to the system of
optional preferential voting, and the candidate with the highest vote after
distribution of preferences is elected President.
- S.59 (1). The President is characterised as Head of State of "all
jurisdictions" (i.e., including the States). This is analogous to the Queen,
who is also currently Head of State of all jurisdications. See comments on s.110 for further discussion of this.
- S.59 (11) is moved from s.3 and modified rec CC 1988.
- S.59A enables the Parliament to provide for a Vice
President if it sees fit.
- S.60 (1) is adapted from provisions of the Letters Patent relating to
an Administrator of the Commonwealth (effectively an acting Governor-General).
- S.60 (2) is moved from s.4 and modified. Original formatting has been
retained for clarity.
Model 2 - Appointment of the President by the Parliament with Nomination by
the Prime Minister
- Under these amendments, the procedure for election of the President is as
follows:
- One candidate is chosen by the Prime Minister in consultation with the
Leader of the Opposition and other party leaders.
- Within ten days of the proposal by the Prime Minister, a joint sitting of
the Parliament meets to elect a new President by a two-thirds majority of all
members. As an incentive for the Parliament to complete its business in a
timely manner, its right to be prorogued or adjourned is limited until it elects
a President.
Model 3 - Appointment of the President by the Parliament with Nomination by
a Constitutional Council
- Under these amendments, the Constitutional Council is the same as in Model
1.The procedure for election of the President is as follows:
- One candidate is chosen by the Constitutional Council (convened for
this purpose by the Chief Justice). Otherwise, this step is the same as in
Model 1.
- The Parliament may ask once for a reconsideration as in Model 1.
- Within ten days of the declaration of the candidate by the Constitutional
Council, a joint sitting of the Parliament meets to elect a new President by a
two-thirds majority of all members. Similarly to the Constitutional Council, as
an incentive for the Parliament to complete its business in a timely manner, its
right to be prorogued or adjourned is limited until it elects a President.
Model 4 - Popular Election of the President with Nomination by a
Constitutional Council
- Under these amendments, the Constitutional Council is the same as in Model
1.The procedure for election of the President is as follows:
- Three to five candidates are chosen by the Constitutional Council (convened
for this purpose by the Chief Justice). Otherwise, this step is the same as in
Model 1.
- The Parliament may ask once for a reconsideration as in Model 1.
- Within ten days of the declaration of candidates by the Constitutional
Council, the Chief Justice issues writs for the election of the President.
The whole country votes as one electorate according to the system of optional
preferential voting, and the candidate with the highest vote after distribution
of preferences is elected President.
- In case there is some unforseen failure in the procedure to elect a
President, the procedure can be repeated.
- The oath taken by the President is defined in a new Schedule II.
- The option of whether or not there should be a Vice President is left to the
Parliament to decide. If Parliament does not provide for a Vice President, the
office would not exist. But if it does, it can choose one of two methods of
election:
- The Vice President would be that person who has scored the next highest vote
in the election for the office of President (this is the default method); or
- A separate ballot would be conducted for the election of the Vice President
at the same time as for the President.
- The term of office of the President would be five years. There is provision
for the President to continue in office even after the expiration of his term
until his successor enters into the office. This measure is intended to cover
any situation where, due to some unforseen problem occurring, a new President
has not been chosen within the specified time limits.
- Any person qualified for membership of the Parliament is eligible to be
President. The President is not permitted to hold any other office or position
of profit. The President's remuneration cannot be diminished during his
continuance in office.
- Like the monarch and Governor-General, the President has the right to
be fully informed concerning the general conduct of the government and may
request any information he sees fit. He is entitled to encourage and to
warn at any time.
- A practically failsafe method for designating a replacement whenever the
President cannot perform his functions is provided.
- The President may be dismissed by a joint sitting voting with a two-thirds
of all the members, on the grounds that he is unfit to hold office, or has
brought the office into disrepute, or is unable to perform his functions by
reason of physical or mental incapacity. A deadlock cannot occur if the President
refuses to convene a joint sitting for the purpose, as the Constitution provides
that other offices can do this under such circumstances. In any case, if the
President did so refuse, the refusal would be unconstitutional and would
probably in itself constitute sufficient ground for dismissal.
- S.61. This section constitutes one of the major changes to the
Constitution. This provides that the executive power of the Commonwealth is
vested in the President, and includes the sovereign and prerogative powers.
This is the way things currently stand in respect of the Governor-General. It
is formally stated that the President only acts on the advice of the executive
government, except as is otherwise provided by the Constitution. In the case of
advice from different officers of the executive government conflicting, the
advice of the Prime Minister prevails, or where the Executive Council is
involved, the advice of the Executive Council prevails.
Note that the Executive Council can be more of an effective check on a
Prime Minister who seeks to become excessively powerful, as the President may
convene the Executive Council which may then overturn the Prime Minister's
advice.
Provisions of this Constitution refer to the President in the following
terms:
- The President in Council: This refers to the President
acting in accordance with the advice of the Federal Executive Council.
- The President in consultation with Council: This refers to the President
acting according to his discretion (whilst having due regard to
established conventions), but requires that the President consult with, and
solicit the advice of, the Federal Executive Council.
- The President: This generally refers to the President acting
according to his discretion (whilst having due regard to established
conventions) without, or contrary to, the advice of the executive government,
except in cases where the President is required to act but where it is not
necessary for any advice to be provided. Whenever the President acts according
to his discretion, the act is not justiciable.
Note that the parenthetical provision "(whilst having due regard to established
conventions)" probably actually has no practical effect, especially since any
exercise of power under these provisions is not justiciable. Conventions can be
made and remade quite capriciously - this serves as nothing more than a
guideline, or a "meta-convention". It may, however, become relevant if ever the
Parliament were to consider a motion to remove the President from office. If the
President had ignored (what the Parliament might consider to be) established
conventions on a grand scale, the Parliament might deem this to be sufficient
grounds for deciding that the President according to s.60(4).
Where the Constitution states that a power may be exercised by the President
according to his discretion, the Courts cannot review it (after all, it would be
ludicrous for a Court to decide whether the President himself did or did not see
fit to exercise one of his powers!), but where the Constitution states that a
power must be exercised by the President according to some prescription, that
prescription must be adhered to, and this could be reviewed by a Court.
Subsection (6) has been moved from s.126, based on rec CC 1988. Original
typefaces have been retained for clarity. Subsection (7), which relates to
subsection (6), has been adapted from the Letters Patent.
- Ss.62, 62A and 62B. These sections constitute one of the major
changes to the Constitution and set out some of the discretionary
("reserve") powers of the President.
Ss.62(3) and 62A(1) are based on rec CC 1988. S.62A(2) and (4): cf
Commonwealth Constitution s.65. S.62A(3): cf Commonwealth Constitution s.64;
modified rec CC 1988.
The Prime Minister is defined as the Head of the Executive Government and is
appointed and dismissed by the President. The President is required to appoint
the person whom he believes has the confidence of the House of Representatives.
If the Prime Minister dies, the President is required to appoint the Deputy
Prime Minister, or the next most senior Minister, as Prime Minister. The Prime
Minister is a member of the Federal Executive Council and is a Ministers of
State.
Characterising the Prime Minister as "Head of the Executive Government"
emphasises the position of the President as a nominal executive Head of
State, with real executive power exercised in practice by the Prime Minister and
his Ministry providing advice to the President through the Executive Council
(i.e.,the status quo). Any powers inferred to the office could be so inferred
only in a manner inconsistent with the provisions of the Constitution; what it
does infer is that the Prime Minister is the most senior Minister of State.
The President also appoints as Leader of the Opposition the person who leads
the party or coalition of parties which, apart from the Prime Minister's party
or coalition of parties, occupies the greatest number of seats in the House of
Representatives.
Although the power of the President to appoint the Leader of the Opposition is a
discretionary power, if the Prime Minister were to advise the President to
abuse this power and breach the spirit of the Constitution by appointing a
government sympathiser, such a public outcry would be directed at the Prime
Minsiter that it would be electoral suicide. If the President did indeed act
according to his discretion and appointed someone who should clearly not have
been appointed Leader of the Opposition, it would result in such accusations of
partisanship that he would be lucky to survive long before being removed from
office; and if the parties of government sided with a President, it would,
again, be electoral suicide for the Prime Minister and his government.
All other Ministers of State are appointed, ranked and dismissed by the
President on the advice of the Prime Minister.
If a Prime Minister has lost the confidence of the House of Representatives
and has failed to resign the President may dismiss him, unless the Prime
Minister has advised and secured a dissolution of the House of Representatives.
The President may refuse to dissolve the House of Representatives on the
advice of a Prime Minister who has lost the confidence of the House of
Representatives or who has not yet obtained it.
The President may dissolve the House of Representatives, or dissolve the
House of Representatives and dismiss the Prime Minister, if he believes that the
Executive Government of the Commonwealth is breaching the Constitution, or is
not complying with an order of a court, or is persisting in other unlawful
behaviour.
- S.63. This establishes the Federal Executive Council. The President
convenes the Council on the advice of the Prime Minister, but he can also do so
at his discretion. He may decide to do this if, for example, he requires
information from Ministers, or wishes to discuss a matter of great importance,
or wishes to consult with Ministers regarding a constitutional crisis.
Subsection (2): cf Commonwealth Constitution ss.62 and 64, modified rec CC 1988.
- S.64. The President acts in accordance with the advice of the
Prime Minister in appointing Ministers of State. Based on rec CC 1988. Deleted
paragraphs covered by ss.63(1) and 62A(2).
- S.65. This has been deleted and analogous provisions included in s.62A.
- S.67A. This section constitutes one of the major changes to the
Constitution. It establishes the Constitutional Council, which acts primarily
as a type of mixed bipartisan and non-partisan selection committee. Its role
could be expanded to include other functions and powers where decisions of a
bipartisan or non-partisan nature are required, but where the potential for
partisan abuse of such functions and powers has occurred or might in future
occur. Examples include appointment of High Court judges, and the adjudication
of whether a Speaker or President of the Senate has acted in an unfairly
partisan manner. See comments on ss.59 and 60 for further comments on the
Constitutional Council.
Sub-section (7) is based on s.103 establishing the Inter-State Commission,
itself a special Constitutional organ not part of one of the three branches of
government.
- S.106. This has been altered to state clearly that the Constitutions
of the States are subject to this Constitution. This is intended to remove any
doubt. As a result, when the change to a republic occurs, individual States will
not be entitled to retain the Queen as their Head of State.
- S.110. This relates mainly to the position of Head
of State in the States. Although the changes may appear at first glance to be
altering the status quo, they in fact entrench it. Note that the Head of State
and unifying element of all jurisdictions under the current Constitution is the
Queen; under the new Constitution, it is the President who is the Head of State
and unifying element of all jurisdictions. (See also comments about Covering
Clause 2 in Category (c).) Thus:
- The Governor is appointed by the President (instead of by the Queen) and
is the President's representative in the State (instead of the Queen's
representative).
- Adapted from Section 7 of the Australia Act 1986 - all powers of the
President (instead of the Queen) in respect of the State are exercisable by the
Governor of the State. However, the President (instead of the Queen) is not
precluded from exercising any of his powers and functions in respect of the
State.
- The manner in which the Governor of a State is appointed and removed, and
the tenure, powers, functions and all other matters relating to the office of
Governor are up to the State.
There is a definition of the terms "Parliament" and "Executive Council" as it
applies to a State, as it is within the realms of possibility that a State may
decide to call the equivalent body something else (e.g., Assembly or Congress).
- S.117. This has been modified to refer to "a citizen of the
Commonwealth" instead of "a subject of the Queen". Cf amendment to change
obsolete words rec ACC 1976.
- S.126. This has been deleted and analogous provisions included in s.61.
- S.128. It is the President in Council, rather than the President, who
submits a referendum bill to the people, an if passed, the President is required
to assent to the bill.
- S.130. This would probably be redundant in view of other provisions
in the Constitution effectively providing the same. However, other provisions
do not mention the Queen, and this section serves as a clarification.
- S.131. This provides that the Governor-General become the first
President at the time of the establishment of the republic. This provision will
become spent soon after its application.
- S.134. This specifies when the amendments come into force and enables
the States to pass laws relating to the changes before this time. This
provision will become spent soon after its application. Based upon covering
clause 4.
- Preamble. In the opening paragraphs, simple changes have been made
which refer to major periods in the nation's history, including the habitation
of the land by indigenous people, the establishment of the Commonwealth under
the British monarch, and the establishment of a republic, and which affirms our
national values of freedom and democracy and the diversity of our people.
Final paragraph: cf rec CC 1988.
- Covering Clause 2. The term "Crown" is retained for convenience, though it
no longer refers to the Queen. It would be used in two senses - the first being
to the collective bodies politic of the nation (it is used only in this sense in
the revised Constitution) and the second being to the President or some other
person acting with the authority of any body politic (it would be used today in
this sense in legislation, court proceedings etc.).
Although apparently anomalous in a republican context, this usage is
necessary in order to deal with an ambiguity in terminology involving the terms
"Crown", "State" and "Government". The term State is generally used in the
Constitution to refer to the second level body politic of the federation (as
adopted from American usage), but it is also used with the same meaning as
"Crown", such as in the term "Minister of State", used in the Constitution, but
also used in other contexts, such as "Crown land".
The term "Government" is also often used with the same meaning as "Crown",
but this results in another ambiguity as "Government" is also used to mean
"Executive Government", and also to refer to all members of the party or
coalition of parties which support the Prime Minister and the Executive
Government in the House of Representatives.
Due to these ambiguities, the term "State" cannot be used in place of the
term "Crown", as often is the case in a republic. Another term (e.g., "Realm"
or "Federal Polity") could be used in place of Crown, but this would be
unfamiliar and unconventional. Repeated use of phrases such as "The
Commonwealth, the States and the Territories" is verbose and clumsy.
If the ambiguity were resolved by, for example, use of the term "Province" to
apply to the second level body politic of the federation (as it does in Canada),
the term "State" could be used instead of the term "Crown". However, until such
a change in terminology can be agreed upon, the term "Crown" will be used here
in order to maintain consistency and readability; but despite its monarchical
connotations, this is unambiguously a republican version of the Crown.
- S.56.It is more appropriate that the President in Council, rather than
the President (Governor-General), recommend appropriation bills to the
Parliament. In effect, this means that the Executive Government recommends
recommend appropriation bills rather than the President acting according to his
discretion (as would be the case if this were left unaltered). Based on rec CC
1988.
- S.59. The President, like the monarch under the current
constitutional arrangements, is characterised as the Head of State of the
Commonwealth and of all other jurisdictions within the Commonwealth, acting as
the unifying element or linchpin in the federal system. As stated in the
current Preamble, "the people ... have agreed to unite ... in one indissoluble
Federal Commonwealth under the Crown", meaning that it is the Crown which unites
the various polities in the federation. In this respect, the President (as the
personification of "the Crown") simply takes the place of the Queen. Without
such a provision, this unifying element or linchpin in the federal system is
lost.
- S.68. This has been reworded to provide that the President remains,
like the Governor-General, the titular Commander-in-Chief of the defense
forces, but provides expressly that any power as Commander-in-Chief can only be
exercised on the advice of the executive government. Based on rec CC 1988.
- S.69. This is a non-exhaustive list of certain powers of the
President in Council.
- S.73. This clarifies the High Court's power to hear appeals in
respect of any matter from the State Supreme Courts, and removes all references
to the Privy Council. While the High Court cannot be prevented by law
from hearing appeals from State Supreme Courts, it is not by this provision
compelled to grant leave to appeal in respect of every case. As easily as a
greater number of appeals may (perhaps) be made, they could just as easily be
rejected by the High Court.
- S.132. This is a clarification of s.61(1) regarding the sovereign and
prerogative powers of the Head of State. Cf Ireland art.49.
- S.133. This provides for legal continuity of any officer in the
transition to a republic. This provision will become spent soon after its
application. Based on rec CC 1988.
- Schedule II. This second schedule has been added to include the oath
or affirmation to be made by an incoming President.
- Covering Clause 6. For historical, political and perhaps legal
purposes, this retains references to New Zealand and the "northern territory of
South Australia", even though these entities are not States. However, references
to "Colonies" have been changed to "territories" consistent with other
provisions in the Constitution and reflecting of present day conditions.
- Ss.7, 8, 9, 12 and 15. (See also s.7 in Category (f).) In ss.7 and 8
the role of Governors in the choosing of senators has effectively been removed.
If one assumes that State governments always behave well and follow the spirit
of the Constitution, this would not involve any change in the functioning of
government. But there is no good reason why the Executive Government of a State
(which is effectively what "Governor" means here) should have any role in the
election or appointment of senators, especially since it has been established in
the first paragraph of s.7 that senators are the direct representatives of the
people, and especially since this introduces unnecessary complications into the
Constitution and opens the door to the possibility of abuse. In other words, in
so far as the Senate is a States' House, senators represent the people of the
States, not the Executive Governments of the States - but the involvement of
Governors implies that senators represent the Executive Governments of the
States. The involvement of Governors in the Senate probably originates from
provisions in the US Constitution (which no longer apply), which used to provide
that US Senators were appointed by State Governors.
In s.8, deleting the words "in each State" ensures that qualifications for
voting are uniform throughout the whole of the Commonwealth. As it is provided
that qualifications for electors to the Senate is the same as that for the House
of Representatives, the fact of uniformity throughout the Commonwealth of
qualifications is stated explicitly in s.30 (as amended).
In s.9 the role of State governments in determining the method of choosing
the senators is removed. There is no good reason to allow any one State to
mischievously cause Senate elections not to be synchronised throughout the
Commonwealth. This role is similarly removed in s.20.
In ss.12 and 15 also the role of State Governors (i.e., governments) in
determining the issuing of writs for elections of the Senate or of filling of
casual vacancies in the Senate is removed, and the power given to the President,
who must first consult with the Federal Executive Council (in the case of
general Senate elections) or the Constitutional Council (in the case of the
filling of casual vacancies). There is no good reason to open the way for any
one State to ignore the Commonwealth's proposed timetable for Senate elections
and to mischievously call, or refuse to call, a Senate election. A better
solution, however, which would further distance the President from potential
controversy, is that rather than having the President appoint Senators to fill
vacancies (which detracts from the principle in s.7 of the Senators being chosen
directly by the people, and tends to invite mischievous politically motivated
manipulation of this provision), a system of "counting back" should be
prescribed. This has been used successfully in the Tasmanian lower house and
the ACT legislature, both of which use electoral systems similar to the Senate.
- S.11. This section is no longer relevant as State governments, under
the amended Constitution, no longer have any role in providing for their
representation in the Senate. The deletion of this section, though, should not
be construed as limiting the Senate's power to proceed to the dispatch of its
business in the absence of a Senator; this contingency should be provided for in
the rules and orders of the Senate.
- S.17. This simply clarifies that the President of the Senate presides
over the Senate, and also assigns to the President of the Senate the role of
presiding over a joint sitting.
- S.29. This removes the power of the States to legislate with respect
to House of Representatives elections. It also provides that, in the absence of
provisions in Commonwealth law, and all Territories of the Commonwealth shall
together be one electorate, and members shall be elected according to the system
of proportional representation by means of the single transferable vote.
- S.30. This provides that in order to be qualified as an elector of
members of the House of Representatives, a person must at least be an Australian
citizen (expressed as "citizen of the Commonwealth") of the full age of eighteen
years .
- S.31. This provides that laws in respect of the method of elections
for the House of Representatives shall be uniform throughout the Commonwealth.
- S.34. The qualifications of membersof the House of Representatives
laid down here are the minimum qualifications, and may not be relaxed by any
law. Cf substitutions rec ACC 1976, CC 1988.
- S.72. The alternative paragraphs (i) and (ii) provide
that Justices of the High Court be appointed and removed by the President in
accordance with the advice of the Constitutional Council, rather than the
President in Council (i.e., the President in accordance with the advice of the
Federal Executive Council). This extends the notion of an body essentially
independent of the executive government appointing officers officers who, like
in the case of the President, should ideally be non-partisan, independent of
executive government and free from political intervention, and whose role is
fundamental in safeguarding and maintaining our constitutional system and its
values of freedom and democracy. In this way, by closing off one avenue of
potential abuse of power by an executive government, the Doctrine of the
Separation of Powers is strengthened.
- Ss.121 and 122. Provision for the representation in Parliament of New
States and Territories is made subject to the Constitution. Thus, for example,
it would prevent the Parliament from mischievously providing for fifty Senators
from the ACT while the States retained only twelve each.