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The Constitutional Council Model
First Proposed 2002
Last updated 9 June 2003
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Contents
» Draft Constitutions:  Jump to links (on this page) to draft constitutions for the model.
» Summary of the model:  Go to a concise summary of the model.
» Explanation of the model:  Jump (on this page) to a more detailed explanation of the model.
» Longer term reform:  Jump (on this page) to suggestions for longer term reform involving the role of the Constitutional Council.
» Presentation:  Go to an MS PowerPoint presentation which introduces the main features of the Constitutional Council model.  (If you can't read this, you can get MS PowerPoint reader for free  -  click here.)
» Article:  Go to an article as edited version of which was published in the Australian Republican Movment's newsletter about the Constitutional Council model.
 

Draft Constitutions
» Go! to the marked up version of my draft "Constitutional Council model" Constitution with struck out text (indicating deleted words) and bold type (indicating inserted words).
» Go! to the "cleaned" version of my draft "Constitutional Council model" Constitution (struck out text is removed and bold text normalised).
 

Explanation of the Model

Background
This model is a completely fresh, new look at a republican model in the light of the failed 1999 republic referendum.  One of the most significant failures of the referendum was that republicans were divided into two main camps  -  the "minimalists" and the "direct electionists".  Since the referendum, no models (at least that I've been aware of) have appeared which reconciled these camps, and this fact has been my driving motivation in conceiving this model.

Public opinion is clearly and consistently in favour of some sort of model which provides for popular election of the Head of State, and we need to be able to tell the public that they will be able to vote for the Head of State.  One of the major sticking points in popular election models has been that a popularly elected Head of State would also exercise the reserve powers; whilst one of the major sticking points in models providing for an appointed Head of State (appointed by the Parliament, or by an electoral college, or by an appointment committee, or by the Prime Minister) is that the people would not elect the Head of State.

Looking at the current arrangements, it is worth noting the following:

It's clearly possible, therefore, for the Head of State to play only a symbolic role whilst another official acts as a constitutional umpire; that is, the symbolic role and the umpire role can be decoupled.  These days, since the Governor-General performs practically all of the symbolic functions normally attributed to a Head of State, many Australians now regard the Governor-General as a de facto Head of State (or even, despite the misconception, as a Head of State), and the possibility of this decoupling is more difficult to discern.  Nevertheless, looking only at the office of Governor-General, one can clearly identify these two quite distinct roles (symbolic and umpire), and in doing so, it becomes clearer how they can be decoupled.  (Later I will explain why this is desirable.) Professor George Williams explained this well in an article in the Sydney Morning Herald, with my highlighting:
First, he must be a person who can undertake the symbolic aspects of the office.  He should strive to unite the nation at times of national crisis or grief and must be able to represent us overseas.  ...  For this, he requires the broad confidence of the Australian people.

...  Second, the governor-general may act as umpire in times of constitutional crisis.  His broad and undefined reserve powers mean he could be called upon to dismiss a prime minister or to determine who should form government after a close election.  To exercise such powers, he must be above politics.

A crisis could be deepened if the governor-general might be thought, even incorrectly, to favour a party that would dismiss him.  He must not only be impartial, but must be seen to be so.

If the roles are to be decoupled, it is clearly the first (symbolic) role which the Head of State must play.  But the second (umpire) role, involving the exercise of the reserve powers, need not be one performed by the Head of State.  Republicans inadvertently limit their options by failing to realise that under a republican model the first and second roles need not be coupled; on the contrary, the President can be a symbolic Head of State without exercising the reserve powers, whilst the role of umpire (exercising the reserve powers) is played by another officer or body.  The Constitutional Council model, described below, decouples the symbolic role from the umpire role.
 

The Constitutional Council model
This model provides for popular election of a Head of State  -  the President  -  who, like the Queen, does not exercise the reserve powers.  Instead, the reserve powers are exercised by the Speaker, with the office of Speaker reformed to be as independent and impartial as the Governor-General currently should be.  The model neatly combines the best elements of the existing constitutional arrangements and those of the most popular republican models, including the ultra-minimalist, minimalist (i.e., election by special parliamentary majority), electoral college and directly elected non-executive President models.  It might sound like it would have to be complicated to achieve this, but it's surprisingly simple, surprisingly effective and  -  hopefully - surprisingly attractive.  It is useful to take Professor Williams' quote above and to modify it to describe the Constitutional Council model:

The President must be a person who can undertake the symbolic aspects of the office.  He should strive to unite the nation at times of national crisis or grief and must be able to represent us overseas.  ...  For this, he requires the broad confidence of the Australian people.

The Speaker may act as umpire whilst presiding over the House of Representatives and in times of constitutional crisis.  His broad and undefined reserve powers mean he could be called upon to dismiss a prime minister or to determine who should form government after a close election, and his powers whilst presiding over the House of Representatives mean that he must constantly use fairness, not political loyalties, as his guide.  To exercise such powers, he must be above politics.  A crisis could be deepened if the Speaker might be thought, even incorrectly, to favour a party that would dismiss him.  He must not only be impartial, but must be seen to be so.

With the President performing a symbolic role, it is most appropriate for the President to be popularly elected; and with the Speaker performing the umpire role (in Parliament and when exercising the reserve powers), it is most appropriate for the Speaker to be appointed in a manner likely to produce someone who is above politics.
 

The President and the Constitutional Council
This model proposes a President as Head of State to replace the Queen and the Governor-General.  A Constitutional Council would consist of five directly elected "full" members (these members have a vote on the Constitutional Council) and four ex officio "associate" members (the Speaker, the immediate past Speaker, the immediate past President and the the immediate past Vice-President ) (these members do not have a vote on the Constitutional Council), and one of these full members would be the President.  The model provides for two options regarding how the President is chosen from amongst these full members  -  either the Constitutional Council elects one if its full members to be President, or the full member receiving the highest popular vote would automatically become President.  One member would also be similarly chosen to be the Vice-President.

The President and the Constitutional Council (severally or jointly) would perform a mainly ceremonial and symbolic role.  The President, with the consent of the Constitutional Council, may send bills back to the Parliament for reconsideration once, (a power also enjoyed but never exercised by the Governor-General), but he has no power to veto bills (a power, incidentally, which the Queen currently enjoys but has never exercised).  The President retains none of the reserve powers  -  these are now exercised by the Speaker.  The President and the Constitutional Council are entitled to be advised, to encourage and to warn, and one of their key roles would be to defend (within the bounds of their constitutional powers) the democratic constitutional order of the nation.

For the President and the Constitutional Council:
Term:  6 years.
Eligibility:  Same as for House of Representatives, but can't be an MP or a member of a political party.
Nomination:  1000 nominators.  Nominators may be anyone eligible to vote for the House of Representatives.
Appointment:  Constitutional Council is directly elected.  Under option A, the Constitutional Councillor achieving the highest vote becomes the President.  Under option B, the Constitutional Council chooses one of its number to be President.  Under option C, the Parliament may decide from time to time between option A and option B.
Removal:  2/3 resolution of both Houses.
Casual vacancy on Constitutional Council:  Counting back method used to determine who fills the vacancy.
Casual vacancy in office of President:  Vice-President.
 

The Speaker
The Speaker  -  not the President  -  would assume the reserve powers now exercisable by the Governor-General whilst continuing to be the presiding officer of the House of Representatives.  A number of the remaining non-reserve, nominally discretionary powers (i.e., powers which in theory might allow for the exercise of some discretion but which in practice, by convention, are exercised in accordance with the advice of the Prime Minister or of the Federal Executive Council) and explicitly non-discretionary powers currently exercisable by the Governor-General or the Governor-General in Council (all of which were exercised in accordance with the advice of the Prime Minister or of the Federal Executive Council) would, under this model, be exercisable directly by the Prime Minister or the Federal Executive Council.

Thus, the office of Speaker is reformed to be a more independent, non-partisan office, with the Speaker nominated by the present or any past Speaker, by any past or present Prime Minister, by the Leader of the Opposition, or by any five M.P.s.  The Constitutional Council would then elect a Speaker from amongst these candidates.  The method of nomination and appointment would enable candidates of similar calibre, aptitude and respectability to that of the Governor-General to be selected for the office of Speaker.  The Speaker could be dismissed by the Constitutional Council at its discretion, but only upon a resolution requesting the same by the House of Representatives.  A full list of powers of the President, the Constitutional Council, the Speaker and the Federal Executive Council appears below.

The bonus of this model is that not only does the question of codification or exercise of reserve powers by an elected President not present a problem (as the reserve powers would not be exercisable by a popularly elected President who could claim to have a competing mandate against the Prime Minister), but that the office of Speaker is depoliticised, as all reasonable people would agree it should be, restoring some dignity to, and respect for, the House of Representatives and its members.  Note that:

Term:  5 years.
Eligibility:  Same as for House of Representatives, but can't be an MP or a member of a political party.
Nomination:  Incumbent or past Speaker, incumbent or past Prime Minister, incumbent Leader of the Opposition, any five MPs.
Appointment:  Constitutional Council chooses the Speaker from the list of candidates.
Removal:  By Constitutional Council following 2/3 resolution of the House of Representatives.
Casual vacancy:  Deputy Speaker.
 

The Chancellor
Recognising that the Speaker may at times be attending to other matters (e.g., Constitutional Council meetings or the exercise of reserve powers), a new office of Chancellor of the House of Representatives is created.  The Chancellor is equivalent to a Speaker pro tempore, who presides over the House of Representatives when the Speaker (or a deputy of the Speaker) is not available to preside, much like a deputy of the Speaker.  This is comparable to:

The Chancellor is elected in the same way as the Speaker is elected under current constitutional arrangements.  The Chancellor does not exercise any powers or functions of the Speaker apart from presiding over the House in the Speaker's absence, and in particular, the Chancellor does not exercise the reserve powers.

The term "Chancellor" is used as this title is applied to a similar office in the UK Parliament; namely, the Lord Chancellor.  However, the title is unimportant and I wouldn't care if an alternative title were preferred, or even if the titles "Speaker" and "Chancellor" were swapped.

Term:  Until expiry of House of Representatives.
Eligibility:  Same as for House of Representatives.
Nomination:  Any MP.
Appointment:  Elected by House of Representatives.
Removal:  By Speaker or by House of Representatives.
Casual vacancy:  Nothing prevents House from choosing Deputy Chancellor(s) or Acting Chancellor(s).
 

Advantage of the Constitutional Council Model over the Sovereign Council Model
The advantage of this model over my Sovereign Council model of 2001 is that in the Constitutional Council model, the office of Governor-General is not retained.  This addresses the concern that the Sovereign Council model is a "bicephalic" (two-headed) model with a President and a Governor-General, whilst retaining all of its advantages and additionally addressing the perennial issue of depoliticisation of the office of Speaker.  Another concern would be with potential overlap and/or conflict of Head of State type roles and responsibilities between the President and the Governor-General:  whereas under current arrangements the Head of State is absent for the vast majority of the time, the Governor-General plays a Head of State type role;  however, as a President would be present for the vast majority of the time, a large slice of the Governor-General's role under current arrangements would pass to the President, raising the question of whether the Governor-General actually has enough to do, and thus whether the Governor-General adds sufficient value.
 

Two options for election of the President: Direct Popular Election and Indirect Popular Election
Two types of popular election are proposed for the President and Vice-President: direct and indirect popular election.  This is set out in section 2, in which three options are provided, only one of which must be chosen to be included in the final Constitution:

OPTION A. Direct popular election.  This option provides that when the Council is elected, the candidate with the highest vote becomes the President and the candidate with the second highest vote becomes the Vice-President.

OPTION B. Indirect popular election.  This option provides that after the Council is elected, the Council meets to choose one of its number to be President and one to be Vice-President.  The Council member chosen as President need not be the member who obtained the highest vote at the election of the Council, though the President will of course have been directly elected as a Council member.

OPTION C. Parliament decides.  This option empowers the Parliament to decide from time to time, as it sees fit, between direct (option A) or indirect (option B) popular election.  This provides the greatest flexibility, allowing the Parliament to change from one method to the other should it deem one model preferable to another, or should popular opinion demand one model over another.  By default, option B applies; however, it could be expected that popular opinion would be more in favour of option A.  By having option B apply first, the model can be tried out for, say, one or two Presidential terms, and if public opinion remains strongly in favour of model A, the Parliament can prescribe this without the need for another referendum.

These three options are very simply provided for in section 2 alone.  No other parts of the Constitution need to be changed.
 

The reserve powers
Reserve powers constitute certain discretionary powers which, under current arrangements, may be exercised by the Governor-General.  The reserve powers of the Governor-General under current arrangements include the following:

Reserve powers under the Constitutional Council model are essentially the same as under current arrangements, albeit with minimal codification so as to clarify, but not restrict, the reserve powers  -  and all are exercised by the Speaker: There is one instance in which the reserve powers would be exercisable by the President, and the probablility of this would be highly unlikely.  Whilst an action to dismiss the Speaker is pending, s35E allows the President to exercise the reserve powers of the Speaker, but then only with the consent of the Constitutional Council.
 

Classification of powers and functions
Under current arrangements, I have classified certain powers and functions (mainly of the Queen and the Governor-General) as follows.  These are my terms which I have used for the sake of comparison with the Constitutional Council model; they are not used in the Constitution.

Under the Constitutional Council model,  I have classified certain powers and functions (mainly of the President and the Speaker) as follows: A complete list of the above powers and functions, including the officer or body to which they are assigned, appears below under the heading "Powers and functions of the Principal Officers of the Commonwealth".
 

Providing for veto by the Constitutional Council of the exercise of the reserve powers by the Speaker
The draft Constitutional Council model constitutions, as presented on this web site, provide for the exercise of the reserve powers by the Speaker.  The exercise of these reserve powers may be defined so as to be subject to veto by the Constitutional Council, or so as not to be subject to veto.  Under current arrangements, in practice, the exercise of these reserve powers by the Governor-General is not subject to veto or review (although monarchists would disingenuously suggest that the Queen plays some role as a "backstop" by checking, reviewing or limiting the powers of the Governor-General).  This was tested in 1975 when the Speaker requested intervention from the Queen following the sacking of Gough Whitlam as Prime Minister, and the Queen replied that it was improper for her to intervene, and again in 2003 when the Queen refused to become involved in the controversy surrounding then Governor-General Dr. Peter Hollingworth.

Should it be considered desirable to make the exercise of the reserve powers subject to veto, it is easy to provide for the Constitutional Council to act as a "backstop" to review and possibly veto the exercise of reserve powers.  I'd suggest that in order to discourage frivolous use of this review and veto power it should be made quite difficult for the Constitutional Council to act by:

Providing for this in the Constitutional Council model Constitution is actually very easy.  An additional section, 126D, could be added to define the process to be followed:
126D. When a provision of this Constitution provides that an act of the Speaker is subject to the review of the Constitutional Council, the Speaker may act (or omit to act) according to his discretion, except that no more than four days before so acting he shall inform the Constitutional Council of his intention to act, and within one day of the Speaker having so acted, the Constitutional Council may, by a resolution affirmed by four full members (one of whom shall be the President), disallow the act of the Speaker, and such disallowance shall annul the act from the time the act was performed.
Note that the Speaker would have to inform the Constitutional Council of his intention to act so that it could be prepared to convene to consider review and veto should it see fit to do so.  Note also that this does not allow the Constitutional Council to itself assume the reserve powers of the Speaker, but only to veto the exercise thereof in specific instances.  Note also that in the one instance in which the reserve powers would be exercisable by the President (i.e., whilst an action to dismiss the Speaker is pending  -  see s35E) the exercise of the reserve powers requires the consent of the Constitutional Council, so a simple majority vote of the Constitutional Council in this case (rather than a four fifths vote) could prevent (and therefore, effectively veto) the exercise thereof in these instances.

Section 126D is based on the original section 59, which, though never invoked, empowers the Queen to veto laws:

The Queen may disallow any law within one year from the Governor-General's assent, and such disallowance on being made known by the Governor-General by speech or message to each of the House of the Parliament, or by Proclamation, shall annul the law from the day when the disallowance is made known.
In addition, it would be necessary to make a simple amendment to the five sections which assign the reserve powers to the Speaker.  These amendments involve the insertion of the words in green, below:
28. [paragraph 2] However, the Speaker may, according to his discretion, but subject to the review of the Constitutional Council, refuse to dissolve the House of Representatives on the advice of the Prime Minister when a Prime Minister has lost the confidence of the House of Representatives or has not yet obtained it.
57. [paragraph 2] However, the Speaker may, according to his discretion, but subject to the review of the Constitutional Council, refuse to dissolve the Senate and the House of Representatives simultaneously.
63. [paragraph 2] Not later than ten days after the day appointed for the return of the writs after any general election, or not later than ten days after the office of Prime Minister becomes vacant, the Speaker shall, according to his discretion, but subject to the review of the Constitutional Council, appoint as Prime Minister that person whom he believes would be most likely to command the confidence of the House of Representatives.
63A. The Speaker may, according to his discretion, but subject to the review of the Constitutional Council, remove from office a Prime Minister who has lost the confidence of the House of Representatives and has failed to resign, unless the Prime Minister has advised the Speaker to dissolve the House of Representatives, and the Speaker has accepted that advice.
63B. If the Speaker believes that the Executive Government of the Commonwealth is breaching this Constitution, or is not complying with an order of a court, or is persisting in other unlawful behaviour, the Speaker may, according to his discretion, but subject to the review of the Constitutional Council, dissolve the House of Representatives or dissolve the House of Representatives and remove the Prime Minister from office. In the event of the Prime Minister being so removed from office, the Speaker may, according to his discretion, appoint as Prime Minister such other person whom the Speaker believes will take all reasonable steps to end the contravention and who will maintain the administration of the Commonwealth pending the outcome of the general election following such dissolution.
These amendments are included in the drafts in green so as to clearly identify the fact that they are optionally included.

Powers and functions of the "Principal Officers of the Commonwealth"
The term "Principal Officers of the Commonwealth" is a new term which has been created for convenience only, obviating the need to enumerate all offices to which the term applies in every instance.  The "Principal Officers of the Commonwealth" are defined in section 127, and comprise:

"Principal Officers of the Commonwealth" are referred to in sections 51 (xl), 126A, 126B and 126C, and clauses 9 and 10 of Schedule II.

Powers and functions of the President
The President is the Head of State, and performs a mainly ceremonial and symbolic role.  All powers and functions of the President are, like the Governor-General, subject to due regard being had to constitutional conventions, and with the exception of powers or functions expressly vested in the President by the Constitution (see the table below), powers or functions vested in the President (e.g., by legislation) can (unless otherwise provided) only be exercised or performed in accordance with the advice of the Federal Executive Council.
 
Constitutional Council model Type of power/function Current arrangements Type of power/function
s3A: The President may declare that an Acting President cease to act as President. Discretionary N/A N/A
s7: Names of senators chosen for each State are certified by the Governor to the President. Non-
discretionary
s7: Names of senators chosen for each State are certified by the Governor to the Governor-General. Non-
discretionary
s19: A senator may resign his seat by writing to the President in the absence of the President of the Senate. Non-
discretionary
s19: A senator may resign his seat by writing to the Governor-General in the absence of the President of the Senate. Non-
discretionary
s21: In the absence of the President of the Senate the President notifies a Governor of a vacancy in the Senate. Non-
discretionary
s21: In the absence of the President of the Senate the Governor-General notifies a Governor of a vacancy in the Senate. Non-
discretionary
s35D: The President administers oath/affirmation of office to the Speaker. Non-
discretionary
Not specified in the Constitution. N/A
s35E: The President exercises (with the consent of the Constitutional Council) the powers and functions of the Speaker whilst an action to dismiss the Speaker is pending, except that the Acting Speaker presides during this time over the House of Representatives. Reserve N/A as there is no provision for an action being taken to dismiss the Governor-General, but note that whereas the President would be able to exercise reserve powers only at this time, the GG can exercise the reserve powers at all times. Reserve
s35E: The Speaker may resign his office or seat by writing to the President. Non-
discretionary
Not specified in the Constitution. N/A
s37: A member of the H of R may resign his seat by writing to the President in the absence of the Speaker. Non-
discretionary
s37: A member of the H of R may resign his seat by writing to the Governor-General in the absence of the Speaker. Non-
discretionary
s42: The President administers the oath/affirmation of allegiance to MPs. Non-
discretionary
s42: The Governor-General administers the oath/affirmation of allegiance to MPs. Non-
discretionary
ss57,58: The President may assent to bills presented for assent.  He may withhold assent and (with the consent of the Constitutional Council) return bills to the Parliament with recommendations, but if the Parliament again passes the bill he may not again return it. Discretionary ss57,58. The Governor-General may assent to bills presented for assent.  He may withhold assent and return bills to Parliament with recommendations.  He may reserve the bill "for the Queen's pleasure".
s59.  The Queen may veto any law within a year of its having been assented to.
Nominally discretionary
s68: The President is Commander in Chief of the military, but any powers/functions he exercises/performs must be in accordance with the advice of the Federal Executive Council. Non-
discretionary
s68: The Governor-General is Commander in Chief of the military. Nominally discretionary
s69: The President, acting only in accordance with the advice of the Federal Executive Council, declares war, appoints diplomatic representatives, grants reprieves and pardons and confers honours and titles. Non-
discretionary
Not specified in the Constitution. N/A
s70A: The immediate past President and the immediate past Vice-President are associate (non-voting) members of the Constitutional Council. N/A N/A N/A
s70F: A member of the Constitutional Council may resign his seat by writing to the President. Non-
discretionary
N/A N/A
s70I: The President presides over the Constitutional Council, convenes meetings of the Constitutional Council and has a casting vote when votes on the Constitutional Council are tied. Discretionary N/A N/A
s72: The President appoints the Justices of the High Court in accordance with the advice of the Federal Executive Council. Non-
discretionary
s72: The Governor-General appoints the Justices of the High Court in accordance with the advice of the Federal Executive Council. Non-
discretionary
s72: The President removes Justices of the High Court in accordance with the advice of the Federal Executive Council (under certain conditions). Non-
discretionary
s72: The Governor-General removes Justices of the High Court in accordance with the advice of the Federal Executive Council (under certain conditions). Non-
discretionary
s72: A Justice or a judge may resign his office by writing to the President. Non-
discretionary
s72: A Justice or a judge may resign his office by writing to the Governor-General. Non-
discretionary
s103: The President appoints the members of the Inter-State Commission in accordance with the advice of the Federal Executive Council. Non-
discretionary
s103: The Governor-General appoints the members of the Inter-State Commission in accordance with the advice of the Federal Executive Council. Non-
discretionary
s103: The President removes members of the Inter-State Commission in accordance with the advice of the Federal Executive Council (under certain conditions). Non-
discretionary
s103: The Governor-General removes members of the Inter-State Commission in accordance with the advice of the Federal Executive Council (under certain conditions). Non-
discretionary
s127: References to the Crown are deemed to refer in a symbolic and ceremonial sense to the President. N/A s2: The Governor-General is the Queen's representative. N/A
s128: The President assents to bills amending the Constitution if passed at a referendum. Non-
discretionary
s128: The Governor-General assents to bills amending the Constitution if passed at a referendum. Non-
discretionary

Powers and functions of the Constitutional Council
The Constitutional Council appoints the President, the Vice-President and the Speaker.  Otherwise it performs a mainly ceremonial and symbolic role.
 
Constitutional Council model Type of power/function Current arrangements Type of power/function
s2 [option B]: The Constitutional Council elects one of its members to be President and one to be Vice-President. Discretionary N/A N/A
s3. The Speaker and the Constitutional Council may declare the President temporarily incapacitated. Discretionary N/A N/A
s35A. In the absence of nomination of candidates for the office of Speaker, the Constitutional Council may nominate candidates for the office. Discretionary N/A N/A
s35B. The Constitutional Council chooses one of the candidates for the office of Speaker to be the Speaker.  The candidates are nominated by the House of Representatives. Discretionary s2. The Queen appoints the Governor-General [on the advice of the Prime Minister].
s35. The House of Representatives chooses one of its members to be Speaker.
s2. Discretionary (for the PM)
s35. Discretionary (for the House of Reps)
s35E. The Constitutional Council may remove the Speaker from office on an address from the House of Representatives praying for removal on the ground of proved misbehaviour or incapacity. Discretionary s2. [The Queen removes the Governor-General on the advice of the Prime Minister]. s2. Discretionary (for the PM)
s35E. The Constitutional Council may consent to the exercise by the President of powers or functions of the Speaker whilst an action to dismiss the Speaker is pending.  (During this time the Acting Speaker presides over the House of Representatives.) Discretionary N/A as there is no provision for an action being taken to dismiss the Governor-General, but note that whereas the President would be able to exercise reserve powers only at this time, the GG can exercise the reserve powers at all times. Reserve
s35F. The Constitutional Council may consent to an appointment by the Speaker of a deputy to the Speaker. Discretionary s126. The Queen may authorise the Governor-General to appoint a deputy to the Governor-General. Nominally discretionary
s35G. The Constitutional Council may prescribe officers, and the precedence of those officers, to act as Speaker in the absence of deputies of the Speaker. Discretionary N/A N/A
s35G. The Constitutional Council may declare the Speaker temporarily incapacitated. Discretionary Not specified in the Constitution. N/A
s70. The Constitutional Council may engage in any symbolic or ceremonial functions. Miscellaneous Implied; e.g., in first sentence of the Preamble. Miscellaneous
s70. The Constitutional Council may seek advice, encourage or warn. Miscellaneous Implied; e.g., in first sentence of the Preamble. Miscellaneous
s110A. The Constitutional Council may, if authorised by the laws of a State, and if it agrees to do so, play a role in the nomination, designation and dismissal of the Governors of the States. Miscellaneous Specified in State Constitutions and the Australia Act(s): The Queen appoints and dismisses the Governors of the States. Nominally discretionary
s126A. The Constitutional Council may set a date that an act which is required by the Constitution to be performed, but which the relevant officer refuses to perform or fails to perform, is nevertheless deemed to be performed.  (The Federal Executive Council may exercise the same power.) Discretionary N/A N/A

Powers and functions of the Speaker
The Speaker is the presiding officer of the House of Representatives and is a non-voting member of the Constitutional Council.  He can appoint and dismiss the Prime Minister, dissolve the House of Representatives, dismiss the Chancellor, issue writs for elections for the House of Representatives, summon the Parliament and convene joint sittings, and recommend appropriation bills to Parliament.
 
Constitutional Council model Type of power/function Current arrangements Type of power/function
s2A. The Speaker appoints officers to administer the oath/affirmation of office to the President and Vice-President where those otherwise provided for are unavailable and where no other provision has been made. Discretionary Not specified in the Constitution. N/A
s3. The Speaker appoints officers to act as President where those otherwise provided for are unavailable and where no other provision has been made. Discretionary s4. The Queen may appoint a person to administer the Government of the Commonwealth in place of the Governor-General. Nominally discretionary
s3. The Speaker and the Constitutional Council may declare the President temporarily incapacitated. Discretionary Not specified in the Constitution. N/A
s5. The Speaker may appoint times for the holding of sessions of Parliament (including joint sittings), and may prorogue the Parliament. Qualified discretionary s5. The Governor-General may appoint times for the holding of sessions of Parliament, and may prorogue the Parliament. Nominally discretionary
s5. The Speaker may (subject to other provisions) dissolve the House of Representatives.  This power is defined and constrained by other powers listed here. Miscellaneous s5. The Governor-General may dissolve the House of Representatives. Nominally discretionary
s28. The Speaker must dissolve the House of Representatives when so advised by the Prime Minister (except that he may refuse to do so if the Prime Minister has lost the confidence of the House of Representatives or has not yet obtained it). Non-discretionary s28. The Governor-General may dissolve the House of Representatives before the expiration of its term. Nominally discretionary
s28. The Speaker may refuse to dissolve the House of Representatives if the Prime Minister has lost the confidence of the House of Representatives or has not yet obtained it. Reserve s57. [Implies that the Governor-General may refuse to dissolve the House of Representatives before the expiration of its term.] Reserve
s32. The Speaker issues writs for general elections of members of the House of Representatives. Non-discretionary s32. The Governor-General in Council issues writs for general elections of members of the House of Representatives. Non-discretionary
s33. The Speaker issues writs for the election of a new member to a vacancy in the House of Representatives. Non-discretionary s33. Same. Non-discretionary
s35. The Speaker presides over the House of Representatives. Miscellaneous s35. Same. Miscellaneous
s35A. The Speaker may nominate candidates for the office of Speaker. Discretionary s35. The House of Representativeschooses the Speaker. Discretionary
s35F. The Speaker may (with the consent of the Constitutional Council) appoint a deputy and may assign powers and functions to the deputy. Discretionary Not specified in the Constitution.
C.f. s126. The Queen may authorise the Governor-General to appoint deputies.
Nominally discretionary
s35G. The Speaker appoints officers to act as Speaker where those otherwise provided for are unavailable and where no other provision has been made. Discretionary N/A N/A
s35H. The Speaker may declare that an Acting Speaker cease to act as Speaker. Discretionary Not specified in the Constitution. N/A
s36. The Speaker may remove the Chancellor of the House of Representatives from office. Discretionary N/A N/A
s36. The Chancellor may resign his office by writing to the Speaker. Non-discretionary C.f. s35.  The Speaker may resign his office by writing to the Governor-General. Non-discretionary
s37. A member of the House of Representatives may resign his seat by writing to the Speaker. Non-discretionary s37. Same. Non-discretionary
s56. The Speaker recommends appropriation bills. Qualified discretionary s56. The Governor-General recommends appropriation bills. Nominally discretionary
s57 (1st paragraph). The Speaker may dissolve the House of Representatives and the Senate (a double dissolution) when so advised by the Federal Executive Council and when the conditions for a double dissolution (involving disagreement between the Houses) have been met. Non-discretionary, but read in conjunction with s57 (2nd paragraph) s57. The Governor-General may dissolve the House of Representatives and the Senate (a double dissolution) when the conditions for a double dissolution (involving disagreement between the Houses) have been met. Reserve
s57 (2nd paragraph). The Speaker may refuse to dissolve the House of Representatives and the Senate (a double dissolution). Reserve s57. [Implies that the Governor-General may refuse to dissolve the House of Representatives and the Senate (a double dissolution).] Reserve
s57 (3rd paragraph). The Speaker may convene a joint sitting after a double dissolution. Qualified discretionary s57. The Governor-General may convene a joint sitting after a double dissolution. Nominally discretionary
s63. The Speaker appoints as Prime Minister the person whom he believes would be most likely to command the confidence of the House of Representatives, unless the House of Representatives declares confidence in another person, in which case the Speaker must appoint that person. Reserve Not explicit in the Constitution, but see s62 (Governor-General appoints Federal Executive Council) and s64 (Governor-General appoints Ministers). Reserve
s63A. The Speaker may remove the Prime Minister from office if he has lost the confidence of the House of Representatives and has failed to resign, unless the Prime Minister has advised the Speaker to dissolve the House of Representatives and the Speaker has accepted the advice. Reserve Not explicit in the Constitution, but see s62 (Governor-General appoints Federal Executive Council) and s64 (Governor-General appoints Ministers). Reserve
s63B. If the executive government is behaving unlawfully, the Speaker may dissolve the House of Representatives, and he may also remove the Prime Minister from office and appoint a caretaker Prime Minister. Reserve Not explicit in the Constitution, but see s62 (Governor-General appoints Federal Executive Council), s64 (Governor-General appoints Ministers) s5 and s28 (Governor-General may dissolve House of Representatives). Reserve
s70A. The Speaker(and the immediate past Speaker) are ex-officio non-voting members of the Constitutional Council. Miscellaneous N/A N/A
s70C. The Speaker issues writs for Constitutional Council elections.. Non-discretionary N/A N/A

Powers and functions of the Federal Executive Council
The Federal Executive Council, which is headed by the Prime Minister, is the principal organ of the executive government.  It advises the Speaker in respect of the exercise of certain powers (calling a double dissolution, summoning the Parliament and convening joint sittings, recommending appropriation bills to Parliament), establishes departments, appoints public servants and other officers, and advises the President in respect of the exercise of certain powers.

All powers and functions of the Federal Executive Council are discretionary.  The following powers and functions are listed in order of their appearance in the Constitution:
 
Constitutional Council model Type of power/function Current arrangements Type of power/function
s5. The Federal Executive Council may advise the Speaker to appoint times for the holding of sessions of Parliament, and to prorogue the Parliament. Discretionary s5. The Governor-General may appoint times for the holding of sessions of Parliament, and may prorogue the Parliament. Nominally discretionary
s56. The Federal Executive Council may advise the Speaker to recommend appropriation bills. Discretionary s56. The Governor-General recommends appropriation bills. Nominally discretionary
s57. The Federal Executive Council may advise the Speaker to call a double dissolution when the conditions for a double dissolution (involving disagreement between the Houses) have been met. Discretionary s57. The Governor-General may dissolve the House of Representatives and the Senate (a double dissolution) when the conditions for a double dissolution (involving disagreement between the Houses) have been met. Nominally discretionary
s57. The Federal Executive Council may advise the Speaker to convene a joint sitting after a double dissolution.  (The Speaker may also exercise this power independently.) Discretionary s57. The Governor-General may convene a joint sitting after a double dissolution. Nominally discretionary
s60. The Federal Executive Council administers the Government of the Commonwealth, and the executive power of the Commonwealth is vested in and exercisable by it.  It exercises the powers and functions of, and enjoys the rights, privileges and immunities of, the Crown in right of the Commonwealth. Discretionary s61. The executive power of the Commonwealth is vested in the Queen and executable by the Governor-General. Nominally discretionary
s64. The Federal Executive Council may establish departments. Discretionary s64. The Governor-General in Council may establish departments. Discretionary
s67. The Federal Executive Council may appoint all other officers of the executive government. Discretionary s67. The Governor-General in Council may appoint all other officers of the executive government. Discretionary
ss68, 69, 72, 103. The Federal Executive Council advises the President in respect of the exercise/performance of certain powers/functions (see the powers of the President). Discretionary Not specified in the Constitution. N/A
s126A. The Federal Executive Council may set a date that an act which is required by the Constitution to be performed, but which the relevant officer refuses to perform or fails to perform, is nevertheless deemed to be performed.  (The Constitutional Council may exercise the same power.) Discretionary Not specified in the Constitution. N/A

Powers and functions of the Prime Minister
The Prime Minister is the Head of Government.  He/she can advise the Speaker to dissolve the House of Representatives, submit nominations (along with others) for the office of Speaker to the Constitutional Council, is President of the Federal Executive Council and decides on the composition of the Cabinet/Ministry.

All powers and functions of the Prime Minister are discretionary.  The following powers and functions are listed in order of their appearance in the Constitution:
 
Constitutional Council model Type of power/function Current arrangements Type of power/function
s28. The Prime Minister may advise the Speaker to dissolve the House of Representatives. Discretionary Not specified in the Constitution. N/A
s35A. The Prime Minister may nominate the Speaker (others also may nominate the Speaker). Discretionary s35. The House of Representatives chooses the Speaker. Discretionary
s63. The Prime Minister is President of the Federal Executive Council and convenes meetings of the Federal Executive Council. Discretionary Not specified in the Constitution.
C.f. s62. The Federal Executive Council is summoned by the Governor-General.
Nominally discretionary
s63. The Prime Minister appoints and dismisses Ministers and assigns portfolios to them. Discretionary s62 and s64. The Governor-General appoints and dismisses Ministers and assigns portfolios to them. Nominally discretionary

Longer Term Reform

There is, potentially, scope for other powers to be assigned to the President or to the Constitutional Council at some future time, but I would not recommend that consideration be given to these suggestions at any referendum to establish a republic - subsequent referendums should decide these matters.  These powers would be exercised by the President acting with the advice and consent of the Constitutional Council, and could include:


If you'd like to contact me, please email me at petergc@bigfoot.com. I'd love to hear your comments and criticisms!

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