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Summary of the Constitutional Council model

Introduction
The Constitutional Council model reconciles the two main republican camps the "minimalists" and the "direct electionists".  Public opinion is clearly and consistently in favour of 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 a Head of State appointed by the Parliament, or by an electoral college (appointment committee) or by the Prime Minister is that the people would not elect the Head of State.  However, under present arrangements, the Head of State (the Queen) does not exercise the reserve powers, yet the person who does exercise the reserve powers (the Governor-General) is appointed.  In other words, under current arrangements, the Head of State and the reserve powers are decoupled, yet republicans seem to be blinkered by a misconception that under a republican model the Head of State and the reserve powers must be coupled, with a President (elected or not) exercising the reserve powers.

This model provides for popular election of a President who, like the Queen, does not exercise the reserve powers.  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.
 

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 Constitutional Council also appoints the Speaker (see below under the heading "The Speaker").

The President (as Head of State) 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.

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, powers or functions vested in the President can (unless otherwise provided) only be exercised or performed in accordance with the advice of the Federal Executive Council.

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.
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 powers currently exercisable by the Governor-General or the Governor-General in 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..

Recognising that the Speaker may at times be attending to other matters, a new office of Chancellor of the House of Representatives is created.  The Chancellor would simply preside 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), and would be 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 this, and in particular, the Chancellor does not exercise the reserve powers.

Powers of the Speaker include powers to 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.

For the Speaker:
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 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 include the following:

• (1) The Governor-General appoints and dismisses a Prime Minister.
• (2) The Governor-General may dissolve the House of Representatives.
• (3) The Governor-General may refuse to dissolve the House of Representatives when so advised by the Prime Minister if the Prime Minister has lost the confidence of the House of Representatives or has not yet obtained it.
• (4) The Governor-General may refuse to simultaneously dissolve the House of Representatives and the Senate (i.e., to call a double dissolution) when so advised.

• (1a) 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.
• (1b) 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.
• (2) 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.
• (3) 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.
• (4) The Speaker may refuse to simultaneously dissolve the House of Representatives and the Senate (i.e., to call a double dissolution) when so advised.

Providing for review 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, and the exercise of these reserve powers is not subject to review.  Under current arrangements, in practice, the exercise of these reserve powers by the Governor-General is similarly not subject to 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.  Note that the original section 59, though never invoked, empowers the Queen to disallow laws.

However, should it be considered desirable to do so, it is easy to provide an extra check on the reserve powers of the Speaker by allowing the Constitutional Council act as a "backstop" to review and annul such acts.  I'd suggest that in order to discourage frivolous use of this review and annulment power it should be made quite difficult for the Constitutional Council to act by:

• limiting the period of review to 1 day following the act (any longer would make it difficult to "unscramble the constitutional egg"  -  imagine if a dismissal of a Government and the appointment of a caretaker Government was annulled more than one day thereafter!);
• requiring four out of the five full members to vote in favour of disallowance (i.e., the Constitutional Council would have to be convinced that the annulment was appropriate); and
• requiring that one of those four voting in favour of disallowance be the President (i.e., the President would have to be convinced that the annulment was appropriate).

The Prime Minister and the Federal Executive Council
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.

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.