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A Constitution for an Australian Republic

Draft by Peter Crayson

The "ConCon" Model

A republican Constitution consistent with the communiqué issued by the 1998 Constitutional Convention, providing for the choosing of candidates for the office of President by a special committee, joint nomination by the Prime Minister and the Leader of the Opposition, and election by a super-majority of a joint sitting of Parliament.

Provisions which are spent or obsolete, or which otherwise need to be deleted (e.g., in order to establish a republic) are struck out by rules through the relevant words.

New provisions are printed in bold type. Explanations of reasons for changes and references to sources are in red italics following the relevant section. Additional amendments which could be included in the republic referendum or saved for a later referendum, including a new Preamble, provision for popular election of the President and bipartisan appointment of High Court judges, are in blue italics.

Click here for a "cleaned" version of the "ConCon" Constitution, in which text highlighting (including references to deleted and inserted text) and explanatory comments have been removed.

Click here for explanatory comments on how the amendments accord with the communiqué of the Constitutional Convention.

Click here for explanatory comments on the Preamble, and how it accords with the communiqué of the Constitutional Convention.


COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT

THE CONSTITUTION

(63 & 64 VICTORIA, CHAPTER 12)

An Act to constitute the Commonwealth of Australia

[9th July 1900]

Whereas the people of New South Wales, Victoria, South Australia, Queensland and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established:

And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:

Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
The ConCon communiqué recommended the retention of the original Preamble in the Constitution Act, with the new Preamble within the Constitution proper. Of the remaining covering clauses, it is possible to delete those which are spent and move others into the Constitution proper.

1. This Act may be cited as the Commonwealth of Australia Constitution Act.
If the Constitution Act is to be retained along with the original Preamble (as per the ConCon communiqué), it is also necessary to retain Covering Clauses 1 and 9 as Covering Clauses outside of the Constitution proper.

Short title

2. The provisions of this Act referring to the Queen shall extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom.
Moved to s61(4).

Act to extend to the Queen's successors

3. It shall be lawful for the Queen, with the advice of the Privy Council, to declare by proclamation that, on and after a day therein appointed, not being later that one year after the passing of this Act, The people of New South Wales, Victoria, South Australia, Queensland and Tasmania, and also, if Her Majesty is satisfied that the people of Western Australia have agreed thereto, of Western Australia, shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia. But the Queen may, at any time after the proclamation, appoint a Governor-General for the Commonwealth.
Redundant.

Proclamation of Commonwealth

4. The Commonwealth shall be established, and the Constitution of the Commonwealth shall take effect, on and after the day so appointed. But the Parliaments of the several colonies may at any time after the passing of this Act make any such laws, to come into operation on the day so appointed, as they might have made if the Constitution had taken effect at the passing of this Act.
Spent.

Commencement of Act

5. This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen's ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.
Moved to s124A.

Operation of the Constitution and laws

6."The Commonwealth" shall mean the Commonwealth of Australia as established under this Act.

"The States" shall mean such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the northern territory of South Australia, as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called "a State".

"Original States" shall mean such States as are parts of the Commonwealth at its establishment.
Moved to s124B.

Definitions

7. The Federal Council of Australasia Act, 1885, is hereby repealed, but so as not to affect any laws passed by the Federal Council of Australasia and in force at the establishment of the Commonwealth.

Any such law may be repealed as to any State by the Parliament of the Commonwealth, or as to any colony not being a State by the Parliament thereof.
Moved to Transitional and Temporary Provisions.

Repeal of Federal Council Act

8. After the passing of this Act the Colonial Boundaries Act, 1895, shall not apply to any colony which becomes a State of the Commonwealth; but the Commonwealth shall be taken to be a self-governing colony for the purposes of that Act.
Moved to Transitional and Temporary Provisions.

Application of Colonial Boundaries

9. The Constitution of the Commonwealth shall be as follows:
If the Constitution Act is to be retained along with the original Preamble (as per the ConCon communiqué), it is also necessary to retain Covering Clauses 1 and 9 as Covering Clauses outside of the Constitution proper.

Constitution


THE CONSTITUTION OF THE
COMMONWEALTH OF AUSTRALIA

Whereas the Aboriginal and Torres Strait Islander peoples of Australia have continuously occupied the land and exercised custodianship thereof over many tens of thousands of years, over which time they established a rich cultural heritage:

And whereas the people of New South Wales, Victoria, South Australia, Queensland, Tasmania and Western Australia, humbly relying on the blessing of Almighty God, agreed to unite on the first day of January, 1901 in one indissoluble Federal Commonwealth, named the Commonwealth of Australia, under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution thereby established:

And whereas the Commonwealth of Australia evolved into a sovereign, independent and democratic nation under the Crown:

And whereas sovereignty ultimately resides in the People of the Commonwealth of Australia, from whom the legal and moral authority of this Constitution is drawn:

We the People of Australia,

finding unity in diversity,

acknowledging the equality of all before the law, including equality irrespective of gender,

believing in liberty, equity and fairness,

respecting the land and the environment which we share,

and declaring ourselves to be a sovereign, independent and representative democracy based on the principles of responsible and accountable government, the rule of law and the separation of powers,

have decided to constitute the Commonwealth of Australia on the first day of January, 2001 as a federal republic, and hereby commit ourselves to this Constitution.
New Preamble within the Constitution proper, as per the ConCon communiqué.

[Preamble]

ThisThe Constitution is divided as follows:-

Chapter I - The Parliament

Part I - General
Part II - The Senate
Part III - The House of Representatives
Part IV - Both Houses of the Parliament
Part V - Powers of the Government
Chapter II - The Executive Government
Part I - The President
Part II - Executive Power
Part III - Machinery of Government
Part IV - The Constitutional Council
Part V - Miscellaneous
Chapter III - The Judicature
Chapter IV - Finance and Trade
Chapter V - The States
Chapter VI - New States
Chapter VII - Miscellaneous
Chapter VIII - Alteration of the Constitution
Chapter IX - Transitional and Temporary Provisions
The Schedule I - Oath and Affirmation of Allegiance
Schedule II - Oath and Affirmation of Office

Contents


Chapter I - The Parliament

Part I - General

1. The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen President, a Senate, and a House of Representatives, and which is herein-after called "The Parliament," or "The Parliament of the Commonwealth."

Legislative power

2. A Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.
See analogous provisions in s59(1).

Governor-General

3. There shall be payable to the Queen out of the Consolidated Revenue fund of the Commonwealth, for the salary of the Governor-General, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds.

The salary of a Governor-General shall not be altered during his continuance in office.
See analogous provisions in s59(9).

Salary of Governor-General

4. The provisions of this Constitution relating to the Governor-General extend and apply to the Governor-General for the time being, or such person as the Queen may appoint to administer the Government of the Commonwealth; but no such person shall be entitled to receive any salary from the Commonwealth in respect of any other office during his administration of the Government of the Commonwealth.
Moved to s60(5) and amended.

Provisions relating to Governor-General

5. (1) The Governor-General Subject to this Constitution, the President in Council may appoint such times for holding the sessions of the Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, summon the Parliament, or convene a joint sitting of the members of the Senate and of the House of Representatives, and may in like manner prorogue the Parliament, and may in like manner or dissolve the House of Representatives.

But the President may, according to his discretion, from time to time, by Proclamation or otherwise, summon the Parliament, or convene a joint sitting of the members of the Senate and of the House of Representatives.

Sessions of Parliament, prorogation and dissolution

After any general election the President shall summon the Parliament shall be summoned to meet not later than thirty days after the day appointed for the return of the writs.
This is reworded to refer to the President in Council rather than to the President, rendering unambiguous the fact that these powers are exercised in accordance with the advice of the Executive Government. However, the President also retains the power to summon Parliament at his discretion. Note that s28, s57, s64(2) and s64(3) also refer to the power to dissolve the House of Representatives.

Summoning Parliament

(2) If there is no President or no person acting as President, or if the President refuses or otherwise fails to summon the Parliament when advised or otherwise required in accordance with this Constitution, the Parliament shall be deemed to have been summoned at noon one week from the date on which the President had been advised or otherwise required to summon the Parliament.
This will resolve any constitutional deadlock which may occur; for example, if a President is removed from office, it is necessary for the Parliament to be summoned in order for the House of Representatives to vote to ratify the act of removal. However, if the person acting as President during this period fails to do so, the Parliament would in due course be summoned automatically.
Spent provisions deleted.

Parliament summoned automatically

The Parliament shall be summoned to meet not later than six months after the establishment of the Commonwealth.
Spent provisions deleted.

First session

6. There shall be a session of the Parliament once at least in every year, so that twelve months shall not intervene between the last sitting of the Parliament in one session and its first sitting in the next session.

Yearly session of Parliament


Part II - The Senate

7. The Senate shall be composed of senators for each State directly chosen by the people of the State, voting, until unless the Parliament otherwise provides, as one electorate.

But until the Parliament of the Commonwealth otherwise provides, the Parliament of the State of Queensland, if that State be an Original State, may make laws dividing the State into divisions and determining the number of senators to be chosen for each division, and in the absence of such provision the State shall be one electorate.

Until Unless the Parliament otherwise provides there shall be six senators for each Original State. The Parliament may make laws increasing or diminishing the number of senators for each State, but so that equal representation of the several Original States shall be maintained and that no Original State shall have less than six senators.
Using the word "until" here means that this becomes spent upon the Parliament providing otherwise. Changing this to "unless" means that it serves as a "contingency provision" - it ceases to apply upon the Parliament providing otherwise, but may be revived if the Parliament should at any time fail to provide otherwise, whereupon application of the provision would resume. The same reasoning applies to all other provisions where the word "until" has been replaced with the word "unless".

The senators shall be chosen for a term of six years, and the names of the senators chosen for each State shall be certified by the Governor to the Governor-General President.
Spent provisions deleted.

The Senate

8. The qualification of electors of senators shall be in each State that which is prescribed by this Constitution, or by the Parliament, as the qualification for electors of members of the House of Representatives; but in the choosing of senators each elector shall vote only once.

Qualification of electors

9. The Parliament of the Commonwealth may make laws prescribing the method of choosing senators, but so that the method shall be uniform for all the States. Subject to any such law, the Parliament of each State may make laws prescribing the method of choosing the senators for that State.

Method of election of senators

The Parliament of a State may make laws for determining the times and places for elections of senators for the State.

Times and places

10. Until the The Parliament otherwise provides, but subject to this Constitution, the laws in force in each State, for the time being, may make laws relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections of senators for the State.
Spent provisions reworded to provide for the conferral of power to thus legislate.

Laws relating to election of senators

11. The Senate may proceed to the despatch of business, notwithstanding the failure of any State to provide for its representation in the Senate.

Failure to choose senators

12. The Governor of any State may cause writs to be issued for elections of senators for the State. In case of the dissolution of the Senate the writs shall be issued within ten days from the proclamation of such dissolution.

Issue of writs

13. As soon as may be after the Senate first meets, and after each first meeting of the Senate following a dissolution thereof, the Senate shall divide the senators chosen for each State into two classes, as nearly equal in number as practicable; and the places of the senators of the first class shall become vacant at the expiration of three years, and the places of those of the second class at the expiration of six years, from the beginning of their term of service; and afterwards the places of senators shall become vacant at the expiration of six years from the beginning of their term of service.

The election to fill vacant places shall be made within one year before the places are to become vacant.

For the purposes of this section the term of service of a senator shall be taken to begin on the first day of July following the day of his election, except in the cases of the first election and of the election next after any dissolution of the Senate, when it shall be taken to begin on the first day of July preceding the day of his election.
Spent provisions reworded.

Rotation of senators

14. Whenever the number of senators for a State is increased or diminished, the Parliament of the Commonwealth may make such provision for the vacating of the places of senators for the State as it deems necessary to maintain regularity in the rotation.

Further provision for rotation

15. If the place of a senator becomes vacant before the expiration of his term of service, the Houses of Parliament of the State for which he was chosen, sitting and voting together, or, if there is only one House of that Parliament, that House, shall choose a person to hold the place until the expiration of the term. But if the Parliament of the State is not in session when the vacancy is notified, the Governor of the State, with the advice of the Executive Council thereof, may appoint a person to hold the place until the expiration of fourteen days from the beginning of the next session of the Parliament of the State or the expiration of the term, whichever first happens.

Where a vacancy has at any time occurred in the place of a senator chosen by the people of a State and, at the time when he was so chosen, he was publicly recognised by a particular political party as being an endorsed candidate of that party and publicly represented himself to be such a candidate, a person chosen or appointed under this section in consequence of that vacancy, shall, unless there is no member of that party available to be chosen or appointed, be a member of that party.

Where -

    (a) in accordance with the last preceding paragraph, a member of particular political party is chosen or appointed to hold the place of a senator whose place has become vacant; and

    (b) before taking his seat he ceases to be a member of that party (otherwise than by reason of the party having ceased to exist),

he shall be deemed not to have been so chosen or appointed and the vacancy shall be again notified in accordance with section 21 of this Constitution.

The name of any senator chosen or appointed under this section shall be certified by the Governor of the State to the Governor-General President.

If the place of a senator chosen by the people of a State at the election of senators last held before the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977 became vacant before that commencement and, at that commencement, no person chosen by the House or Houses of Parliament of the State, or appointed by the Governor of the State, in consequence of that vacancy, or in consequence of that vacancy and a subsequent vacancy or vacancies, held office, this section applies as if the place of the senator chosen by the people of the State has become vacant after that commencement.

A senator holding office at the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977, being a senator appointed by the Governor of a State in consequence of a vacancy that had at any time occurred in the place of a senator chosen by the people of the State, shall be deemed to have been appointed to hold the place until the expiration of fourteen days after the beginning of the next session of the Parliament of the State that commenced or commences after he was appointed and further action under this section shall be taken as if the vacancy in the place of the senator chosen by the people of the State had occurred after that commencement.

Subject to the next succeeding paragraph, a senator holding office at the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977 who was chosen by the House or Houses of Parliament of a State in consequence of a vacancy that had at any time occurred in the place of a senator chosen by the people of the State shall be deemed to have been chosen to hold office until the expiration of the term of service of the senator elected by the people of the State.

If, at or before the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977, a law to alter the Constitution entitled "Constitution Alteration (Simultaneous Elections) 1977" came into operation, a senator holding office at the commencement of that law who was chosen by the House or Houses of Parliament of a State in consequence of a vacancy that had at any time occurred in the place of a senator chosen by the people of a State shall be deemed to have been chosen to hold office -

    (a)if the senator elected by the people of the State had a term of service expiring on the thirtieth day of June, One thousand nine hundred and seventy-eight - until the expiration or dissolution of the first House of Representatives to expire or be dissolved after that law come into operation; or

    (b)if the senator elected by the people of the State had a term of service expiring on the thirtieth day of June, One thousand nine hundred and eighty-one until the expiration or dissolution of the second House of Representatives to expire or be dissolved after that law came into operation or, if there is an earlier dissolution of the Senate, until that dissolution.


Spent provisions deleted.

Casual vacancies

16. The qualifications of a senator shall be the same as those of a member of the House of Representatives.

Qualifications of senator

17. The Senate shall, before proceeding to the despatch of any other business, choose a senator to be the President of the Senate; and as often as the President of the Senate becomes vacant the Senate shall again choose a senator to be the President of the Senate.

The President of the Senate shall cease to hold his office if he ceases to be a senator. He may be removed from office by a vote of the Senate, or he may resign his office or his seat by writing to the Governor-General President.
Consequential amendment only, intended to differentiate clearly between the President of the Commonwealth of Australia and the President of the Senate.

Election of President of the Senate

18. Before or during any absence of the President of the Senate, the Senate may choose a senator to perform his duties in his absence.

Absence of President of the Senate

19. A senator may, by writing addressed to the President of the Senate, or to the Governor-General President if there is no President of the Senate or if the President of the Senate is absent from the Commonwealth, resign his place, which thereupon shall become vacant.

Resignation of senator

20. The place of a senator shall become vacant if for two consecutive months of any session of the Parliament he, without the permission of the Senate, fails to attend the Senate.

Vacancy by absence

21. Whenever a vacancy happens in the Senate, the President of the Senate, or if there is no President of the Senate or if the President of the Senate is absent from the Commonwealth the Governor-General President shall notify the same to the Governor of the State in the representation of which the vacancy has happened.

Vacancy to be notified

22. Until the Parliament otherwise provides, the presence of at least one-third of the whole number of the senators shall be necessary to constitute a meeting of the Senate for the exercise of its powers.

Quorum

23. Questions arising in the Senate shall be determined by a majority of votes, and each senator shall have one vote. The President of the Senate shall in all cases be entitled to vote; and when the votes are equal the question shall pass in the negative.

Voting in the Senate


Part III - The House of Representatives

24. The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of senators.

The number of members chosen in the several States shall be in proportion to the respective number of their people, and shall, until the Parliament otherwise provides, be determined, wherever necessary, in the following manner:-

    (i) A quota shall be ascertained by dividing the number of the people of the Commonwealth, as shown by the latest statistics of the Commonwealth, by twice the number of senators:

    (ii) The number of members to be chosen in each State shall be determined by dividing the number of the people of the State, as shown by the latest statistics of the Commonwealth, by the quota; and if on such division there is a remainder greater than one-half of the quota, one more member shall be chosen in the State.

But notwithstanding anything in this section, five members at least shall be chosen in each Original State.

Composition of House of Representatives

25. For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.
Outmoded.

Provision as to races disqualified from voting

26. Notwithstanding anything in section 24, the number of members to be chosen in each State at the first election shall be as follows:-
    New South Wales:- twenty-three;
    Victoria:- twenty;
    Queensland:- nine;
    South Australia:- six;
    Tasmania:- five;

Provided that if Western Australia is an Original State, the numbers shall be as follows:-

    New South Wales:- twenty-six;
    Victoria:- twenty-three;
    Queensland:- nine;
    South Australia:- seven;
    Western Australia:- five;
    Tasmania:- five.

Spent.

Representatives in first Parliament

27. Subject to this Constitution, the Parliament may make laws for increasing or diminishing the number of members of the House of Representatives.

Alteration of number of members

28. Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be unless sooner dissolved by the Governor-General President in accordance with this Constitution.
Rather than restate the powers of the President (defined in s5, s57, s64(2) and s64(3)), this simply makes reference to those powers.

Duration of House of Representatives

29. Until the Parliament of the Commonwealth otherwise provides, the Parliament of any State The Parliament of the Commonwealth may make laws for determining the divisions in each State for which members of the House of Representatives may be chosen, and the number of members to be chosen for each division. A division shall not be formed out of parts of different States.

In the absence of other provisions, each State shall be one electorate.
Provisions have been rendered spent by the enactment of the Commonwealth Electoral Act 1902, but have been reworded to provide for the conferral of power to thus legislate.

Electoral divisions

30. The Parliament may make laws relating to Until the Parliament otherwise provides, the qualification of electors of members of the House of Representatives, but in the absence of such provision, the qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the State as the qualification of electors of the more numerous House of Parliament of the State. ; but in
Provisions have been reworded to provide for the conferral of power to thus legislate, but retain "contingency provisions" for State legislation which may be revived in the unlikely case that there should there ever be an absence of such legislation.

In the choosing of members of the House of Representatives each elector shall vote only once.

Qualification of electors

31. Until the The Parliament otherwise provides, but subject to this Constitution, the laws in force in each State for the time being may make laws relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections in the State of members of the House of Representatives.
Spent provisions reworded to provide for the conferral of power to thus legislate.

Method of election of members

32. The Governor-General in Council may President shall cause writs to be issued for general elections of members of the House of Representatives .

After the first general election, the writs shall be issued within ten days from the expiry of a House of Representatives or from the proclamation of a dissolution thereof.
Spent provisions deleted and reworded with no change in meaning or effect.

Writs for general election

33. Whenever a vacancy happens in the House of Representatives, the Speaker shall issue his writ for the election of a new member, or if there is no Speaker or if he is absent from the Commonwealth the Governor-General in Council may President shall issue the writ.
Rather than leaving the power to issue a writ as one to be exercised on the advice of the Executive Government, the President is required (c.f. provisions applying to the Speaker) to issue a writ (this is not a discretionary power). This is consistent with s32, which also requires the President to issue writs.

Writs for vacancies

34. Until the Parliament otherwise provides, the The qualifications of a member of the House of Representatives shall be as follows:-

(i) He must be of the full age of twenty-one eighteen years, and must be an elector entitled to vote at the election of members of the House of Representatives, or a person qualified to become such elector, and must have been for three years at the least a resident within the limits of the Commonwealth as existing at the time when he is chosen:

(ii) He must be a subject of the Queen citizen of the Commonwealth of Australia:, either natural-born or for at least five years naturalised under a law of the United Kingdom, or of a Colony which has become or becomes a State, or of the Commonwealth, or of a State.

(iii) Such other qualifications as the Parliament may prescribe. He must be a subject of the Queen, either natural-born or for at least five years naturalised under a law of the United Kingdom, or of a Colony which has become or becomes a State, or of a Commonwealth.
Though these provisions are spent as the Parliament has already otherwise provided, this has been reworded to provide for the conferral of power to thus legislate whilst enshrining certain key legislated prescriptions which have the effect of reviving and amending the analogous spent provisions; i.e., minimum age of 18 and citizen. Thus, despite the amendments, there is no change in meaning or effect.

Qualifications of members

35. The House of Representatives shall, before proceeding to the dispatch of any other business, choose a member to be the Speaker of the House, and as often as the office of Speaker becomes vacant the House shall again choose a member to be the Speaker.

The Speaker shall cease to hold his office if he ceases to be a member. He may be removed from office by a vote of the House, or he may resign his office or his seat by writing addressed to the Governor-General President.

Election of Speaker

36. Before or during any absence of the Speaker, the House of Representatives may choose a member to perform his duties in his absence.

Absence of Speaker

37. A member may by writing addressed to the Speaker, or to the Governor-General President if there is no Speaker or if the Speaker is absent from the Commonwealth, resign his place, which thereupon shall become vacant.

Resignation of member

38. The place of a member shall become vacant if for two consecutive months of any session of the Parliament he, without the permission of the House, fails to attend the House.

Vacancy by absence

39. Until the Parliament otherwise provides, the presence of at least one-third of the whole number of the members of the House of Representatives shall be necessary to constitute a meeting of the House for the exercise of its powers.

Quorum

40. Questions arising in the House of Representatives shall be determined by a majority of votes other than that of the Speaker. The Speaker shall not vote unless the numbers are equal, and then he shall have a casting vote.

Voting in the House of Representatives


Part IV - Both Houses of the Parliament

41. No adult person of the full age of eighteen years who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.
Whether or not this is spent, or may be revived, is unclear. The reference to "adult" has been changed consistent with the language or s34.

Right of electors of States

42. Every senator and every member of the House of Representatives shall before taking his seat make and subscribe before the Governor-General President or some person authorised by him, an oath or affirmation of allegiance in the form set forth in the schedule Schedule I to this Constitution.
There are now two schedules: the first contains the oath or affirmation of allegiance for M.P.s, the second, for the President.

Oath or affirmation of allegiance

43. A member of either House of the Parliament shall be incapable of being chosen or of sitting as a member of the other House.

Member of one House ineligible for other

44. Any person who -

    (i) Is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power: or

    (ii) Is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer: or

    (iii) Is an undischarged bankrupt or insolvent: or

    (iv) Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: or

    (v) Has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons:

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

But sub-section (iv) does not apply to the office of any of the Queen's Ministers of State for the Commonwealth, or of any of the Queen's Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen's navy or army defence forces of the Commonwealth, or to the receipt of pay as an officer or member of the naval or military defence forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth.
Outmoded provisions reworded.

Disqualification

45. If a senator or member of the House of Representatives -

    (i) Becomes subject to any of the disabilities mentioned in the last preceding section: or

    (ii) Takes the benefit, whether by assignment, composition, or otherwise, of any law relating to bankrupt or insolvent debtors: or

    (iii) Directly or indirectly takes or agrees to take any fee or honorarium for services rendered to the Commonwealth, or for services rendered in the Parliament to any person or State:

his place shall thereupon become vacant.

Vacancy on happening of disqualification

46. Until Unless the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds two hundred dollars to any person who sues for it in any court of competent jurisdiction.
Outmoded provisions reworded. See also comments for s7.

Penalty for sitting when disqualified

47. Until Unless the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises.
See comments for s7.

Disputed elections

48. Until Unless the Parliament otherwise provides, each senator and each member of the House of Representatives shall receive an allowance of four hundred pounds eight hundred dollars a year, to be reckoned from the day on which he takes his seat.
See comments for s7.

Remuneration of members

49. The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.
References to the House of Commons have been moved to Temporary and Transitional Provisions.

Privileges etc. of Houses

50. Each House of the Parliament may make rules and orders with respect to -

    (i) The mode in which its powers, privileges, and immunities may be exercised and upheld:

    (ii) The order and conduct of its business and proceedings either separately or jointly with the other House.

Rules and orders


Part V - Powers of the Parliament

51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to: -

    (i) Trade and commerce with other countries, and among the States:

    (ii) Taxation; but so as not to discriminate between States or parts of States:

    (iii) Bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth:

    (iv) Borrowing money on the public credit of the Commonwealth:

    (v) Postal, telegraphic, telephonic, and other like services:

    (vi) The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth:

    (vii) Lighthouses, lightships, beacons and buoys:

    (viii) Astronomical and meteorological observations:

    (ix) Quarantine:

    (x) Fisheries in Australian waters beyond territorial limits:

    (xi) Census and statistics:

    (xii) Currency, coinage, and legal tender:

    (xiii) Banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money:

    (xiv) Insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned:

    (xv) Weights and measures:

    (xvi) Bills of exchange and promissory notes:

    (xvii) Bankruptcy and insolvency:

    (xviii) Copyrights, patents of inventions and designs, and trade marks:

    (xix) Naturalisation and aliens:

    (xx) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth:

    (xxi) Marriage:

    (xxii) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants:

    (xxiii) Invalid and old-age pensions:

    (xxiiiA) The provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription), benefits to students and family allowances:

    (xxiv) The service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States:

    (xxv) The recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States:

    (xxvi) The people of any race for whom it is deemed necessary to make special laws:

    (xxvii) Immigration and emigration:

    (xxix) The influx of criminals:

    (xxx) The relations of the Commonwealth with the islands of the Pacific:

    (xxxi) The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws:

    (xxxii) The control of railways with respect to transport for the naval and military purposes of the Commonwealth:

    (xxxiii) The acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State:

    (xxxiv) Railway construction and extension in any State with the consent of that State:

    (xxxv) Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State:

    (xxxvi) Matters in respect of which this Constitution makes provision until or unless the Parliament otherwise provides:
    See explanation for s46.

    (xxxvii) Matters referred to the Parliament of the Commonwealth by the Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law:

    (xxxviii) The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all States directly concerned, of any power which can not otherwise be exercised by the Commonwealth, except such powers the exercise of which is inconsistent with or expressly prohibited by at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia:
    All powers that were previously exercised by the Federal Council of Australasia have already been handed over to the Commonwealth. Rather than applying the condition which explicitly limits those powers which the States can authorise the Commonwealth to exercise to those which only the Parliament of the United Kingdom as at 1 January, 1901 could exercise, this enables the States to authorise the Commonwealth to exercise any power whatsoever which cannot otherwise be exercised as a result of the fact that the power is not otherwise conferred upon the Commonwealth by the Constitution, though not prohibited to the Commonwealth.

    This also recognises that besides the Commonwealth and State polities which operate under this Constitution, no other (foreign) polity exercises any sovereignty in Australia unless authorised by Australian polities. It may thus be desirable to remove such colonial or imperial references whilst retaining the original meaning and effect by employing alternative wording.

    (xxxix) Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.

Legislative powers of the Parliament

52. The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order and good government of the Commonwealth with respect to -

    (i) The seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes:

    (ii) Matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth:
    It has been argued that it is unnecessary to have an express Commonwealth power to legislate with respect to its own departments. It is also anomalous in that it purports to give the Commonwealth Parliament exclusive power to legislate in respect of some departments but not others; this anomalous provision is removed, but the (redundant) remainder retained.

    (iii) Other matters declared by this Constitution to be within the exclusive power of the Parliament.

Exclusive powers of the Parliament

52A. The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
This provision has simply been moved from s116, where its location seems anomalous.

Prohibition to legislate in respect of religion

53. Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But a proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its containing provision for the imposition or appropriation of fines or other pecuniary penalties, or for the demand for payment or appropriation of fees for licences, or fees for services under the proposed law.

The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government.

The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people.

The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any of such omissions or amendments, with or without modifications.

Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws.

Powers of the Houses in respect of legislation

54. The proposed law which appropriates revenue or moneys for the ordinary annual services of the Government shall deal only with such appropriation.

Appropriation Bills

55. Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect.

Laws imposing taxation, except laws imposing duties of customs or of excise, shall deal with one subject of taxation only; but laws imposing duties of customs shall deal with duties of customs only, and laws imposing duties of excise shall deal with duties of excise only.

Tax Bill

56. A vote, resolution, or proposed law for the appropriation of revenue or moneys shall not be passed unless the purpose of the appropriation has in the same session been recommended by message of the Governor-General President in Council to the House in which the proposal originated.

Recommendation of money votes

57. If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, and if after an interval of three months the House of Representatives, in the same or the next session, again passes the proposed law with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General President may, according to his discretion, dissolve the Senate and the House of Representatives simultaneously. But such dissolution shall not take place within six months before the date of the expiry of the House of Representatives by effluxion of time.

If after such dissolution the House of Representatives again passes the proposed law, with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General President in Council may convene a joint sitting of the members of the Senate and of the House of Representatives.
This is reworded to refer to the President in Council rather than to the President, rendering unambiguous the fact that these powers are exercised in accordance with the advice of the Executive Government. However, as well as being required to convene a joint sitting when so advised, the President may still also convene a joint sitting at his discretion - see s5.

The members present at the joint sitting may deliberate and shall vote together upon the proposed law as last proposed by the House of Representatives, and upon amendments, if any, which have been made therein by one House and not agreed to by the other, and any such amendments which are affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives shall be taken to have been carried, and if the proposed law, with the amendments, if any, so carried is affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives, it shall be taken to have been duly passed by both Houses of the Parliament, and shall be presented to the Governor-General President for the Queen's assent.

Disagreement between the Houses

58. (1) Subject only to sub-section (2), when a proposed law passed by both Houses of the Parliament is presented to the Governor-General President for the Queen's assent, he shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen's name, or that he withholds assent, or that he reserves the law for the Queen's pleasure assent to it if so advised by the Federal Executive Council.
Spent provisions deleted. This is amended to provide that rather than being a discretionary power, the President may assent to Bills only on the advice of the Executive Government.

Assent to Bills

(2)The Governor-General President may, according to his discretion, return to the House in which it originated any proposed law so presented to him, and may transmit therewith any amendments which he may recommend, and the Houses may deal with the recommendation.

Recommendations by President

59. 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 Houses of the Parliament, or by Proclamation, shall annul the law from the day when the disallowance is made known.
Obsolete provisions deleted.

Disallowance by the Queen

60. A proposed law reserved for the Queen's pleasure shall not have any force unless and until within two years from the day on which it was presented to the Governor-General for the Queen's assent the Governor-General makes known, by speech or message to each of the Houses of the Parliament, or by Proclamation, that it has received the Queen's assent.
Obsolete provisions deleted.

Signification of Queen's pleasure on Bills reserved


Chapter II - The Executive Government

Part I - The President

59. (1) There shall be a President, who shall be the Head of State of the Commonwealth of Australia, and who shall exercise and perform his powers and functions in accordance with this Constitution.
Establishes the title of the Head of State, as per the ConCon communiqué.

The President

(2) The President shall be nominated according to the following procedure:
    (i) Not later than sixty days prior to the expiry of the term of office of an incumbent President, or within ten days following the death, resignation or vote to ratify the removal from office of the President in accordance with this Constitution, or within ten days of the office of President becoming vacant in accordance with this Constitution, the President of the Senate shall declare his intention to convene the Constitutional Council for the purpose of preparing a short-list of candidates for the office of President, and shall without delay inform by message each of the Houses of the Parliament of the same, and no later than five days from the time of such declaration, he shall convene and chair the Constitutional Council, and shall without delay inform by message each of the Houses of the Parliament of the same.
    Establishes the committee to consider nominations for the office of President, as per the ConCon communiqué, which for want of a better name, I have entitled the the "Constitutional Council". Its establishment and composition is dealt with in a separate part of this chapter. The President of the Senate, an elected official accustomed to the responsibility of exercising impartiality, is the convenor and chair of the Constitutional Council.

    But if there is no President of the Senate or no person acting as President of the Senate, or if the President of the Senate refuses or otherwise fails to convene the Constitutional Council, the Constitutional Council shall be deemed to have been convened at noon fifty four days prior to the expiry of the term of office of an incumbent President, or on the eleventh day following the death, resignation or vote to ratify the removal from office of the President in accordance with this Constitution, or on the eleventh day following the office of President becoming vacant in accordance with this Constitution.
    C.f. s5. This will resolve any constitutional deadlock which may occur for whatever reason.

    (ii) The Constitutional Council shall invite and receive nominations from the People for the office of President, and from those persons so nominated, shall choose a number of persons to be entered onto a short-list of candidates for the office of President, and unless the Parliament otherwise provides the number thereof shall be three. The Parliament may make laws increasing or diminishing the number of persons to be entered onto the short-list, but the number thereof shall be no less than three. The name of any person so nominated shall not be disclosed without the consent of that person.
    This establishes a framework for community consultation and evaluation of nominations, as per the ConCon communiqué.

    (iii) Any member of the Constitutional Council may move that any person so nominated be entered onto the short-list of candidates for the office of President, or that a person already on the short-list remain thereon, and in so doing, the Constitutional Council shall be mindful of community diversity. If the Prime Minister and the Leader of the Opposition vote to affirm such motion, the question shall be determined by a majority of votes. But if either the Prime Minister or the Leader of the Opposition vote to negate such motion, the question shall be determined only by the vote of at least three-quarters of the whole number of the members of the Constitutional Council.
    The Constitutional Council is prevailed upon to be mindful of community diversity, as per the ConCon communiqué. These rules of voting encourage, but do not force, the Constitutional Council to consider the acceptability of the candidates to the Prime Minister and the Leader of the Opposition, avoiding later problems which might have occurred when a candidate is nominated by the Prime Minister to the Parliament.

    (iv) When the Constitutional Council has completed the preparation of a short-list of candidates, the Constitutional Council shall deliver a report to the President, to the Prime Minister and to the Leader of the Opposition, which report shall include the said short-list.
    In the interests of bipartisanship, and acknowledging the interest of the sitting President, the Leader of the Opposition and the President should be entitled also to see the short-list. Care has been taken in to ensure bipartisan involvement at all stages of the nomination and selection procedure.

    (v) If after thirty days prior to the expiry of the term of office of an incumbent President, or after forty days following the death, resignation or vote to ratify the removal from office of the President in accordance with this Constitution, or after forty days following the office of President becoming vacant in accordance with this Constitution, the Constitutional Council has not delivered its report to the President, to the Prime Minister and to the Leader of the Opposition, the Constitutional Council shall not be prorogued, nor shall it be adjourned for a period extending beyond five days, until it has delivered its report to the President, to the Prime Minister and to the Leader of the Opposition.
    This is intended to resolve any constitutional deadlock which may occur as a result of the Constitutional Council failing for whatever reason to report.

Convening of Constitutional Council and nomination of candidates for office of President

(3) The President shall be chosen according to the following procedure:
    (i) At least five days, but not later than ten days, after the delivery by the Constitutional Council of its report to the President, to the Prime Minister and to the Leader of the Opposition, the President shall convene a joint sitting of the members of the Senate and of the House of Representatives which shall meet to elect a new President.
    The President is required to convene a joint sitting, with a short period allowed between the delivery of the report to the Prime Minister and the sitting for consideration of the report.

    (ii) The Prime Minister shall choose one candidate from the short-list and shall move before the joint sitting of the members of the Senate and of the House of Representatives that that candidate be elected President, provided that such motion shall be in order only if seconded by the Leader of the Opposition.
    Only one candidate is chosen from the short-list, as per the ConCon communiqué.

    (iii) In electing a new President, the joint sitting of the members of the Senate and of the House of Representatives shall vote together to approve as President the candidate thus nominated by the Prime Minister and seconded by the Leader of the Opposition. A vote by secret ballot shall be conducted, and the options available on the ballot shall be only to approve, to disapprove, or to abstain. If that candidate obtains the approval of at least two-thirds of the whole number of the members of the Senate and of the House of Representatives, that person shall thereupon be deemed to have been elected to the office of President.
    The President is elected by a two-thirds majority of a joint sitting, as per the ConCon communiqué.

    But if the candidate does not thus obtain approval, the Prime Minister may -

      (a) Choose another candidate from the short-list, and the procedure shall in all other respects be repeated in accordance with paragraph (ii); or

      (b) Declare that no other candidates will be chosen, or can be chosen, as the case may be, from the short-list, and the procedure shall in all other respects be repeated in accordance with sub-section (2) paragraph (i).


    In the unlikely case that a candidate fails to obtain a two-thirds majority, the procedure has to be repeated from some previous point. The two most appropriate points are given here.

    (iv) If after fifteen days following the delivery by the Constitutional Council of the report to the President, to the Prime Minister and to the Leader of the Opposition the Parliament has not elected a President, the Parliament shall not be prorogued, nor shall either House be adjourned for a period extending beyond five days, until a President has been elected.
    This is intended to resolve any constitutional deadlock which may occur as a result of the Parliament failing for whatever reason to elect a President.

Procedure for choosing President by vote of Parliament

[(3A) Notwithstanding anything in sub-section (3), the Parliament may provide that the President shall be chosen by a vote of the People in accordance the following procedure:
    (i) At least five days, but not later than ten days, after the delivery by the Constitutional Council of the report to the President, to the Prime Minister and to the Leader of the Opposition, the President shall issue his writ for the election of a new President.
    The President is required to issue a writ.

    (ii) The President shall be directly chosen by the people of the Commonwealth, voting as a single electorate and according to the system of optional preferential voting.

Provided that in the absence of such provision by the Parliament, this sub-section shall be of no effect.]
Enables the Parliament to provide for the popular election of the President if it so desires at any time. The people vote to elect one candidate from those who have been placed on the short-list by the Constitutional Council. It should be recalled here that it is extremely unlikely that any candidate would have been entered onto the short-list without the approval of both the Prime Minister and the Leader of the Opposition, sitting as ex officio members of the Constitutional Council. By accommodating popular election of the President in the Constitution, but leaving its implementation to Parliament, this particular model could be more acceptable to many people who either oppose election of the President by the Parliament and/or prefer a popular election model.
Another formulation to use here could additionally provide for a run-off election if no one candidate obtains a majority of primary votes. In this case, the top two candidates remaining after distribution of preferences would become the two candidates in a run-off election to be held, say, two weeks later. The value of this procedure would be to confer additional legitimacy on a President who otherwise might not have been seen to have obtained the approval of the majority of electors.

[Procedure for choosing President by vote of People]

(4) Subject to this Constitution, the Parliament may make laws with respect to the conduct of the nomination and of the election of the President, including the resolution of disputes in regard thereto. But any question respecting the qualification of the President, or respecting a vacancy in the office of President, and any question of a disputed election to the office of President, shall be determined by the High Court, sitting as the Court of Disputed Returns.
This enables the Parliament to legislate to determine the details of the nomination and election procedures, including community consultation and evaluation of nominations, as per the ConCon communiqué. C.f. s47.

Laws relating to election of President

(5) If, when a person is elected to the office of President, the office is vacant, the person so elected shall enter upon the office of President immediately, but if the term of the incumbent President has not yet expired, the person so elected shall enter upon the office of President upon the expiry of the term of the incumbent President.
This provides for commencement in office, as per the ConCon communiqué, and ensures that there is no constitutional hiatus, or that the hiatus is minimised.

Commencement in office of President

(6) The President shall not exercise a power or function of the President on any occasion unless he has on that occasion or has previously made and subscribed before a joint sitting of the members of the Senate and of the House of Representatives an oath or affirmation of allegiance in the form set forth in Schedule I to this Constitution and an oath or affirmation for the office of President in the form set forth in Schedule II to this Constitution, and such oaths or affirmations shall be administered by the Chief Justice of the High Court, or another Justice of the High Court, or such officer as the Parliament may prescribe for the purpose.
There are now two schedules: the first contains the oath or affirmation of allegiance for M.P.s, the second, for the President, as per the ConCon communiqué. C.f. s42. Also provides for commencement in office, as per the ConCon communiqué.

President to make oath or affirmation of allegiance and oath or affirmation of office

(7) The President shall hold office until the expiration of five years from the date on which he enters upon that office, unless before the expiration of that period he dies, resigns or is removed from office in accordance with this Constitution.
The term of office is as per the ConCon communiqué.

Term of office of President

(8) Unless a President is removed from office in accordance with this Constitution, notwithstanding the expiration of his term, the President shall continue to hold office until his successor enters upon the office, provided that such period shall not exceed ninety days after the expiry of his term.
This guards against a constitutional hiatus in the event that a new President is, for whatever reason, delayed in entering upon the office.

Continuance in office of President

(9) The qualifications of the President shall be the same as those of a member of the House of Representatives from time to time, except that a person who is a member of either House of the Parliament, or who is a member of a political party, shall be incapable of being elected to the office of President or of holding the office of President.
The qualifications of the office of President are the same as those for members of the House of Representatives, which include the requirement to be eligible to vote in an election for the House of Representatives and to be an Australian citizen. In addition, neither an M.P. or a member of a political party may be elected to the office of President or hold the office of President, though this does not prevent such a person from being nominated to the office. As per the ConCon communiqué. C.f. s16.

Qualifications of President

(10) The President shall receive such remuneration as the Parliament may fix, but such remuneration shall not be diminished during his continuance in office. The President shall not be entitled to receive any remuneration from the Commonwealth in respect of any other office.
Provides for salary and pension, as per the ConCon communiqué. Note that this provides that the remuneration shall not be diminished, whereas provisions which apply to the Governor-General provide that it shall not be altered.

Remuneration of President

59A. (1) The Parliament may provide that there shall be a Vice President, but in the absence of such provision, there shall be no Vice President.
Enables the Parliament to provide for a Vice President who can act as an acting Head of State, as per the ConCon communiqué. Other provisions also provide for an acting Head of State, whether or not the Parliament decides to provide for a Vice President.

The Vice President

(2) The Vice President shall be chosen in like manner as is the President, and the procedure for nomination and election of a Vice President shall, as nearly as practicable, be conducted at the same time and in like manner as that for the President, except that a separate vote shall be conducted for the election of the Vice President, and the Vice President shall enter upon his office at the same time as the President.

Procedure for choosing Vice-President

(3) The Vice President shall not exercise a power or function of the President on any occasion unless he has on that occasion or has previously made and subscribed before a joint sitting of the members of the Senate and of the House of Representatives an oath or affirmation of allegiance in the form set forth in Schedule I to this Constitution and an oath or affirmation for the office of Vice President in the form set forth in Schedule II to this Constitution, and such oaths or affirmations shall be administered by the Chief Justice of the High Court, or another Justice of the High Court, or such officer as the Parliament may prescribe for the purpose.

Vice President to make oath or affirmation of allegiance and oath or affirmation of office

60. (1) If the President is absent from the Commonwealth, or if no President has been chosen, or in the event of the death, physical or mental incapacity, resignation or removal from office of the President, a person appearing on the following list, set out in order of precedence, shall thereupon act as President, but any person appearing on the said list shall be disregarded if there is no such person, or if such person is absent from the Commonwealth, or is unable to perform the functions of the office by reason of physical or mental incapacity, or in the event of the death of the person, or of the resignation or removal of the person from the said office or from the office of President.

The list of persons is as follows -

    (i) The Vice President:
    (ii) Such officers in such order of precedence as the Parliament may prescribe for the purpose:
    (iii) The President of the Senate:
    (iv) The Speaker of the House of Representatives:
    (v) Such person as the President may designate, if he sees fit to so designate:
    (vi) Such person as the Constitutional Council may designate.

Provides for various mechanisms which provide for an acting Head of State, as per the ConCon communiqué. This may or may not include a Vice President - the Parliament may wish instead to designate other persons ex officioto be Acting President, such as the most senior State Governor. In any case, the list continues only to prevent a possible (though unlikely) constitutional vacuum. Note that the comencement of the Acting President in office is triggered upon the removal from office of the President, whereas in s59(2)(i) and s59(2)(v), those provisions are triggered upon the ratification of the removal from office of the President.

Commencement in office of Acting President

(2) Whenever a person acts as President, the powers and functions of the President shall vest in any such person so appointed from time to time.

Powers and functions of President to vest in Acting President

(3) A person acting as President shall cease to act as President upon declaration of the same by the President, or when a successor to the President has entered upon the office, or when the incapacity or absence from the Commonwealth of the President has ceased, or upon removal from office in like manner as is the President, as the case may be, except that no such person shall act as President for more than ninety days.

Termination in office of Acting President

(4) A person acting as President shall not exercise a power or function of the President on any occasion unless he has on that occasion or has previously made and subscribed, in the presence of the President, the Chief Justice or another Justice of the High Court, or such officer as the Parliament may prescribe for the purpose, an oath or affirmation of allegiance in the form set forth in Schedule I to this Constitution and an oath or affirmation for the office of Acting President in the form set forth in Schedule II to this Constitution.

Powers and functions not to be exercised without oath or affirmation of allegiance and oath or affirmation of office.

(5) The provisions of this Constitution relating to the Governor-General President extend and apply to the Governor-General President for the time being, or such person as the Queen may appoint to administer the Government of the Commonwealth may act as President; but no such person shall be entitled to receive any salary remuneration from the Commonwealth in respect of any other office during his administration of the Government of the Commonwealth such time as he acts as President.
Moved from s4 and amended.

Provisions to extend to Acting President

60A. (1)The President may resign his office by writing addressed to the President of the Senate.

But if the President of the Senate is absent from the Commonwealth, or if no person has been chosen as President of the Senate, the President may resign his office by writing addressed to the Speaker of the House of Representatives, or to such officers as the Parliament may prescribe for the purpose. Such resignation shall take effect at the time specified therein.
Provides for voluntary resignation, as per the ConCon communiqué.

Resignation of President

(2) The office of President shall immediately become vacant if the Prime Minister issues a declaration to that effect by notice in writing addressed to the President, specifying that the President is unfit to hold office, or has brought the office into disrepute, or is unable to perform the functions of the office by reason of physical or mental incapacity, or such other reason as the Prime Minister may see fit to specify.

Not later than thirty days after the declaration, the House of Representatives shall deliberate and shall vote to ratify the declaration, which if affirmed by an absolute majority of the total number of the members of the House of Representatives shall be taken to have been ratified; otherwise, the declaration shall not be taken to have been ratified.

If the vote to ratify the declaration is not carried, the person having just been removed from the office of President shall not thereby be restored to the office of President, but the Prime Minister shall thereby be deemed to have lost the confidence of the House of Representatives, and the person having just been removed from the office of President shall be deemed to be included on the short-list of candidates for the office of President next prepared by the Constitutional Council.
Removal from office of the President, as per the ConCon communiqué.

Removal from office of President


Part II - Executive Power

61. (1) The executive power of the Commonwealth, including the powers, functions, rights, privileges, immunities and prerogatives of the Crown, is vested in the Queen President and is exercisable by the Governor-General as the Queen's representative President subject to such limitations as may be imposed by this Constitution and to such regulations as the Parliament prescribes.
The limitations are spelt out in following sub-sections of this section. Provides also for the continuation of prerogative powers, privileges and immunities unless otherwise provided, as per the ConCon communiqué.

Executive power

(2) The provisions of this Constitution referring to the Governor-General in Council President in Council shall be construed as referring to the President acting in accordance with the advice of the Federal Executive Council.
Moved from s63 and amended. This provision, retaining the status quo, limits the discretionary exercise of power by the President.

Provisions referring to President in Council

(3) Except in cases where the President is required by this Constitution to exercise a particular power or function, the provisions of this Constitution referring to the President (but not those provisions of this Constitution referring to the President in Council) shall be construed as permitting the President to act according to his discretion without, or contrary to, the advice of the Federal Executive Council, or of the Prime Minister, or of any other Minister of State, or of any person acting with the authority of any of those officers, or of any other person exercising executive power; but in so acting, the President shall have due regard to established conventions.
This provides for the retention of the reserve (discretionary) powers of the President, and enjoins the President to have due regard to the conventions of the office, as per the ConCon communiqué. Note that the expression "due regard" is also used in s102.

When, in accordance with this Constitution, the President exercises any power or function according to his discretion, the exercise thereof shall not be justiciable.
The discretion of the President in exercising a reserve power cannot be reviewed by a court.

Provisions referring to President acting according to his discretion

(4) The provisions of this Act Constitution and of any law referring to the Queen Crown as an individual personage shall extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom. be construed as referring to the President, but references to the Crown as a collective entity shall be construed as referring to those organs of civil rule and government in the Commonwealth which exercise powers or functions under this Constitution, including such organs of civil rule and government as may be constituted according to law from time to time.
Moved from Covering Clause 2 and amended to include a definition of the current usage of the term Crown as it refers to the state ("state" in the sense of the system of civil rule and government, not in the sense of the second tier of government; e.g., as in Crown land, Crown lease).
Both of the terms "Crown" and "State" are ambiguous. "Crown", in the first instance, referring to an individual personage, means "Head of State". In the second instance, it means the organs of civil rule and government. "State", in the first instance, means the second tier of government in the federation (e.g. as in "the State of New South Wales"). In the second instance, it means the organs of civil rule and government (e.g. as in "Head of State", "Minister of State" or "separation of Church and State") - the same as the second meaning of "Crown". As long as these ambiguities exist, there will be some lexicographical untidiness, and, as some might argue, inappropriate use of the term "Crown" in a republican context. It would be lexicographically tidier if the term "Crown" (2nd meaning) were replaced by the term "State" (2nd meaning), and the term "State" (1st meaning) with a term such as "Province". Thus, for example, "office of profit under the Crown" would become "office of profit under the State", and "shall be in the State of New South Wales" would become "shall be in the Province of New South Wales". References to the Crown as an individual personage would no longer be ambiguous, and could thus either be retained as such or replaced with references to the President. However, references to the "Crown" in law are ubiquitous, and retention of the current terminologies is convenient if nothing more.

Provisions referring to Crown

(5) Nothing in this section shall prevent the Parliament from conferring powers or functions not inconsistent with this Constitution on the President or on persons or authorities other than the President, except that unless otherwise provided, any powers of functions so conferred on the President shall be exercisable by the President acting in accordance with the advice of the Federal Executive Council.

Executive powers conferred on President or on other persons

(6) The Queen President may in accordance with the advice of the Prime Minister authorise the Governor-General to appoint any person, or any persons jointly or severally, to be his deputy or deputies within any part of the Commonwealth, and in that capacity to exercise during the his pleasure of the Governor-General such powers and functions of the Governor-General President as he thinks fit to assign to such deputy or deputies subject to any limitations expressed or directions given by the Queen Prime Minister; but the appointment of such deputy or deputies shall not affect the exercise by the Governor-General President himself of any power or function.
Moved from s126 and amended. Retaining the status quo, this provides a mechanism by which the executive power of the President can be exercised by others as deputies.

Power of President to appoint deputies

(7) A person who is appointed a deputy of the President shall not exercise a power or function of the President assigned to him on any occasion -

    (i) Except in accordance with the instrument of appointment:

    (ii) Except at the request of the President in Council that he exercise that power or function on that occasion:

    (iii) Unless he has on that occasion or has previously made and subscribed, in the presence of the President, the Chief Justice or another Justice of the High Court, or such officer as the Parliament may prescribe for the purpose, an oath or affirmation of allegiance in the form set forth in Schedule I to this Constitution and an oath or affirmation for the office of Deputy of the President in the form set forth in Schedule II to this Constitution.


Derived from the Letters Patent relating to the Office of Governor-General.

Limitations imposed on deputies


Part III - Machinery of Government

62. There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as executive councillors, and shall hold office during his pleasure.

Federal Executive Council

(1) A Prime Minister shall be the chief Minister of State for the Commonwealth.

The Prime Minister

(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 President shall appoint as Prime Minister that person whom he believes would be most likely to command the confidence of the House of Representatives.

But if the House of Representatives declares that another person commands the confidence of the House of Representatives, the President shall appoint that person to be Prime Minister.

Prime Minister to command confidence of House of Representatives.

(3) The Prime Minister shall hold office, subject to this Constitution, until he dies, resigns, or is removed from office by the President in accordance with this Constitution.

Term of office of Prime Minister

(4) Upon the death of the Prime Minister, the President shall appoint the Deputy Prime Minister to be the Prime Minister, or of there is no Deputy Prime Minister, he shall appoint the Minister of State who is most senior in rank to be Prime Minister.

The Deputy Prime Minister

(5) The person who leads the party or coalition of parties which, apart from the party or coalition of parties of which the Prime Minister is a member, occupies the greatest number of seats in the House of Representatives, shall be known as the Leader of the Opposition.

The Leader of the Opposition

63. The provisions of this Constitution referring to the Governor-General in Council shall be construed as referring to the Governor-General acting with the advice of the Federal Executive Council.
Moved to s61(2) and amended.

Provisions referring to Governor-General

(1) In accordance with the advice of the Prime Minister, the President shall appoint and remove from office Ministers of State, and shall designate the rank of such Ministers of State, and may appoint such Ministers of State to administer such departments of State of the Commonwealth as the President in Council may establish.
Derived from s64.

Ministers of State

(2) Until the Parliament otherwise provides, the The Ministers of State shall not exceed seven in number, and shall hold such offices as the Parliament prescribes, or, in the absence of provision, as the Governor-General President in Council directs.
Moved from s65 and amended.

Offices held by Ministers

(3) After the first general election no No Minister of State shall hold office for a longer period than three months ninety days unless he is or becomes a senator or a member of the House of Representatives.
Moved from paragraph 3 of s64 and amended.

Ministers to sit in Parliament

(4) Until Unless the Parliament otherwise provides, the Ministers of State shall not exceed seven in number, and shall hold such offices as the Parliament prescribes, or, in the absence of provision, as the Governor-General directs.
Moved from s65 and amended. See also comments for s7.

Number of Ministers of State

64. The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish.

Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State for the Commonwealth.

After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.
Spent provisions deleted and remainder moved to s63 and amended.

Ministers of State

(1) The President may, according to his discretion, 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 or the Federal Executive Council has advised and secured a dissolution of the House of Representatives.

Removal from office of Prime Minister

(2) The President may, according to his discretion, refuse to dissolve the House of Representatives on the advice of the Federal Executive Council when a Prime Minister has lost the confidence of the House of Representatives or has not yet obtained it.

Refusal to dissolve House of Representatives

(3) If the President 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 President may, according to his discretion, dissolve the House of Representatives or dissolve the House of Representatives and dismiss the Prime Minister. In the event of the Prime Minister being so dismissed, the President may, according to his discretion, appoint as Prime Minister such other person who the President 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.
Spells out conventions, as per the ConCon communiqué.

Executive Government behaving unlawfully

65. Until the Parliament otherwise provides, the Ministers of State shall not exceed seven in number, and shall hold such offices as the Parliament prescribes, or, in the absence of provision, as the Governor-General directs.
Moved to s63 and amended.

Number of Ministers

(1) There shall be a Federal Executive Council to advise the Governor-General President in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as executive councillors, and shall hold office during his pleasure the Ministers of State for the time being, who shall each make the oath or affirmation prescribed by the Parliament.
Moved from s62 and amended.

Federal Executive Council

(2) The President shall, in accordance with the advice of the Prime Minister, from time to time, by Proclamation or otherwise, convene meetings of the Federal Executive Council.

But the President may, according to his discretion, from time to time, by Proclamation or otherwise, convene meetings of the Federal Executive Council.
Modelled on s5(1).

President to convene Federal Executive Council

(3) The Prime Minister and the Federal Executive Council shall keep the President fully informed concerning the general conduct of the government and shall furnish the President with such information as he may request.
Spells out a convention, as per the ConCon communiqué.

President to be kept informed

(4) The President shall at any time be entitled to encourage and to warn the Executive Goverment.
Spells out a convention, as per the ConCon communiqué.

President may encourage or warn

66. There shall be payable to the Queen, out of the Consolidated Revenue Fund of the Commonwealth, for the salaries remuneration of the Prime Minister and of the Ministers of State, an such annual sum as is fixed by the Parliament. which, until the Parliament otherwise provides, shall not exceed twelve thousand pounds a year.
Though provisions relating to the amount of the remuneration are spent as the Parliament has already otherwise provided, this has been reworded to provide for the conferral of power.

Remuneration of Ministers

67. Until Unless the Parliament otherwise provides, the appointment and removal of all other officers of the Executive Government of the Commonwealth shall be vested in the Governor-General President in Council, unless the appointment is delegated by the Governor-General President in Council or by a law of the Commonwealth to some other authority.

Appointment of public servants


Part IV - The Constitutional Council


This Part is modelled on provisions establishing the Inter-State Commission.

67A. (1) There shall be a Constitutional Council, with such powers of adjudication and administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of those provisions of this Constitution which vest functions and powers in the Constitutional Council, and of all laws made under those provisions.
The Constitutional Council is the Committee which prepares a short-list of candidates for the office of President, as per the ConCon communiqué. See s59(2).

The Constitutional Council

(2) The members of the Constitutional Council shall be -

    (i) Ex officio non-voting members, comprising the President, the Vice-President, and all former Presidents and Vice-Presidents (but not including any former President or Vice President who has been removed from office):

    (ii) Ex officio voting members, comprising -

      (a) the President of the Senate:

      (b) the Speaker of the House of Representatives:

      (c) the Prime Minister:

      (d) two members of Parliament, nominated by the Prime Minister, belonging to the party or coalition of parties of the Prime Minister:

      (e) the Leader of the Opposition:

      (f) two members of Parliament, nominated by the Leader of the Opposition, belonging to the party or coalition of parties of the Leader of the Opposition:

      (g) the leaders (or their designated substitutes) 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:

    (iii) Twenty community members, who shall have a vote.


The composition of the Constitutional Council is a balance of Parliamentary and community membership, as per the ConCon communiqué.

Composition of Constitutional Council

(3) The President of the Senate shall chair and convene the Constitutional Council.

President of the Senate to chair Constitutional Council

(4) Subject to this Constitution, the presence of at least two-thirds of the whole number of voting members shall be necessary to constitute a meeting of the Constitutional Council for the exercise of its powers.

Quorum

(5) Subject to this Constitution, questions arising in the Constitutional Council shall be determined by a majority of votes, and each voting member shall have one vote; and when the votes are equal the question shall pass in the negative.

Voting in Constitutional Council

(6) The qualifications of a community member of the Constitutional Council shall be the same as those of an elector of members of the House of Representatives. A member of either House of the Parliament shall be incapable of being chosen or of holding office as a community member.

Qualifications of community members

(7) The community members of the Constitutional Council -

    (i) Shall be appointed in such manner as may be prescribed by the Parliament, but in the absence of such provision, shall be elected by a vote of the Senate by secret ballot to fill all such offices, and the method of voting shall be proportional representation by means of the single transferable vote; and in the appointment thereof, consideration shall be given, as far as practicable, to the federal nature of the Commonwealth, to balanced representation of genders, to representation of a range of ages and to representation of the cultural diversity of the Commonwealth:

    (ii) Shall hold office at the pleasure of the Parliament:

    (iii) Shall receive such remuneration as the Parliament may fix; but such remuneration shall not be diminished during their continuance in office.


Provides a method of appointment of community members in the absence of any alternative method prescribed by the Parliament. Election by proportional representation ensures that it would be impossible to stack the Constitutional Council with community members sympathetic to one party.

Community members' appointment, tenure and remuneration


Part V - Miscellaneous

68. The Commander in Chief command in chief of the naval and military defence forces of the Commonwealth is vested in the Governor-General as the Queen's representative shall be the President, but any power or function vested in the President as Commander in Chief shall be exercised or performed only by the President in Council.
The Command in Chief is set down as a non-reserve power.

Command of military forces

69. On a date or dates to be proclaimed by the Governor-General after the establishment of the Commonwealth the following departments of the public service in each State shall become transferred to the Commonwealth:-

    Posts, telegraphs, and telephones:

    Naval and military defence:

    Lighthouses, lightships, beacons, and buoys:

    Quarantine.

But the departments of customs and of excise in each State shall become transferred to the Commonwealth on its establishment.

Spent.

Transfer of certain departments

69. The President in Council shall, subject to such regulations as the Parliament prescribes, have power to -

    (i) Declare war on foreign powers:

    (ii) Appoint ambassadors, consuls and other diplomatic representatives:

    (iii) Grant reprieves and pardons:

    (iv) Confer honours and titles, provided that no such honour or title shall be hereditary.


Specifies some non-reserve powers of the President.

Certain powers of the President in Council

70. In respect of matters which, under this Constitution, pass to the Executive Government of the Commonwealth, all powers and functions which at the establishment of the Commonwealth are vested in the Governor of a Colony, or in the Governor of a Colony with the advice of his Executive Council, or in any authority of a Colony, shall vest in the Governor-General, or in the Governor-General in Council, or in the authority exercising similar powers under the Commonwealth, as the case requires.
Moved to Transitional and Temporary Provisions.

Certain powers of Governors to vest in Governor-General


Chapter III - The Judicature

71. The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two six, as the Parliament prescribes.
Provision for two extra Justices is outmoded; retaining the status quo, this is updated to six.

Judicial power and Courts

72. The Justices of the High Court and of the other courts created by the Parliament -

    (i) Shall be appointed by the Governor-General President in Council:

    [Alternative to (i): Shall be appointed by the Governor-General President in accordance with the advice of the Constitutional Council:]
    This suggested alternative extends the principle of bipartisan appointment of the President to bipartisan appointment (rather than partisan appointment) of Justices of the High Court.

    (ii) Shall not be removed except by the Governor-General President in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity:

    [Alternative to (i): Shall not be removed except by the Governor-General in Council President, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity:]
    As for the alternative to (i), this moves the power to remove a Justice from office one step back from partisan politicians.

    (iii) Shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office.

The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years, and a person shall not be appointed as a Justice of the High Court if he has attained that age.

The appointment of a Justice of a court created by the Parliament shall be for a term expiring upon his attaining the age that is, at the time of his appointment, the age for Justices of that court and a person shall not be appointed as a Justice of such a court if he has attained the age that is for the time being the maximum age for Justices of that court.

Subject to this section, the maximum age for Justices of any court created by the Parliament is seventy years.

The Parliament may make a law fixing an age that is less than seventy years as the maximum age for Justices of a court created by the Parliament and may at any time repeal or amend such a law, but any such repeal or amendment does not affect the term of office of a Justice under an appointment made before the repeal or amendment.

A Justice of the High Court or of a court created by the Parliament may resign his office by writing under his hand delivered to the Governor-General President.

Nothing in the provisions added to this section by the Constitution Alteration (Retirement of Judges) 1977 affects the continuance of a person in office as a Justice of a court under an appointment made before the commencement of those provisions.
Moved to Transitional and Temporary Provisions.

A reference in this section to the appointment of a Justice of the High Court or of a court created by the Parliament shall be read as including a reference to the appointment of a person who holds office as a Justice of the High Court or of a court created by the Parliament to another office of Justice of the same court having a different status or designation.

Judges' appointment, tenure and remuneration

73. The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders and sentences-

    (i) Of any Justice or Justices exercising the original jurisdiction of the High Court:

    (ii) Of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council:
    If this amendment, which removes references to the Privy Council, should broaden the scope of appeals which the High Court has the jurisdiction to hear, it may be narrowed by regulations prescribed by Parliament.

    (iii) Of the Inter-State Commission, but as to questions of law only:

and the judgment of the High Court in all such cases shall be final and conclusive.

But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council.
If this amendment, which removes references to the Privy Council, should broaden the scope of appeals which the High Court cannot be prevented from hearing, it is nevertheless entitled by dint of its own authority to refuse to hear cases.

Until the Parliament otherwise provides, the conditions of any restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court.
Spent.

Appellate jurisdiction of High Court

74. No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State of States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council.

The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave.

Except as provided in this section, the Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty's pleasure.
Obsolete/spent.

Appeal to the Queen in Council

75. In all matters-

    (i) Arising under any treaty:

    (ii) Affecting ambassadors, consuls or other representatives of other countries:

    (iii) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party:

    (iv) Between States, or between residents of different States, or between a State and a resident of another State:

    (v) In which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth:

the High Court shall have original jurisdiction.
Amended consequentially to include a reference to ambassadors.

Original jurisdiction of High Court

76. The Parliament may make laws conferring original jurisdiction on the High Court in any matter-

    (i) Arising under this Constitution, or involving its interpretation, except that in any interpretation thereof, the Preamble shall be of no legal effect:

    (ii) Arising under any laws made by the Parliament:

    (iii) Of Admiralty and maritime jurisdiction:

    (iv) Relating to the same subject-matter claimed under the laws of difference States.


As per the ConCon communiqué, which required that this Chapter of the Constitution should state that the Preamble not be used to interpret the other provisions of the Constitution.

Additional original jurisdiction

77. With respect to any of the matters mentioned in the last two sections the Parliament may make laws-

    (i) Defining the jurisdiction of any federal court other than the High Court:

    (ii) Defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States:

    (iii) Investing any court of a State with federal jurisdiction.

Power to define jurisdiction

78. The Parliament may make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power.

Proceedings against Commonwealth or State

79. The federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes.

Number of judges

80. The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

Trial by jury


Chapter IV - Finance And Trade

81. All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution.

Consolidated Revenue Fund

82. The costs, charges, and expenses incident to the collection, management, and receipt of the Consolidated Revenue Fund shall form the first charge thereon; and the revenue of the Commonwealth shall in the first instance be applied to the payment of the expenditure of the Commonwealth.

Expenditure charged thereon

83. No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law.

But until the expiration of one month after the first meeting of the Parliament the Governor-General in Council may draw from the Treasury and expend such moneys as may be necessary for the maintenance of any department transferred to the Commonwealth and for the holding of the first elections for the Parliament.
Spent.

Money to be appropriated by law

84. When any department of the public service of a State becomes transferred to the Commonwealth, all officers of the department shall become subject to the control of the Executive Government of the Commonwealth.

Any such officer who is not retained in the service of the Commonwealth shall, unless he is appointed to some other office of equal emolument in the public service of the State, be entitled to receive from the state any pension, gratuity, or other compensation, payable under the law of the State on the abolition of his office.

Any such officer who is retained in the service of the Commonwealth shall preserve all his existing and accruing rights, and shall be entitled to retire from office at the time, and on the pension or retiring allowance, which would be permitted by the law of the State if his service with the Commonwealth were a continuation of his service with the State. Such pension or retiring allowance shall be paid to him by the Commonwealth; but the State shall pay to the Commonwealth a part thereof, to be calculated on the proportion which his term of service with the State bears to his whole term of service, and for the purpose of the calculation his salary shall be taken to be that paid to him by the State at the time of the transfer.

Any officer who is, at the establishment of the Commonwealth, in the public service of a State, and who is, by consent of the Governor of the State with the advice of the Executive Council thereof, transferred to the public service of the Commonwealth, shall have the same rights as if he had been an officer of a department transferred to the Commonwealth and were retained in the service of the Commonwealth.
Spent.

Transfer of officers

85. When any department of the public service of a State is transferred to the Commonwealth-

    (i) All property of the State of any kind, used exclusively in connexion with the department, shall become vested in the Commonwealth; but, in the case of the departments controlling customs and excise and bounties, for such time only as the Governor-General in Council may declare to be necessary:

    (ii) The Commonwealth may acquire any property of the State, of any kind used, but not exclusively used in connexion with the department; the value thereof shall, if no agreement can be made, be ascertained in, as nearly as may be, the manner in which the value of land, or of an interest in land, taken by the State for public purposes is ascertained under the law of the State in force at the establishment of the Commonwealth that time:

    (iii) The Commonwealth shall compensate the State for the value of any property passing to the Commonwealth under this section; if no agreement can be made as to the mode of compensation, it shall be determined under laws to be made by the Parliament:

    (iv) The Commonwealth shall, at the date of the transfer, assume the current obligations of the State in respect of the department transferred.


Spent provisions deleted and reworded.

Transfer of property of State

86. On the establishment of the Commonwealth, the collection and control of duties of customs and of excise, and the control of the payment of bounties, shall pass to the Executive Government of the Commonwealth.
Spent.

87. During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, of the net revenue of the Commonwealth from duties of customs and of excise not more than one-fourth shall be applied annually by the Commonwealth towards its expenditure.

The balance shall, in accordance with this Constitution, be paid to the several States, or applied towards the payment of interest on debts of the several States taken over by the Commonwealth.
Spent.

88. Uniform duties Duties of customs shall be uniform throughout the Commonwealth. imposed within two years after the establishment of the Commonwealth.
Spent provisions reworded to provide for the conferral of power to thus legislate.

Uniform duties of customs

89. Until the imposition of uniform duties of customs-

    (i) The Commonwealth shall credit to each State the revenues collected therein by the Commonwealth.

    (ii) The Commonwealth shall debit to each State-

      (a) The expenditure therein of the Commonwealth incurred solely for the maintenance or continuance, as at the time of transfer, of any department transferred from the State to the Commonwealth;

      (b) The proportion of the State, according to the number of its people, in the other expenditure of the Commonwealth.

    (iii) The Commonwealth shall pay to each State month by month the balance (if any) in favour of the State.


Spent.

Payment to States before uniform duties

90. On the imposition of uniform duties of customs the The power of the Parliament to impose duties of customs and of excise, and to grant bounties on the production or export of goods, shall become is exclusive.
Spent provisions reworded to provide for the conferral of power to thus legislate.

On the imposition of uniform duties of customs all laws of the several States imposing duties of customs or of excise, or offering bounties on the production or export of goods, shall cease to have effect, but any grant of or agreement for any such bounty lawfully made by or under the authority of the Government of any State shall be taken to be good if made before the thirtieth day of June, one thousand eight hundred and ninety-eight, and not otherwise.
Spent.

Exclusive power over customs, excise, and bounties

91. Nothing in this Constitution prohibits a State from granting any aid to or bounty on mining for gold, silver, or other metals, nor from granting, with the consent of both Houses of the Parliament of the Commonwealth expressed by resolution, any aid to or bounty on the production or export of goods.

Exceptions as to bounties

92. On the imposition of uniform duties of customs, trade Trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

But notwithstanding anything in this Constitution, goods imported before the imposition of uniform duties of customs into any State, or into any Colony which, whilst the goods remain therein, becomes a State, shall, on thence passing into another State within two years after the imposition of such duties, be liable to any duty chargeable on the importation of such goods into the Commonwealth, less any duty paid in respect of the goods on their importation.
Spent provisions deleted.

Trade within the Commonwealth to be free

93. During the first five years after the imposition of uniform duties of customs, and thereafter until the Parliament otherwise provides-

    (i) The duties of customs chargeable on goods imported into a State and afterwards passing into another State for consumption, and the duties of excise paid on goods produced or manufactured in a State and afterwards passing into another State for consumption, shall be taken to have been collected not in the former but in the latter State:

    (ii) Subject to the last sub-section, the Commonwealth shall credit revenue, debit expenditure, and pay balances to the several States as prescribed for the period preceding the imposition of uniform duties of customs.


Spent.

Payment to States for five years after uniform tariffs

94. After five years from the imposition of uniform duties of customs, the The Parliament may provide, on such basis as it deems fair, for the monthly payment to the several States of all surplus revenue of the Commonwealth.
Spent provisions reworded to provide for the conferral of power to thus legislate.

Distribution of surplus

95. Notwithstanding anything in this Constitution, the Parliament of the State of Western Australia, if that State be an Original State, may, during the first five years after the imposition of uniform duties of customs, impose duties of customs on goods passing into that State and not originally imported from beyond the limits of the Commonwealth; and such duties shall be collected by the Commonwealth.

But any duty so imposed on any goods shall not exceed during the first of such years the duty chargeable on the goods under the law of Western Australia in force at the imposition of uniform duties, and shall not exceed during the second, third, fourth, and fifth of such years respectively, four-fifths, three-fifths, two-fifths, and one-fifth of such latter duty, and all duties imposed under this section shall cease at the expiration of the fifth after the imposition of uniform duties.

If at any time during the five years the duty on any goods under this section is higher than the duty imposed by the Commonwealth on the importation of the like goods, then such higher duty shall be collected on the goods when imported into Western Australia from beyond the limits of the Commonwealth.
Spent.

Customs duties of Western Australia

96. During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, the The Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit.
Spent or superfluous provisions reworded to provide for the conferral of power to thus legislate. It can be argued that "until the Parliament otherwise provides" is superfluous as it is inconceivable that the Parliament would legislate to permanently deprive itself of this power.

Financial assistance to States

97. Until the The Parliament otherwise provides, the laws in force in any Colony which has become or becomes a State may make laws with respect to the receipt of revenue and the expenditure of money on account of the Government of the Colony, and the revenue and audit of such receipt and expenditure, shall apply to the receipt of revenue and the expenditure of money on account of the Commonwealth in the State in the same manner as if the Commonwealth, or the Government or of an officer of the Commonwealth, were mentioned whenever the Colony, or the Government or an officer of the Colony, is mentioned.
Spent provisions reworded to provide for the conferral of power to thus legislate (e.g., in respect of the Audit Act).

Audit

98. The power of the Parliament to make laws in respect to trade and commerce extends to navigation and shipping, and to railways the property of any State.

Trade and commerce includes navigation and State railways

99. The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof.

Commonwealth not to give preference

100. The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation.

Nor abridge right to use water

101. There shall be an Inter-State Commission, with such powers of adjudication and administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder.

Inter-State Commission

102. The Parliament may by any law with respect to trade or commerce forbid, as to railways, any preference or discrimination by any State, or by any authority constituted under a State, if such preference or discrimination is undue and unreasonable, or unjust to any State; due regard being had to the financial responsibilities incurred by any State in connexion with the construction and maintenance of its railways. But no preference or discrimination shall, within the meaning of this section, be taken to be undue and unreasonable, or unjust to any State, unless so adjudged by the Inter-State Commission.

Parliament may forbid preferences by State

103. The members of the Inter-State Commission-

    (i) Shall be appointed by the Governor-General President in Council:

    (ii) Shall hold office for seven years, but may be removed within that time by the Governor-General President in Council, on an address from both Houses of the Parliament in the same session praying for such removal on the ground of proved misbehaviour or incapacity:

    (iii) Shall receive such remuneration as the Parliament may fix; but such remuneration shall not be diminished during their continuance in office.

Commissioners' appointment, tenure and remuneration

104. Nothing in this Constitution shall render unlawful any rate of the carriage of goods upon a railway, the property of a State, if the rate is deemed by the Inter-State Commission to be necessary for the development of the territory of the State, and if the rate applies equally to goods within the State and to goods passing into the State form other States.

Saving of certain rates

105. The Parliament may take over from the State their public debts, or a proportion thereof according to the respective numbers of their people as shown by the latest statistics of the Commonwealth, and may convert, renew, or consolidate such debts, or any part thereof; and the States shall indemnify the Commonwealth in respect of the debts taken over, and thereafter the interest payable in respect of the debts shall be deducted and retained from the portions of the surplus revenue of the Commonwealth payable to the several States, or if such surplus is insufficient, or if there is no surplus, then the deficiency or the whole amount shall be paid by the several States.

Taking over public debts of States

105A. (1) The Commonwealth may make agreements with the States with respect to the public debts of the States, including-

    (a) the taking over of such debts by the Commonwealth;

    (b) the management of such debts;

    (c) the payment of interest and the provision and management of sinking funds in respect of such debts;

    (d) the consolidation, renewal, conversion and redemption of such debts;

    (e) the indemnification of the Commonwealth by the States in respect of debts taken over by the Commonwealth; and

    (f) the borrowing of money by the States or by the Commonwealth, or by the Commonwealth for the States.

(2) The Parliament may make laws for validating any such agreement made before the commencement of this section.
Moved to Temporary and Transitional Provisions.

(3) The Parliament may make laws for the carrying out by the parties thereto of any such agreement.

(4) Any such agreement may be varied or rescinded by the parties thereto.

(5) Every such agreement and any such variation thereof shall be binding upon the Commonwealth and the States parties thereto notwithstanding anything contained in this Constitution or the Constitution of the several States or in any law of the Parliament of the Commonwealth or of any State.

(6) The powers conferred by this section shall not be construed as being limited in any way by the provision of section 105 of this Constitution.

Agreements with respect to State debts


Chapter V - The States

106. The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.

Saving of Constitutions.

107. Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.
Moved to Transitional and Temporary Provisions.

Saving of power of State Parliaments.

108. Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the State; and until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of the Colony had until the Colony became a State.
Moved to Transitional and Temporary Provisions.

Saving of State laws.

109. When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

Inconsistency of laws.

110. (1) The Head of State of a State shall be the Governor, who shall be appointed by the President, acting in accordance with the advice of the Executive Council of the State, or otherwise as may be prescribed by the law of the State.
C.f. Australia Act 1986, s7(1): "Her Majesty's representative in each State shall be the Governor." This substitutes the role of the Queen in respect of a Governor with the President, without which there could quite possibly be a constitutional vacuum. Although the Governor continues to be appointed by the Head of State, this sub-section is worded so as not impinge on State autonomy, so that the appointment and removal of the Governor continue to be determined by each State.

(2) Subject to sub-sections (3) and (4), all powers and functions of the Crown in respect of a State are vested in the Governor of the State and exercisable by the Governor of the State subject to such limitations as may be imposed by this Constitution and by the Constitution of the State, and to such regulations as the Parliament of the State prescribes.
C.f. Australia Act 1986, s7(2): "Subject to subsections (3) and (4) below, all powers and functions of Her Majesty in respect of a State are exercisable only by the Governor of the State." This is also partly modelled on s61(1), which make similar provision in respect of the President. This provides that the Governor exercises any powers and functions of the Crown in respect of the State.

(3) Subsection (2) does not apply in relation to the power to appoint, and the power to terminate the appointment of, the Governor of a State.
C.f. Australia Act 1986, s7(3), which is worded identically. This sub-section carries an analogous meaning to the Australia Act's s7(3).

(4) While the President is personally present in a State, he is not precluded from exercising any of his powers and functions in respect of the State that are the subject of sub-section (2), provided that he shall do so only during the pleasure of the Governor of the State.
C.f. Australia Act 1986, s7(4): "While Her Majesty is personally present in a State, Her Majesty is not precluded from exercising any of his powers and functons in respect of the State that are the subject of subsection (2) above." This sub-section limits the President from so acting except during the pleasure of the Governor (i.e., the Executive Government) of the State.

(5) Subject to this Constitution, the Parliament of the Commonwealth may make laws to give effect to the provisions of sub-sections (1), (2), (3) and (4) of this section, notwithstanding that the powers and functions of the Governor, and other matters relating to the office of Governor may be prescribed by the law of the State.
This ensures that the role, powers and functions of the Governor continue to be determined by each State.

(6) The provisions of this Constitution relating to the Governor of a State extend and apply to the Governor for the time being of the State, or other chief executive officer or administrator of the government of the State.
This ensures that the title of the Head of State of the State can be something other than "Governor".

Provisions referring to Governor.

111. The Parliament of a State may surrender any part of the State to the Commonwealth; and upon such surrender, and the acceptance thereof by the Commonwealth, such part of the State shall become subject to the exclusive jurisdiction of the Commonwealth.

States may surrender territory.

112. After uniform duties of customs have been imposed, a A State may levy on imports or exports, or on goods passing into or out of the State, such charges as may be necessary for executing the inspection laws of the State; but the net produce of all charges so levied shall be for the use of the Commonwealth; and any such inspection laws may be annulled by the Parliament of the Commonwealth.
Spent provisions reworded to provide for the conferral of power to thus legislate.

States may levy charges for inspection laws.

113. All fermented, distilled, or other intoxicating liquids passing into any State or remaining therein for use, consumption, sale, or storage, shall be subject to the laws of the State as if such liquids had been produced in the State.

Intoxicating liquids

114. A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force, or impose any tax on property of any kind belonging to the Commonwealth, nor shall the Commonwealth impose any tax on property of any kind belonging to a State.

States may not raise forces. Taxation of property of Commonwealth or State

115. A State shall not coin money, nor make anything but gold and silver coin a legal tender in payment of debts.

States not to coin money

116. The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
Moved to s52A.

Prohibition to legislate in respect of religion

117. A subject of the Queen person, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

Rights of residents in States

118. Full faith and credit shall be given, throughout the Commonwealth, to the laws, the public Acts and records, and the judicial proceedings of every State.

Recognition of laws, etc. of States

119. The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.

Protection of States from invasion and violence

120. Every State shall make provision for the detention in its prisons of persons accused or convicted of offences against the laws of the Commonwealth, and for the punishment of persons convicted of such offences, and the Parliament of the Commonwealth may make laws to give effect to this provision.

Custody of offenders against the laws of the Commonwealth


Chapter VI - New States

121. The Parliament may admit to the Commonwealth or establish new States, and may upon such admission or establishment make or impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit.

New States may be admitted or established.

122. The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may, subject to this Constitution, allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit, and such territory shall be called "a Territory of the Commonwealth".
Obsolete provisions deleted.

Government of territories.

123. The Parliament of the Commonwealth may, with the consent of the Parliament of a State, and the approval of the majority of the electors of the State voting upon the question, increase, diminish, or otherwise alter the limits of the State, upon such terms and conditions as may be agreed on, and may, with the like consent, make provision respecting the effect and operation of any increase or diminution or alteration of territory in relation to any State affected.

Alterations of limits of States.

124. A new State may be formed by separation of territory from a State, but only with the consent of the Parliament thereof, and a new State may be formed by the union of two or more States or parts of States, but only with the consent of the Parliaments of the States affected.

Formation of new States.


Chapter VII - Miscellaneous

124A. This Act Constitution, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen's ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.
Moved from Covering Clause 5 with obsolete provisions deleted.

Operation of the Constitution and laws

124B. "The Commonwealth" shall mean the Commonwealth of Australia as established under this Act Constitution.

"The States" shall mean such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the northern territory of South Australia, as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called "a State".

"Original States" shall mean such States as are parts of the Commonwealth at its establishment.
Moved from Covering Clause 6.

Definitions

125. The seat of Government of the Commonwealth shall be determined by the Parliament, and shall be within territory which shall have been granted to or acquired by the Commonwealth, and shall be vested in and belong to the Commonwealth, and shall be in the State of New South Wales, and be distant not less than one hundred miles from Sydney.

Such territory shall contain an area of not less than one hundred square miles, and such portion thereof as shall consist of Crown lands shall be granted to the Commonwealth without any payment therefor.

The Parliament shall sit at Melbourne until it meet at the seat of Government.
Spent provisions deleted.

Seat of Government

126. The Queen may authorise the Governor-General to appoint any person, or any persons jointly or severally, to be his deputy or deputies within any part of the Commonwealth, and in that capacity to exercise during the pleasure of the Governor-General as he thinks fit to assign to such deputy or deputies, subject to any limitations expressed or directions given by the Queen; but the appointment of such deputy or deputies shall not affect the exercise by the Governor-General himself of any power or function.
Moved to s61(6) and amended.

Power of President to appoint deputies


Chapter VIII - Alteration Of The Constitution

128. This Constitution shall not be altered except in the following manner:-

The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory of the Commonwealth to the electors qualified to vote for the election of members of the House of Representatives.

But if either House passes any such proposed law by an absolute majority, and the other House rejects or fails to pass it, or passes it with any amendment to which the first-mentioned House will not agree, and if after an interval of three months the first-mentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment which has been made or agreed to by the other House, and such other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will not agree, the Governor-General President in Council may submit the proposed law as last proposed by the first-mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to the electors in each State and Territory of the Commonwealth qualified to vote for the election of the House of Representatives.

When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only one-half the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails.

And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queen's assent. President who shall assent to it.

No alternation diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law.

In this section "Territory of the Commonwealth" means any territory referred to in section 122 of this Constitution in respect of which there is in force a law allowing its representation in the House of Representatives.

Mode of altering Constitution


Chapter IX - Transitional and Temporary Provisions

129. The Constitution Alteration (Republic) 1999 shall take effect on the first day of January, two thousand and one, but the Parliaments of the Commonwealth and the States and the legislatures of the Territories of the Commonwealth may at any time after the enactment thereof make any such laws, to come into operation on the day when the Constitution Alteration (Republic) 1999 takes effect, as they could have made if the Constitution Alteration (Republic) 1999 had taken effect upon its enactment.
As per the ConCon communiqué.

Commencement of amendments to establish republic

130. (1) Upon commencement of the Constitution Alteration (Republic) 1999, the Queen shall cease to be Head of State of the Commonwealth or any part thereof, and shall have no powers or functions with respect to the Commonwealth, a State or Territory, or part thereof, and the office of Governor-General shall cease to exist.

(2) Notwithstanding anything in sub-section (1), if, before the commencement of the Constitution Alteration (Republic) 1999, the Parliament of a State so resolves, the Queen shall continue to be Head of State of the State (provided that Her Majesty does not decline to so continue), and under such circumstances, the provisions of Chapter V of this Constitution referring to the President in respect of that State shall be construed as referring to the Queen in respect of that State, and the provisions of this Constitution and in any law of the Commonwealth or of the State referring to the Crown (in the sense of an individual person) in right of that State shall be construed as referring to the Queen. The Parliament of that State may at any time thereafter resolve that the Queen shall cease to be Head of State of that State, and thereafter, this sub-section shall be of no effect in respect of that State.
Should any State decide to retain the Queen as its Head of State, this section makes provision therefor.

Queen to cease to be Head of State

131. Notwithstanding anything in this Constitution, the first President of the Commonwealth shall be the person occupying the office of Governor-General at the date of the enactment of the Constitution Alteration (Republic) 1999, and shall hold office until the expiration of five years from the date on which he entered upon that office, unless before the expiration of that period he dies, resigns or is removed from office in accordance with this Constitution. Thereafter, the President shall be chosen in accordance with section 59.

Last Governor-General to be first President

132. With the exception of the Queen and the Governor-General, the Constitution Alteration (Republic) 1999 shall not affect the holding of any office established by or referred to in the Constitution, and a person holding the office immediately before the Constitution Alteration (Republic) 1999 takes effect shall continue to hold the office as if the Constitution Alteration (Republic) 1999 has not been made.

Continuation of holding of offices

133. The Constitution Alteration (Republic) 1999 shall not affect the holding of office of Governor of a State, and a person holding the office of Governor of the State immediately before the Constitution Alteration (Republic) 1999 takes effect shall continue to hold the office as if he had at the time of his appointment to that office been appointed as Head of State of the State in accordance with section 110, and upon commencement of the Constitution Alteration (Republic) 1999, a Governor of a State shall cease to be Her Majesty's representative in the State.
Prevents the States from being left in a legal vacuum.

Governors to continue to hold offices

134. Subject to this Constitution, abolition of the monarchy in itself shall not affect any power, function, right, privilege, immunity, or prerogative derived from the royal prerogative and exercisable by the Crown.

Royal prerogative of Crown unaffected

135. Nothing in this Constitution shall be taken to prevent the continued use of the terms "Crown", "Royal" or other related terms (including the use of the terms "Crown land" and "Crown lease"), or of the royal insignia, by any person or organisation, whether public or private. Any change that may be effected in any context to the terms "Crown", "Royal" or other related terms shall not affect any existing rights and entitlements in respect of that to which those terms apply.
Provision for continued use of these terms, and to ensure that any change to these terms does not affect rights and entitlements in respect of Crown land, Crown lease etc., as per the ConCon communiqué.

Provision for continued use of "Crown" etc.

136. The Federal Council of Australasia Act, 1885, is hereby repealed, but so as not to affect any laws passed by the Federal Council of Australasia and in force at the establishment of the Commonwealth.

Any such law may be repealed as to any State by the Parliament of the Commonwealth, or as to any colony not being a State by the Parliament thereof.
Moved from Covering Clause 7.

Repeal of Federal Council Act

137. After the passing of this Act the Colonial Boundaries Act, 1895, shall not apply to any colony which becomes a State of the Commonwealth; but the Commonwealth shall be taken to be a self-governing colony for the purposes of that Act.
Moved from Covering Clause 8.

Application of Colonial Boundaries Act

138. Until the Parliament otherwise provides, any person of the full age of eighteen years who is not a citizen of the Commonwealth, but who was qualified as an elector for the House of Representatives immediately before the Constitution Alteration (Republic) 1999 takes effect shall remain so qualified, notwithstanding the provisions of section 30.
This preserves the status quo should there be any exceptions to the qualifications expressed in s30, such as the entitlement of certain British subjects to vote.

Saving of qualifications of electors

139. The Until the powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared they shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.
Derived from s49.

Powers, privileges and immunities of Parliament

140. The reference to conventions in section 61 subsection (3) shall be taken to include a reference to the conventions of the office of Governor-General.
Ensures that the conventions attaching to the office Governor-General continue to apply to the office of President.

Interpretation of "conventions"

141. In respect of matters which, under this Constitution, pass to the Executive Government of the Commonwealth, all powers and functions which at the establishment of the Commonwealth are vested in the Governor of a Colony, or in the Governor of a Colony with the advice of his Executive Council, or in any authority of a Colony, shall vest in the Governor-General President, or in the Governor-General President in Council, or in the authority exercising similar powers under the Commonwealth, as the case requires.
Derived from s70.

Certain powers of Governors to vest in President

142. Nothing in the provisions added to this section section 72 by the Constitution Alteration (Retirement of Judges) 1977 affects the continuance of a person in office as a Justice of a court under an appointment made before the commencement of those provisions.
Moved from s72.

Continuance in office of Judges

143. The Parliament may make laws for validating any such agreement made pursuant to section section 105A before the commencement of this that section.
Moved from s105A(2).

Saving of agreements with respect to State debts

144. Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.
Moved from s107.

Saving of power of State Parliaments

145. Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the State; and until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of the Colony had until the Colony became a State.
Moved from s108.

Saving of State laws

146. A reference to a territory in the context of section 124B shall be taken to be a reference to a Colony or to a territory (whether or not a Territory of the Commonwealth) which becomes a new State.
Apart from provisions in this Chapter, this is the only provision in the rest of the Constitution which would have included the word "Colony". To have included the word in this manner would have been anomalous.

Interpretation of "territory"


Schedule I

OATH OF ALLEGIANCE

I, A.B., do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law uphold the Constitution and the laws, that I will fulfil my duties faithfully and conscientiously, and that I will bear true allegiance to the Commonwealth of Australia and to its People, whose democratic beliefs I share, whose rights and liberties I respect, whose laws I will uphold and obey, and to whose service and welfare I will dedicate my abilities. SO HELP ME GOD!

AFFIRMATION OF ALLEGIANCE

I, A.B., do solemnly and sincerely affirm and declare that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law uphold the Constitution and the laws, that I will fulfil my duties faithfully and conscientiously, and that I will bear true allegiance to the Commonwealth of Australia and to its People, whose democratic beliefs I share, whose rights and liberties I respect, whose laws I will uphold and obey, and to whose service and welfare I will dedicate my abilities.

(NOTE - The name of the King or Queen of the United Kingdom of Great Britain and Ireland for the time being is to be substituted from time to time.)


Schedule II

OATH OF OFFICE FOR THE OFFICE OF PRESIDENT

I, A.B., do swear that I will give my undivided loyalty to and will well and truly serve the Commonwealth of Australia and its People in the office of President of the Commonwealth of Australia, and that I will do right to all manner of people without fear or favour, affection or ill-will in accordance with the Constitution and the law. SO HELP ME GOD!

AFFIRMATION OF OFFICE FOR THE OFFICE OF PRESIDENT

I, A.B., do solemnly and sincerely affirm and declare that I will give my undivided loyalty to and will well and truly serve the Commonwealth of Australia and its People in the office of President of the Commonwealth of Australia, and that I will do right to all manner of people without fear or favour, affection or ill-will in accordance with the Constitution and the law.

(NOTE - The title of the office of President is to be substituted with the title of the relevant office as the case may be.)


Last updated 14 March 1999.


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