Explanatory Notes
On My Draft "ConCon" Constitution

By Peter Crayson

This document considers the resolutions of the Constitutional Convention (ConCon) which pertain to constitutional amendments for the referendum this year (1999), and how they have been implemented in my draft "ConCon" Constitution. The text of the resolutions appears in blue. My comments appear in red italics.

The ConCon Resolutions

The following specific matters, resolved by the Convention, pertain to constitutional amendments:

Whether Australia should become a republic

That this Convention supports, in principle, Australia becoming a republic.

That this Convention supports the adoption of a republican system of government on the "Bipartisan Appointment of the President Model" as set out below in preference to there being no change to the Constitution.

That this Convention recommends to the Prime Minister and Parliament that the Bipartisan Appointment of the President Model, and other related changes to the Constitution, supported by this Convention, be put to the people in a constitutional referendum.
See comments below; resolutions on specifics flesh out these more general resolutions.

Timing and circumstances of any change

That a referendum for change to a republic or for the maintenance of the status quo be held in 1999. If the referendum is in favour of a republic, that the new republic come into effect by 1 January 2001.
Expressed in the Preamble and implemented in full in s129 of my draft "ConCon" Constitution.

Implications for the States

That the Commonwealth Government and Parliament extend an invitation to State Governments and Parliaments to consider:

The implications for their respective Constitutions of any proposal that Australia become a republic; and

The consequences to the Federation if one or more States should decline to accept republican status.

The States are free to decide whether or not they will move to a republican form of government, and if and when that transition will take place. This is implemented in s130(2) of my draft "ConCon" Constitution, which enables a State to retain the Queen as its Head of State (provided she doesn't decline to do so) by its Parliament passing a resolution to that effect.

That any move to a republic at the Commonwealth level should not impinge on State autonomy, and the title, role, powers, appointment and dismissal of State heads of state should continue to be determined by each State.
Implemented in s110 of my draft "ConCon" Constitution. This borrows heavily from the text of s7 of the Australia Act 1986, and thereby retains the status quo. Sub-section (1) provides that in lieu of alternative arrangements being prescribed by the State, the Governor is appointed by the President on the advice of the Executive Council of the State, making such appointment as much a formality as is appointment by the Queen. If this arrangement is not acceptable to a State, it is free to change it; however, such an arrangement is necessary if a constitutional vacuum is not to occur.

While it is desirable that the advent of the republican government occur simultaneously in the Commonwealth and all States, not all States may wish, or be able, to move to a republic within the timeframe established by the Commonwealth. That the Government and Parliament should accordingly consider whether specific provision needs to be made to enable States to retain their current constitutional arrangements.
As above, this is implemented in full in s110 and s130 of my draft "ConCon" Constitution.

The Bipartisan Appointment of the President Model.

In the event that Australia becomes a republic, the model adopted be the Bipartisan Appointment of the President Model.

Nomination Procedure

The objective of the nomination process is to ensure that the Australian people are consulted as thoroughly as possible. This process of consultation shall involve the whole community, including:

State and Territory Parliaments;

local government;

community organisations, and

individual members of the public

all of whom should be invited to provide nominations.
Implemented in full in s59(2)(ii) of my draft "ConCon" Constitution. This requires the nomination committee, which I have named the Constitutional Council, to "invite and receive nominations from the People". Details which spell out that the above organisations should be invited can be provided by means of legislation.

Parliament shall establish a Committee which will have responsibility for considering the nominations for the position of President. The Committee shall report to the Prime Minister.
Implemented in s59(2)(iv) of my draft "ConCon" Constitution. Furthering the notion of "bipartisanship", this requires the Constitutional Council to report not only to the Prime Minister, but also to the President and to the Leader of the Opposition. S65(3) would require the Prime Minister to fully inform the President anyway (it states that "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"), and seeing the Prime Minister and the Leader of the Opposition have both taken part in the deliberations and proceedings of the Constitutional Council, they are in fact already aware of the contents of the report before its formal delivery; the requirement, then, to report to all three officials is simply a matter of protocol.

While recognising the need for the Committee to be of a workable size, its composition should have a balance between parliamentary (including representatives of all parties with party status in the Commonwealth Parliament) and community membership and take into account so far as practicable considerations of federalism, gender, age and cultural diversity.
The composition of the Constitutional Council is covered in Chapter II Part V, which consists of s67A. Sub-section (2) specifies which officials shall be ex officio members, and that there shall be 20 "community members". Sub-section (7) specifies that the method of selection of the community members be determined by legislation, but in the absence of legislation (to avoid a constitutional vacuum), they would be elected by proportional representation by a secret ballot of the Senate. In any case, it is also prescribed in sub-section (7) that in choosing the community members, the above-mentioned considerations must be taken into account.

The Committee should be mindful of community diversity in the compilation of a short-list of candidates for consideration by the Prime Minister.
Implemented in full in s69(2)(iii) of my draft "ConCon" Constitution.

This process for community consultation and evaluation of nominations is likely to evolve with experience and is best dealt with by ordinary legislation or parliamentary resolution; and
Implemented in full in s59(4) of my draft "ConCon" Constitution, which enables the Parliament to legislate with respect to the conduct of the nomination and election of the President.

The Committee should not disclose any nomination without the consent of the nominee.
Implemented in full in s59(2)(ii) of my draft "ConCon" Constitution.

Appointment or Election Procedure

Having taken into account the report of the Committee, the Prime Minister shall present a single nomination for the office of President, seconded by the Leader of the Opposition, for approval by a Joint Sitting of both Houses of the Federal Parliament. A two thirds majority will be required to approve the nomination.

Implemented in full in s59(3) of my draft "ConCon" Constitution, with some detail fleshed out to ensure that the process can not become deadlocked.

Dismissal Procedure

The President may be removed at any time by a notice in writing signed by the Prime Minister. The President is removed immediately the Prime Minister's written notice is issued. The Prime Minister's action must be presented to a meeting of the House of Representatives for the purpose of its ratification within 30 days of the date of removal of the President. In the event the House of Representatives does not ratify the Prime Minister's action, the President would not be restored to office, but would be eligible for re-appointment. The vote of the House would constitute a vote of no confidence in the Prime Minister.

Implemented in full in s60A(2) of my draft "ConCon" Constitution. This suggests, but does not require, that the Prime Minister also state the reason for the dismissal.

Definition of Powers

The powers of the President shall be the same as those currently exercised by the Governor-General.

Of the literal powers of the Governor-General, some are specified as being powers which are exercisable by the Governor-General in Council (i.e., with the advice of the Executive Council), and others are conferred solely on the Governor-General (i.e., not required to be in accordance with the advice of the Executive Council). However, in practice, this division is arbitrary, and all powers are either considered to be "non-reserve" (i.e., non-discretionary: exercisable only in accordance with the advice of the Executive Government) or "reserve" (i.e., discretionary: exercisable without or contrary to the advice of the Executive Government). Those powers which are generally accepted as being reserve are the powers to:

appoint a Prime Minister;
dismiss a Prime Minister;
to refuse to dissolve Parliament; and
in limited circumstances, to force a dissolution of Parliament.
It is assumed that the ConCon resolution requiring that "the powers of the President shall be the same as those currently exercised by the Governor-General" refers to the latter practical distinction of reserve and non-reserve powers, and not to the former theoretical distinction of powers exercisable with or without the advice of the Executive Council.
It should also be noted that there are some grey areas (where, in theory, the Governor-General may act according to his discretion, but is constrained only by convention). I have in some areas deemed it appropriate that a President be required to act as a matter of course (i.e., with no advice required and with no discretion permitted), and in some other areas that a President retain or acquire some discretion.
Any reference to the "President in Council" requires that the President act in accordance with the advice of the Executive Council (see s61(2)), meaning that any such power is by definition non-reserve. Any references to the "President" (see s61(3)), depending on the context, may either require that (a) the President must act as prescribed, there being no advice required nor any discretion permitted; in such cases, where the President refuses or fails to act, after expiry of a particular time limit, the President shall be deemed to have acted (see s5(2) for an example); or (b) the President may act according to his discretion, but shall have due regard to established conventions.
The way in which these are retained unmodified, or modified in respect of the President, in my draft "ConCon" Constitution are described in the following tables:

Powers of the Governor-General exercisable in Council

Reference Power of Governor-General Section Power of President Section
1 Issue writs for House of Representatives elections. ss32, 33 Unchanged for s32, but s33 requires the President to act with no advice required and with no discretion permitted. ss32,33
2 Establish departments of State. s64 Unchanged. s63(1)
3 Appoint and, on address from both Houses, remove Justices of the High Court and judges of other federal courts. s72 Unchanged. Note, however, that I have suggested as an alternative to 72(i) that the advice in respect of appointment be not of the Executive Council but of the Constitutional Council; and as an alternative to 72(ii) that the President, and not the President in Council, remove a Justice/judge. This reinforces the doctrine of the separation of powers by removing the appointment and removal of judges from the hands of a partisan Executive Government. s72
4 Appoint members of the Inter-State Commission, if it exists. s103 Unchanged. s103
Powers conferred solely on the Governor-General in respect of the Parliament

Reference Power of Governor-General Section Power of President Section
5 Dissolve the House of Representatives at any time during its term. ss5, 28
Sub-section (1) of s5 requires the President to act only on the advice of the Executive Council in dissolving the House of Representatives. The practice is unchanged (non-reserve), but the letter of the law now expresses these unambiguously as non-reserve powers.
In s28, the practice is unchanged (non-reserve), but the letter of the law now expresses these unambiguously as non-reserve powers by specifying "President in Council".
A new s64 confers some reserve powers on the President in respect of the House of Representatives. Sub-section (2) allows the President to 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, and sub-section (3) allows the President to dissolve the House of Representatives or dissolve the House of Representatives and dismiss the Prime Minister if the President believes that the Executive Government is breaching the Constitution, or is not complying with an order of a court, or is persisting in other unlawful behaviour. In this respect, the practice is unchanged (reserve), but the letter of the law now expresses these unambiguously as reserve powers. ss5, 28, 64
6 Dissolve the Senate as well as the House of Representatives (a double dissolution) in the event of a deadlock and, if the election fails to resolve that deadlock, may convene a joint sitting of both Houses. s57 The power to cause a double dissolution is unchanged in practice (limited reserve power constrained by convention) and in the letter of the law.
The practice of the power to subsequently convene a joint sitting is unchanged (non-reserve), but the letter of the law now expresses this unambiguously as a non-reserve power by specifying "President in Council". s57
7 Summon Parliament, fix session times and prorogue Parliament. s5 s5 contains a number of parts, which may be divided as follows:
(1) The President is required, either on the advice of the Executive Council (sub-section(1)), or as otherwise required as a matter of course by the Constitution (sub-section(2)), to: appoint times for sessions of Parliament, summon Parliament, convene joint sittings, and prorogue the Parliament. The practice is unchanged (non-reserve), but the letter of the law now expresses these unambiguously as non-reserve powers.
(2) I have deemed it appropriate, however, for the President to retain some discretionary powers, as currently permitted by the letter of the law, to summon Parliament and convene joint sittings, as a safeguard against a recalcitrant, mischievous government which refuses to allow Parliament to meet. s5
8 In the absence of the President of the Senate, notify the Governor of a State of a vacancy in that State's Senate representation. s21 Unchanged. The President is required to act as a matter of course. s21
9 Assent to, or withhold assent from, a proposed law passed by Parliament, reserve a law for the Queen's pleasure, or return a law with recommendations for amendment. s58 The President is required to assent to a proposed law passed by Parliament if so advised by the Federal Executive Council, but he may at his discretion return the proposed law to the House in which it originated with his recommendations. N/A
10 Recommend the appropriation of moneys. s56 The practice of this power is unchanged (non-reserve), but the letter of the law now expresses this unambiguously as a non-reserve power by specifying "President in Council". s56
11 Submit a referendum proposal to the people if it is the subject of a deadlock between the two Houses. s128 The practice of this power is unchanged (non-reserve), but the letter of the law now expresses this unambiguously as a non-reserve power by specifying "President in Council". s128
Powers conferred solely on the Governor-General in respect of the Executive Government

Reference Power of Governor-General Section Power of President Section
12 Appoint and dismiss Ministers and, in the absence of parliamentary provision, direct what offices Ministers shall hold. ss64, 65 In accordance with conventional practice, this power, exercised only on the advice of the Prime Minister, is unchanged (non-reserve), but the letter of the law now expresses this unambiguously, and as a non-reserve power. ss63(1), (2) and (4)
13 Appoint and dismiss the members of the Federal Executive Council. s62 This power no longer exists. The Ministers of State for the time being are, according to s65(1), ex officio the members of the Federal Executive Council. N/A
14 Command the defence forces. s68 The practice of this power is unchanged (non-reserve), but the letter of the law now expresses this unambiguously as a non-reserve power by specifying that "any power or function vested in the President as Commander in Chief shall be exercised or performed only by the President in Council". s68
15 On behalf of the Queen, exercise the executive power of the Commonwealth. This includes the traditional Crown prerogatives, preventing breaches of the Constitution and Commonwealth laws and making regulations and various other orders. s61 The exercise of the executive power of the Commonwealth is made expressly subject to limitations imposed by the Consitution, according to s61(1). This is clarified further in sub-sections (2)-(5). Sub-section (1) also provides for the continuation of the prerogative powers, privileges and immunities, and s134 reinforces this. ss61, 134
Powers conferred solely on the Governor-General as the Queen's Representative

Reference Power of Governor-General Section Power of President Section
16 In addition to the powers expressly conferred by the Constitution, "such powers and functions of the Queen as Her Majesty may be pleased to assign to him" s2 This provision becomes obsolete in a republican system and has been deleted. The nearest equivalent is s59(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". s59(1)
17 With the Queen's consent, appoint a deputy with authority to exercise her or her powers or functions s126 In accordance with conventional practice, this power, exercised only on the advice of the Prime Minister, is unchanged (non-reserve), but the letter of the law now expresses this unambiguously, and as a non-reserve power. s61(6)
Other powers and functions of the President explicitly provided for in the Constitution but not explicitly provided for in respect of the Governor-General (or the Queen), or otherwise different from the powers and functions of the Governor-General (or the Queen).

Reference Power of Governor-General (Queen) Section Power of President Section
18 Although it is not expressly stated, it is clear that the Queen is the Head of State; i.e., the official at the apex of the body politic. N/A The President is the Head of State. s59(1)
19 Although there is no express constitutional provision for the appointment of an "Acting Governor-General", arrangements exist for the appointment of a person to act as an "Administrator". s4 In appointing an Acting President, the situation may arise where the President may designate an Acting President. However, this situation can arise only where the Parliament has not otherwise provided; the constitutional provision is in place only to avoid a potential constitutional vacuum. s60(1)
20 Although there is no express Constitutional provision for the conferral by the Parliament of other powers on the Governor-General, this power exists and is used. N/A Unchanged in practice. The Parliament may confer other powers on the President. s61(5)
21 Although there is no express Constitutional provision therefor, the Governor-General appoints the Prime Minister. N/A Unchanged in practice. The President appoints the Prime Minister. s62(1)
22 Although there is no express Constitutional provision therefor, the Governor-General conventionally may 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. N/A Unchanged in practice. The President may 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. s64(1)
23 Although there is no express Constitutional provision therefor, the Governor-General conventionally may 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. N/A Unchanged in practice. The President may 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. s64(2)
24 Although there is no express Constitutional provision therefor, if the Governor-General believes that the Executive Government of the Commonwealth is breaching the Constitution or is not complying with an order of a court or is persisting in other unlawful behaviour, he may, according to his discretion, dissolve the House of Representatives or dissolve the House of Representatives and dismiss the Prime Minister, and in the event of the Prime Minister being so dismissed, he may, according to his discretion, appoint as Prime Minister such other person who he 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. N/A Unchanged in practice. If the President believes that the Executive Government of the Commonwealth is breaching the Constitution or is not complying with an order of a court or is persisting in other unlawful behaviour, he may, according to his discretion, dissolve the House of Representatives or dissolve the House of Representatives and dismiss the Prime Minister, and in the event of the Prime Minister being so dismissed, he may, according to his discretion, appoint as Prime Minister such other person who he 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. s64(3)
25 Although there is no express Constitutional provision therefor, the Governor-General convenes the Federal Executive Council on the advice of the Executive Government. N/A Similarly to s5, s65(2) contains a number of parts, which may be divided as follows:
(1) The President is required, in accordance with the advice of the Prime Minister, to convene the Federal Executive Council.
(2) I have deemed it appropriate for the President to acquire a discretionary power to convene the Federal Executive Council as a safeguard against a recalcitrant, mischievous Prime Minister who refuses to convene the Federal Executive Council. s65(2)
26 Although there is no express Constitutional provision therefor, it is the traditional right of the sovereign, and by extension, of the Governor-General, to be kept fully informed concerning the general conduct of the government and to be furnished with such information as he may request, and to encourage and to warn the Executive Goverment at any time. N/A Unchanged in practice. It is the right of the President to be kept fully informed concerning the general conduct of the government and to be furnished with such information as he may request, and to encourage and to warn the Executive Goverment at any time. ss65(3), 65(4)
27 N/A N/A The President is an ex-officio member of the Constitutional Council. ss67A(2)
28 Although there is no express Constitutional provision therefor, the prerogative powers of the Governor-General include those to declare war, to appoint ambassadors, consuls and other diplomatic representatives, to grant reprieves and pardons, and to confer honours and titles. N/A The President in Council is empowered to declare war, to appoint ambassadors, consuls and other diplomatic representatives, to grant reprieves and pardons, and to confer (non-hereditary) honours and titles. s69
29 The Australia Act provides that the Queen's representative in each State shall be the Governor, and the Constitutions of the States provide that the Governor shall be appointed by the Queen. The Australia Act provides that in so doing, the Queen acts in accordance with the acvice of the Premier. N/A The Head of State of a State is 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. s110(1)
30 The Australia Act provides that the while the Queen is personally present in a State, she is not precluded from exercising any of his powers and functions in respect of the State. N/A 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, provided that he shall do so only during the pleasure of the Governor (i.e., the Executive Government) of the State. This enables a State Government to invite the President to perform some official duty if it sees fit to do so. s110(4)

To that end, the Convention recommends that the Parliament consider:

the non-reserve powers (those exercised in accordance with ministerial advice) being spelled out so far as practicable; and

See the above table.

a statement that the reserve powers and the conventions relating to their exercise continue to exist.
Section 61(3) requires that the President, in exercising any power according to his discretion, "shall have due regard to established conventions". Section 140 explains that this "reference to conventions ... shall be taken to include a reference to the conventions of the office of Governor-General".

Qualifications for Office

Australian citizen, qualified to be a member of the House of Representatives (see s. 44 Constitution).

Implemented in full in s59(9) of my draft "ConCon" Constitution. C.f. s16 which prescribes the qualifications of a senator. s59(9) refers to s34 which prescribes the qualifications of a member of the House of Representatives, which has been amended to require that as minimum conditions, a member must be 18 years old, must be qualified to vote at elections of the House of Representatives, and must be an Australian citizen. The Parliament may prescribe additional qualifications, which is no different from the status quo.

Term of Office

Five years.

Implemented in full in s59(7) of my draft "ConCon" Constitution.

A Preamble

The Convention also resolved that the Constitution include a Preamble, noting that the existing Preamble before the Covering Clauses of the Imperial Act which enacted the Australian Constitution (and which is not itself part of our Constitution) would remain intact.
The existing Preamble has been retained unaltered at the beginning of the Constitution Act in my draft "ConCon" Constitution.

Any provisions of the Constitution Act which have continuing force should be moved into the Constitution itself and those which do not should be repealed.
Covering Clause 1 (specifying the short title of the Commonwealth of Australia Constitution Act) has been retained.

Covering Clause 2 has been moved into the Constitution proper to s61(4) and amended to include a definition of the current usage of the term Crown as it refers to the organs of civil rule and government (e.g., Crown land, Crown lease) and as it refers to the Head of State as an individual.

Covering Clause 3 is redundant, and has been deleted.

Covering Clause 4 is spent, and has been deleted.

Covering Clause 5 has been moved to s124A, and obsolete provisions have been deleted.

Covering Clause 6 has been moved to s124B with consequential amendments which, amongst other things, render it lexicographically "tidy".

Covering Clause 7 may be spent, but in any case has been moved to s136 in the new Chapter IX, "Temporary and Transitional Provisions".

Covering Clause 8 may be spent, but in any case has been moved to s137 in the new Chapter IX, "Temporary and Transitional Provisions".

Covering Clause 9 (which simply introduces the Constitution proper with the words "The Constitution of the Commonwealth shall be as follows:") has been retained.

The Preamble to the Constitution should contain the following elements:

Introductory language in the form "We the people of Australia";
Implemented in full in the 5th paragraph of the Preamble of my draft "ConCon" Constitution.

Reference to "Almighty God";
Implemented in full in the 2nd paragraph of the Preamble of my draft "ConCon" Constitution: "... 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...".

Reference to the origins of the Constitution, and acknowledgment that the Commonwealth has evolved into a sovereign, independent and democratic nation under the Crown;
Implemented in full in the 2nd and 3rd paragraphs of the Preamble of my draft "ConCon" Constitution: "... 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".

Recognition of our federal system of representative democracy and responsible government;
Implemented in full in the 5th paragraph of the Preamble of my draft "ConCon" Constitution: "...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...".

Affirmation of the rule of law;
Implemented in full in the 5th paragraph of the Preamble of my draft "ConCon" Constitution: "...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...".

Acknowledgment of the original occupancy and custodianship of Australia by Aboriginal peoples and Torres Strait Islanders;
Implemented in full in the 1st paragraph of the Preamble of my draft "ConCon" Constitution: "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...".

Recognition of Australia's cultural diversity;
Implemented in full in the 5th paragraph of the Preamble of my draft "ConCon" Constitution: "...finding unity in diversity...".

Affirmation of respect for our unique land and the environment;
Implemented in full in the 5th paragraph of the Preamble of my draft "ConCon" Constitution: "...respecting the land and the environment which we share...".

Reference to the people of Australia having agreed to re-constitute our system of government as a republic; and
Implemented in full in the 5th paragraph of the Preamble of my draft "ConCon" Constitution: "...have decided to constitute the Commonwealth of Australia on the first day of January, 2001 as a federal republic...".

Concluding language to the effect that "[We the people of Australia] asserting our sovereignty, commit ourselves to this Constitution".
Implemented in full in the 5th paragraph of the Preamble of my draft "ConCon" Constitution: "...and declaring ourselves to be a sovereign and independent 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".

The following matters be considered for inclusion in the Preamble:

Affirmation of the equality of all people before the law;

Implemented in full in the 5th paragraph of the Preamble of my draft "ConCon" Constitution: "...acknowledging the equality of all before the law, including equality irrespective of gender...".

Recognition of gender equality; and
Implemented in full in the 5th paragraph of the Preamble of my draft "ConCon" Constitution: "...acknowledging the equality of all before the law, including equality irrespective of gender...".

Recognition that Aboriginal people and Torres Strait islanders have continuing rights by virtue of their status as Australia's indigenous peoples.
Not implemented in my draft "ConCon" Constitution.

Care should be taken to draft the Preamble in such a way that it does not have implications for the interpretation of the Constitution.

Chapter 3 of the Constitution should state that the Preamble not be used to interpret the other provisions of the Constitution.
Implemented in full in s76(i) of my draft "ConCon" Constitution.

Other issues

As to other issues, the Convention resolved that, in the event Australia becomes a republic:

the name "Commonwealth of Australia" be retained

Implemented in full in the 2nd paragraph of the Preamble and s124B of my draft "ConCon" Constitution.

Australia remain a member of the Commonwealth of Nations in accordance with the rules of the Commonwealth.
This has not been implemented in my draft "ConCon" Constitution, as it is a matter for the Parliament and the Executive Government.

the title of the head of state should be "President".
Implemented in full in s59(1) of my draft "ConCon" Constitution.

the head of state should swear or affirm an oath of allegiance and an oath of office,
Implemented in full in s59(6) and in Schedules I and II of my draft "ConCon" Constitution.

The oath of allegiance might appropriately be modelled on that provided by the Australian Citizenship Act 1948 as follows:

[Under God] I pledge my loyalty to Australia and its people, whose democratic beliefs I share, whose rights and liberties I respect and whose laws I will uphold and obey.

A similar oath/affirmation has been implemented in Schedule I of my draft "ConCon" Constitution.

The oath [or affirmation] of office might appropriately be modelled on the following words:

I swear, humbly relying on the blessing of Almighty God, [or, I do solemnly and sincerely affirm and declare] that I will give my undivided loyalty to and will well and truly serve the Commonwealth of Australia and all its people according to law in the office of the President of the Commonwealth of Australia, and I will do right to all manner of people after the laws and usages of the Commonwealth of Australia without fear or favour, affection or ill will

I swear [or affirm] that I will be loyal to and serve Australia and all its people according to law without fear or favour.

An oath/affirmation similar to the longer version above has been implemented in Schedule II of my draft "ConCon" Constitution.

The Commonwealth Government and Commonwealth Parliament give consideration to the transitional and consequential matters which will need to be addressed, by way of constitutional amendment or other legislative or executive action, including:

The date of commencement of the new provisions;

Expressed in the Preamble and implemented in full in s129 of my draft "ConCon" Constitution.

The commencement in office of the head of state upon oath or affirmation;
Implemented in full in s59(5) and s59(6) and in Schedules I and II of my draft "ConCon" Constitution.

Provision for an acting head of state in certain circumstances;
Implemented in full in s59A, which empowers the Parliament to provide for a Vice President should it so choose, and in s60, which provides for an Acting President, regardless of whether or not there is a Vice President.

Provision for continuation of prerogative powers, privileges and immunities until otherwise provided;
Implemented in full in s61(1) of my draft "ConCon" Constitution, which vests the prerogative powers, privileges and immunities in the President, and s134 in the new Chapter IX, "Temporary and Transitional Provisions", which provides that abolition of the monarchy does not affect the continuation of prerogative powers, privileges and immunities.

Provision for salary and pension;
Implemented in full in s59(10) of my draft "ConCon" Constitution.

Provision for voluntary resignation;
Implemented in full in s60A(1) of my draft "ConCon" Constitution.

Provision for the continued use, if and where appropriate, of the term Royal, Crown or other related terms, and use of the royal insignia, by the Defence Forces or any other government body;
Implemented in full in s61(4) and s135 (in the new Chapter IX, "Temporary and Transitional Provisions") of my draft "ConCon" Constitution.

Provision for the continued use of the term Royal, Crown or other related term, and use of royal insignia, by non-government organisations;
Implemented in full in s135 (in the new Chapter IX, "Temporary and Transitional Provisions") of my draft "ConCon" Constitution.

Provision for notes and coins bearing The Queen's image to be progressively withdrawn from circulation; and
This has not been implemented in my draft "ConCon" Constitution, as it is a matter for the Parliament and the Executive Government.

Provision to ensure that any change to the term Crown land, Crown lease or other related term does not affect existing rights and entitlements to land;
Implemented in full in s135 (in the new Chapter IX, "Temporary and Transitional Provisions") of my draft "ConCon" Constitution.

Spent or transitory provisions of the Constitution should be removed.
This has been implemented throughout my draft "ConCon" Constitution. The following provisions have been deleted in their entirety due to their being spent, transitional, obsolete or outmoded:

Covering Clause 3 (Proclamation of the Commonwealth).
Covering Clause 4 (Commencement of Act).
s5, last paragraph (First session of the Parliament).
s7, 2nd paragraph (The Senate).
s15, 5th paragraph et seq (Casual vacancies in the Senate).
s25 (Provision as to races disqualified from voting).
s26 (Representatives in first Parliament).
s59 (original) (Disallowance by Queen).
s60 (original) (Signification on Queen's pleasure in Bills reserved).
s64 (original) (Ministers of State).
s69 (Transfer of certain departments).
s73, 3rd paragraph (Appellate jurisdiction of High Court - Appeals to the Queen in Council).
s74 (Appeal to the Queen in Council).
s83 (Money to be appropriated by law).
s84, 4th paragraph (Transfer of officers).
s86 (Duties of customs and of excise, and bounties).
s87 (Application of revenue from duties of customs and of excise).
s89 (Payment to States before uniform duties).
s90, 2nd paragraph (Exclusive power over customs, excise and bounties - bounties of State taken to be good).
s92, 2nd paragraph (Trade within the Commonwealth to be free - goods imported before uniform duties).
s93 (Payment to States fof five years after uniform tariffs).
s95 (Customs duties of Western Australia).
s125, 3rd paragraph (Seat of Government).
Note to Schedule (which becomes Schedule I).

The following provisions have been partially deleted or otherwise modified due to their being spent, transitional, obsolete or outmoded:
Covering Clause 5 (Operation of the Constitution and laws).
s10 (Laws relating to election of Senators).
s13 (Rotation of Senators).
s29 (Electoral divisions).
s30 (Qualification of electors).
s31 (Method of election of members).
s32 (Writs for general elections).
s34 (Qualification of members).
s44 (Disqualification).
s46 (Penalty for sitting when disqualified).
s48 (Remuneration of members).
s51(xxxviii) (Legislative powers of the Parliament - Powers exercised at request of States).
s73(ii) (Appellate jurisdiction of High Court - Appeals to the Queen in Council).
s85(i) (Transfer of property of State - departments controlling customs and excise and bounties).
s85(ii) (Transfer of property of State - at establishment of Commonwealth).
s88 (Uniform duties of customs).
s90, 1st paragraph (Exclusive power over customs, excise and bounties - exclusive on uniformity).
s92, 1st paragraph (Trade within the Commonwealth to be free - on imposition of uniform duties).
s94 (Distriubution of surplus).
s96 (Financial assistance to States).
s97 (Audit).
s112 (States may levy charges for inspection laws).
s122 (Government of territories).
s128 (Mode of altering Constitution).

The head of state should be an Australian citizen;
As stated above: implemented in full in s59(9) of my draft "ConCon" Constitution. s59(9) refers to s34 which prescribes the qualifications of a member of the House of Representatives, which, inter alia, requires that a member must be an Australian citizen.

The head of state should be eligible to vote in an election for the Senate or House of Representatives at the time of nomination;
As stated above: implemented in full in s59(9) of my draft "ConCon" Constitution. s59(9) refers to s34 which prescribes the qualifications of a member of the House of Representatives, which, inter alia, requires that a member must be qualified to vote at elections of the House of Representatives.

The head of state should not be a member of any political party;
Implemented in full in s59(9) of my draft "ConCon" Constitution.

The head of state should be subject to the same disqualifications as set out in section 44 of the Constitution in relation to members of Parliament; and
Implemented in full in s59(9) of my draft "ConCon" Constitution.

Any future amendments to section 44 of the Constitution should also apply to the head of state.
Implemented in full in s59(9) of my draft "ConCon" Constitution. C.f. s16 which prescribes the qualifications of a senator.

Last updated 4 March 1999.

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Reference	Power of Governor-General	Section	Power of President	Section
1	Issue writs for House of Representatives elections.	ss32, 33	Unchanged for s32, but s33 requires the President to act with no advice required and with no discretion permitted.	ss32,33
2	Establish departments of State.	s64	Unchanged.	s63(1)
3	Appoint and, on address from both Houses, remove Justices of the High Court and judges of other federal courts.	s72	Unchanged. Note, however, that I have suggested as an alternative to 72(i) that the advice in respect of appointment be not of the Executive Council but of the Constitutional Council; and as an alternative to 72(ii) that the President, and not the President in Council, remove a Justice/judge. This reinforces the doctrine of the separation of powers by removing the appointment and removal of judges from the hands of a partisan Executive Government.	s72
4	Appoint members of the Inter-State Commission, if it exists.	s103	Unchanged.	s103

Reference	Power of Governor-General (Queen)	Section	Power of President	Section
18	Although it is not expressly stated, it is clear that the Queen is the Head of State; i.e., the official at the apex of the body politic.	N/A	The President is the Head of State.	s59(1)
19	Although there is no express constitutional provision for the appointment of an "Acting Governor-General", arrangements exist for the appointment of a person to act as an "Administrator".	s4	In appointing an Acting President, the situation may arise where the President may designate an Acting President. However, this situation can arise only where the Parliament has not otherwise provided; the constitutional provision is in place only to avoid a potential constitutional vacuum.	s60(1)
20	Although there is no express Constitutional provision for the conferral by the Parliament of other powers on the Governor-General, this power exists and is used.	N/A	Unchanged in practice. The Parliament may confer other powers on the President.	s61(5)
21	Although there is no express Constitutional provision therefor, the Governor-General appoints the Prime Minister.	N/A	Unchanged in practice. The President appoints the Prime Minister.	s62(1)
22	Although there is no express Constitutional provision therefor, the Governor-General conventionally may 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.	N/A	Unchanged in practice. The President may 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.	s64(1)
23	Although there is no express Constitutional provision therefor, the Governor-General conventionally may 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.	N/A	Unchanged in practice. The President may 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.	s64(2)
24	Although there is no express Constitutional provision therefor, if the Governor-General believes that the Executive Government of the Commonwealth is breaching the Constitution or is not complying with an order of a court or is persisting in other unlawful behaviour, he may, according to his discretion, dissolve the House of Representatives or dissolve the House of Representatives and dismiss the Prime Minister, and in the event of the Prime Minister being so dismissed, he may, according to his discretion, appoint as Prime Minister such other person who he 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.	N/A	Unchanged in practice. If the President believes that the Executive Government of the Commonwealth is breaching the Constitution or is not complying with an order of a court or is persisting in other unlawful behaviour, he may, according to his discretion, dissolve the House of Representatives or dissolve the House of Representatives and dismiss the Prime Minister, and in the event of the Prime Minister being so dismissed, he may, according to his discretion, appoint as Prime Minister such other person who he 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.	s64(3)
25	Although there is no express Constitutional provision therefor, the Governor-General convenes the Federal Executive Council on the advice of the Executive Government.	N/A	Similarly to s5, s65(2) contains a number of parts, which may be divided as follows: (1) The President is required, in accordance with the advice of the Prime Minister, to convene the Federal Executive Council. (2) I have deemed it appropriate for the President to acquire a discretionary power to convene the Federal Executive Council as a safeguard against a recalcitrant, mischievous Prime Minister who refuses to convene the Federal Executive Council.	s65(2)
26	Although there is no express Constitutional provision therefor, it is the traditional right of the sovereign, and by extension, of the Governor-General, to be kept fully informed concerning the general conduct of the government and to be furnished with such information as he may request, and to encourage and to warn the Executive Goverment at any time.	N/A	Unchanged in practice. It is the right of the President to be kept fully informed concerning the general conduct of the government and to be furnished with such information as he may request, and to encourage and to warn the Executive Goverment at any time.	ss65(3), 65(4)
27	N/A	N/A	The President is an ex-officio member of the Constitutional Council.	ss67A(2)
28	Although there is no express Constitutional provision therefor, the prerogative powers of the Governor-General include those to declare war, to appoint ambassadors, consuls and other diplomatic representatives, to grant reprieves and pardons, and to confer honours and titles.	N/A	The President in Council is empowered to declare war, to appoint ambassadors, consuls and other diplomatic representatives, to grant reprieves and pardons, and to confer (non-hereditary) honours and titles.	s69
29	The Australia Act provides that the Queen's representative in each State shall be the Governor, and the Constitutions of the States provide that the Governor shall be appointed by the Queen. The Australia Act provides that in so doing, the Queen acts in accordance with the acvice of the Premier.	N/A	The Head of State of a State is 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.	s110(1)
30	The Australia Act provides that the while the Queen is personally present in a State, she is not precluded from exercising any of his powers and functions in respect of the State.	N/A	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, provided that he shall do so only during the pleasure of the Governor (i.e., the Executive Government) of the State. This enables a State Government to invite the President to perform some official duty if it sees fit to do so.	s110(4)

Explanatory NotesOn My Draft "ConCon" Constitution

The ConCon Resolutions

Explanatory Notes
On My Draft "ConCon" Constitution