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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 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

Appointment or Election Procedure Dismissal Procedure Definition of Powers 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)
Qualifications for Office Term of Office 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:

The following matters be considered for inclusion in the Preamble: 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:


Last updated 4 March 1999.


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