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Submission to the Joint Select Committee on the Republic

on the Constitution Alteration (Establishment of Republic) 1999
and on the Presidential Nominations Committee Bill 1999

By Peter Crayson


Contents

1. Introduction
2. Typographical conventions
3. General comments on the Government's proposed amendments
4. Comments on Schedule 1 — Amendments of the Constitution relating to the President
5. Proposed additional amendments for Schedule 1— Amendments of the Constitution relating to the President
6. Comments on Schedule 2 — Consequential amendments of the Constitution
7. Proposed additional amendments for Schedule 2 — Consequential amendments of the Constitution
8. Comments on Schedule 3 — Transitional provisions
9. Other proposed amendments
10. Comments on the Presidential Nominations Committee Bill


1. Introduction

In this paper, I will specifically address some of the issues arising from the Government's proposals in the Constitution Alteration (Establishment of Republic) 1999 (hereafter referred to as "the Constitution Alteration") and the Presidential Nominations Committee Bill 1999 (hereafter referred to as "the Bill"), with some general comments followed by comments on each of the proposed amendments.

This paper is substantially based on the submission I made to the Government's Referendum Taskforce (sent to Mr John Doherty, Convenor, Referendum Taskforce, Department of the Prime Minister and Cabinet, 3-5 National Circuit, BARTON ACT 2600) (hereafter referred to as "the Taskforce"), with some modifications having been made to my paper to address the differences between the Referendum Taskforce's Exposure Drafts and the Bills now before the Parliament. And it is worth noting that those differences are very few in number (I counted 13, some of which are minor), so I presume that submissions made to the Taskforce (including mine) had little, if any, influence on its final recommendations to the Government.

I will specifically address some of the issues arising from the Government's proposals, with some general comments followed by comments on each of the proposed amendments.

I hereby also submit a copy of one of my draft Constitutions, which I have dubbed my "Referendum" Constitution which is based on the Constitution Alteration and the Bill, but which contains further amendments made in accordance with my recommendations in this paper.  These recommendations generally conform to the recommendations of the Constitutional Convention.  This Referendum Constitution was formally submitted to the Taskforce. I make some cross references to this draft "Referendum" Constitution throughout this paper, referring to it as "my draft Constitution"; it is accessible on my internet web site, http://members.tripod.com/~petergc.  Amendments which I have made are clearly indicated using typographical conventions, and extensive explanatory material accompanies my draft Constitution.

Please note that I had earlier submitted to the Taskforce a copy of another (similar) draft Constitution, which I dubbed my "ConCon" Constitution which conformed to the recommendations of the Constitutional Convention.  This contained provisions similar to those proposed by the Constitution Alteration and the Bill and is also accessible on my internet web site.

One of the principles which underlies my comments, criticisms and recommendations here is that if changes are to be made, one should strive to get it right the first time.  One should never be complacently content with a proposal in which there are obvious flaws — these flaws are dormant invitations to constitutional crises which will sooner or later either be exploited by unprincipled politicians, or arise unexpectedly as a result of an unlucky confluence of circumstances; and their continued existence, if advertised by opponents of the republic, may well cause the referendum to fail.  Although I have endeavoured to keep the level of verbiage of my proposed Constitutional provisions to a minimum, in order to close potentially dangerous loopholes, it has been necessary, in most cases, to provide somewhat more detail than has the Government, but no more than in comparable existing provisions or indeed in comparable Constitutions.

I would counsel against piecemeal modernisation and/or colloquialisation of the language of the Constitution; this may not only be inappropriate in the language genre of a Constitution (perhaps it is neither dignified nor befitting its importance), but it is surely inappropriate when applied to some provisions and not to others.  The style of language should be consistent throughout, and if some form of language modernisation should occur, it should be done in a thoroughgoing manner, applied to the entire document.  I would equally counsel against piecemeal conversion of the language to non gender-specific forms.  As far as the English language will allow without resort to clumsy avoidance of pronouns, or usage of "he/she" type combinations, it is well understood that the pronoun "he" is used as a generic pronoun.  If any conversion to non gender-specific language should occur, it too should be done in a thoroughgoing manner, applied to the entire document.

In order to avoid unnecessary verbiage, it should be assumed that the comments which appear in the Government's Explanatory Statements should be read in conjunction with my proposed amendments; but my comments are certainly not always in agreement therewith.


2. Typographical conventions

In my comments on each of the amendments proposed by the Government (chapters 4, 6 and 8), I will use plain text, and red italics for text I have copied from the Constitution Alteration or from the Bill, in order to clearly differentiate the two.  Specific comments and recommendations are indicated by the words "Comments:" and "Recommendation(s):".  A horizontal line has been drawn just before each clause of the Constitution Alteration and of the Bill for ease of reading.


3. General comments on the Government's proposed amendments

The reserve powers and constitutional conventions attaching to the exercise of  powers by the Governor-General and by the Governor-General in Council

Under the current constitutional arrangements, the distinction between the "Governor-General" and the "Governor-General in Council" is, in practice, rather arbitrary.  In theory, however, the Governor-General may act according to his discretion in cases where "Governor-General" is specified.

In practice, the scope of the reserve powers (whether those presently existing, or those which may in future be exercised following development either of either the reserve powers or of constitutional conventions) can only ever be limited to provisions where "Governor-General" is specified, and never where "Governor-General in Council" is specified. It is by reference to this formulation that an upper limit to the reach of the reserve powers is established. Although convention may currently dictate that in certain cases where "Governor-General" (and not "Governor-General in Council") is specified the power should not be exercised as a reserve power, the potential for the Governor-General to act according to his discretion (and thereby to effect a "development" of the reserve powers and constitutional conventions) in such cases is always extant.

Put simply, none of the powers of the "Governor-General in Council" are, or could ever evolve to become, reserve powers; but a subset of the powers of the "Governor-General" are currently, and could evolve to become, reserve powers.

Those powers of the "Governor-General in Council", which by definition are not, and can never become reserve powers, are:

Certain powers of the "Governor-General" (and not "Governor-General in Council") are generally recognised as reserve powers; namely: However, these are not necessarily the only reserve powers; the Government itself states that "There are probably [my emphasis] only four reserve powers" (Constitution Alteration Explanatory Memorandum clause 5.13) and goes on to list (in simplified form) those cited above.

Certain powers of the "Governor-General" (and not "Governor-General in Council") are perfunctory powers which the Governor-General is required to exercise (without discretion and without any need to be advised), namely:

It could be argued that the fact that, apart from those powers of the "Governor-General" (and not "Governor-General in Council") mentioned above, certain other powers have never been exercised by the Governor-General according to his discretion simply because the need for them to be exercised in such manner has not arisen; however, there is no guarantee that this need will never arise in future — thus, it is appropriate in such cases that the potential to develop the reserve powers/conventions remain.  To remove from the President the power to act according to his discretion in some such cases would be inappropriate, as it would effectively transfer more power to the Prime Minister and to the Executive Government in that it would enable them more scope to behave with impunity in an unacceptably undemocratic manner without fear of the President using his discretion to defend the democratic constitutional order.  Powers of the Governor-General which, though not generally recognised as reserve powers, could, conceivably, at any time (according to the discretion of the Governor-General or President) evolve to become reserve powers, are: Of those powers of the Governor-General specified above which, though not generally recognised as reserve powers, could at any time become reserve powers, there are cases where convention dictates that the power is never in practice exercised according to the Governor-General's discretion, and where it is generally agreed that the Governor-General should without question never be permitted to act according to his discretion.  In such cases, rather than simply specifying "the President", it would make sense to specify "the President in Council", or the "the President, acting in accordance with the advice of the Prime Minister".

Specific cases are as follows:

Possibly also the power to recommend the appropriation of moneys (section 56) could be included in the above list; however, an argument could be proffered that in an extreme case of stupidity, ineptness or irresponsibility on the part of the Executive Government proposing an appropriation of moneys to a Parliament in which its party controlled both Houses, the President would be the only effective check; of course, his exercise of this power could result in his being removed from office, but the effect on public opinion of his exercise of power would have been made with commensurate impact.

No doubts should be remain in the Constitution with respect to the scope of the reserve powers, whether that scope apply to the reserve powers as they presently exist or to the reserve powers as they may in future develop.  There should be no reason to have that scope include the Command in Chief of the armed forces, or any of the other powers mentioned above.  While there is little risk that a President would abuse his position given that the Prime Minister may summarily remove him from office without qualification, it is nevertheless prudent to make provision for these exceptional situations and to ensure that they should never arise in the first place.

In all other cases where powers and functions are conferred on the President other than expressly by the Constitution (e.g. by ordinary Act of Parliament), it should also be clearly stated that those powers and functions are exercisable only by the President in Council unless otherwise expressly provided (i.e., it may be provided that powers be exercised on the advice of the Prime Minister or another Minister).

Recommendation:
I will make specific recommendations below in my comments on your proposed amendments, but my general recommendation is that in cases where those powers identified above as inappropriately falling within the scope of reserve powers (either as they presently exist, or as they may in future develop), references to "the President" should be changed to "the President in Council", or should specify that the President shall act only in accordance with the advice of the Prime Minister, as the case may be.
 

Temporary and Transitional Provisions

I have made a particular effort in my draft Constitution to move all temporary and transitional provisions into a new Chapter, entitled "Temporary and Transitional Provisions".  This includes not only matters relating to the republic, but to all matters relating to the establishment of the Commonwealth and all remnant colonial and monarchical references.  Some of these provisions complement provisions in other chapters of the Constitution, such as my draft Constitution's section 127 (an enduring provision) which is complemented by my draft Constitution's clause 9 of Schedule II (a transitional provision).  All temporary and transitional provisions will, by definition, at some stage become spent or obsolete, and may thereupon be deleted.

Thus, the entire Constitution, read in isolation from the Chapter entitled "Temporary and Transitional Provisions", is lexicographically tidy, its provisions enduring and always relevant regardless of when it is read.   One can imagine someone fifty or a hundred years from  now reading the Constitution — if such anachronistic references were peppered throughout the text of the Constitution would tend to make the Constitution difficult to read and untidy in appearance.

It is quite a simple matter to move provisions of the Constitution without changing their meaning or effect, whilst rendering the Constitution lexicographically tidy and more easily comprehensible, especially to future generations.  After all, the Government itself has said that:

(Constitution Alteration Explanatory Memorandum clause 1.16.)

Recommendation:
I will make specific recommendations below in my comments on your proposed amendments, by my general recommendation is that rather than establishing Schedule II only to contain transitional provisions for the establishment of the republic, this section should contain all temporary and transitional provisions.  Seeing the Government has obviously decided only to remove spent provisions which relate to monarchy or to the Governor-General, other provisions which are clearly already spent could simply be moved to proposed Schedule II of the Constitution.
 

Threats to constitutional stability and the danger of constitutional vacuum

Throughout this document, I have identified a number of instances where constitutional stability could be easily threatened should the will to do so exist, and where constitutional vacuum could ensue.  If it is possible to provide a mechanism which guarantees against constitutional vacuum, then it should beyond any question be provided — rather than proclaiming, with fingers tightly crossed, that one can safely rely on the good sense of politicians to avert any such crisis.  But if it is not possible to provide a mechanism which absolutely guarantees against constitutional vacuum, then it is essential that sufficient obstacles be placed before it to at least reduce the likelihood of its ever occurring to insignificant levels.  While one might be tempted to concede that there is little risk in practice that such a case of constitutional vacuum would arise, it would be folly indeed to ignore the possibility, and prudent to make provision for these exceptional situations to ensure that they should never arise in the first place.  This I have done in respect of every such instance.

Certain recommendations I make may in respect of sections of the Constitution Alteration which fall in one of the Schedules would mean that my proposed amendment should appear in another Schedule of the Constitution Alteration; e.g., I might make a recommendation in respect of a section of the Constitution Alteration in Schedule 2 — Consequential amendments of the Constitution which would render it more appropriate for inclusion in Schedule 1 — Amendments of the Constitution relating to the President.


4. Comments on Schedule 1 — Amendments of the Constitution relating to the President

1 Section 59
Repeal the section.

Comments:
Agreed.


2 Section 60
Repeal the section.

Comments:
Agreed.


3 Sections 61, 62, 63
Repeal the sections, ...

Comments:
Agreed.


3 Sections 61, 62, 63 (continued)

substitute:

Comments:
Agreed, but the Chapter heading "Chapter II - The Executive Government" is now inappropriately positioned just before section 61.

Recommendations:
Move the Chapter heading "Chapter II - The Executive Government" from its position just before section 61 to the position just before the proposed section 59.


Comments:
The current formulation, seeming to define Federal Executive Councillors, then officers who administer departments, then  Ministers of State, and then revealing that these officers are Federal Executive Councillors and are also Ministers of State, is an unnecessarily clumsy formulation.  It would seem to make sense to simply define Ministers of State (see section 64), and rather than defining Federal Executive Councillors separately in this section, simply stating that the members of the Federal Executive Council are, ex officio, the Ministers of State for the time being.  Membership of the Federal Executive Council thus being ex officio, it is unnecessary for Ministers of State to be distinctly and separately sworn in as Federal Executive Councillors; i.e., once a person become a Minister of State, he thus ipso facto becomes a Federal Executive Councillor.

I would also codify here an express power of the Prime Minister to advise the President to convene the Federal Executive Council.  This would avoid unnecessary confrontation between the President and the Prime Minister should a mischievous President ever refuse to convene the Federal Executive Council.  But at the same time, it also enables the President to convene the Federal Executive Council at his discretion, for whatever reason — e.g., to encourage or to warn the Executive Government, or to request information concerning the general conduct of the government.

Recommendations:
Omit (from the Constitution Alteration) the Government's proposed paragraph, substitute:


Comments:
This provision deals with a matter similar to that dealt with in the proposed section 127 dealing with the definition of "the President in Council", where it is stated that "The President in Council means the President acting with the advice of the Federal Executive Council." It would seem to make more sense to deal with the exercise of the powers of the President and of the President in Council in the one place.

Notwithstanding that, there are here not two, but three instances relating to the exercise of Presidential powers. The first is the exercise of powers by the President in Council, where those powers are assigned either by the Constitution or by law. In this case, these powers can only be exercised by the President acting in accordance with the advice of the Federal Executive Council. The second is the exercise of powers by the President, where those powers are expressly assigned by the Constitution. In this case, these powers should be exercised in accordance with the constitutional conventions, which might involve the power being exercised with, without, or even contrary to, the advice of the Federal Executive Council, or of the Prime Minister, or of any other Minister of State. The third is the exercise of powers which have been conferred by law on the President (i.e., not on the "President in Council"). In this case, these powers should be exercised in accordance with the advice of the Federal Executive Council, the Prime Minister or another Minister of State as the law provides; but in the absence of such provision, (i.e., by default) it should be interpreted to mean that it should be exercised in accordance with the advice of the Executive Council.

The quite separate nature of these three instances is neglected in the proposed provision, which may result in confusion given that there may be cases where the advice of the one of the three (i.e., the Federal Executive Council, the Prime Minister or another Minister of State) is in conflict with another, or it may cause disputation over which of the three has the prevailing role in a particular instance of advising the President.  This lack of clarity is addressed in my recommendation.

Regarding references to the "Governor-General", these could more appropriately be dealt with in clause 9 of the Schedule 2 of the Constitution; such references in the body of the Constitution will appear to be anomalous in 20, 50 or 100 years, and I would suggest that the body of the Constitution should be treated as a document which stands the test of time through its relevance to future generations. I repeat here what the Government itself has said:

(Constitution Alteration Explanatory Memorandum clause 1.16.)

Recommendations:
Omit (from the Constitution Alteration) the Government's proposed paragraph, substitute:


Comments (general):
The words "the report of a committee established as the Parliament provides to invite and consider nominations for appointment as President" make provision for the nomination of candidates for the office of President, and the remainder of the words make provision for the choosing of the President.  However, details of the nomination procedure are almost entirely absent and left to ordinary legislation — a dangerous move.  Unless certain minimum conditions are established, legislation could be formulated which is quite contrary to the original intentions of the framers.  These conditions should include the specific timing of certain actions or events, the assignment of certain responsibilities to key officers, sanctions for failures to facilitate or follow constitutional processes, and of course, procedures which would avert any possibility of constitutional vacuum and avoid unnecessary tardiness in constitutional processes.  The Parliament would still retain considerable flexibility in matters regarding the shape of the committee and the determination of  the details of the nomination process.

Note that in my recommendations, I refer to the nomination committee as the "Constitutional Council".  This particular nomenclature is intended to recognise its constitutional significance and centrality of the committee in the process of choosing a President, and the fact that is an important constitutional organ which directly connects the People (from whom the legal and moral authority of the Constitution is drawn), the Constitution and the President (the person responsible for the execution and maintenance of the Constitution).  This nomenclature is also applied in the constitutiona of a number of other countries; these Constitutional Councils, though constituted for different purposes, have a similar constitutional significance.

I have attempted to introduce a stronger (i.e., stronger relative to the Government's particular implementation of the model) element of bipartisanship/non-partisanship into the process by distancing the Prime Minister from the nomination procedure.  Thus, for example, I have made the Prime Minister and the Leader of the Opposition are ex officio members of the Constitutional Council, and their approval is generally needed to approve every name entered onto the short-list of Presidential candidates.

Under the Government's proposed provisions, it would seem that there is no obligation on the Prime Minister (or others) to chose a new President, nor any guarantee that a new President would ever even be chosen — it is quite conceivable that we could end up either with an de facto permanent succession of Acting Presidents, or with the complicity of the Government, the indefinite extension of the incumbent President's tenure of the office.

Hereunder I will make a number of recommendations pertaining to this provision, each of which are preceded by comments specific to that recommendation.

Comments (on the following recommendation):
This deals briefly with the convening of the Constitutional Council, and in particular, the timing thereof.

The timing here is carefully calculated to ensure that a new President is chosen at the right time, on time and in a timely manner (allowing also for failure to achieve a two-thirds vote in the Parliament).  Thus, the process of selection of a new incoming President must begin at least sixty days before the outgoing President's term is due to end, or within ten days of it having prematurely ended.  Note especially that in the case of the removal from office of a President, in order to enable a President who has just been removed, and whose removal is not ratified, the process is delayed until the ratification vote is taken in the House of Representatives.

An "automatic" provision to convene the Constitutional Council, analogous to that used in section 5 as amended in my draft Constitution, is employed here to avoid a stall in constitutional processes.

Recommendations:
Omit the Government's proposed paragraph, substitute:

Comments (on the following recommendation):
This establishes that the Constitutional Council is to open nominations to the public, and that the short-list should contain at least three names.

Recommendations:
After the text of the previous recommendation, add:

Comments (on the following recommendation):
This deals with basic procedures for including names on the short-list.  Note that the Prime Minister and the Leader of the Opposition would sit on the Constitutional Council, and would generally need to approve every name entered onto the short-list; however, where a mischievous Prime Minister or Opposition Leader decided to abuse the constitutional order by opposing every candidate, the Constitutional Council could circumvent the problem by voting with a specified large majority to include a person without the approval of that mischievous Prime Minister or Opposition Leader.  It is in the interests of the Prime Minister and the Leader of the Opposition to participate constructively here, as by refusing to do so, he would be depriving himself of the opportunity to influence the outcome of the process.  A stall in constitutional processes, while not entirely avoidable here, can by these means at least be discouraged.

Recommendations:
After the text of the previous recommendation, add:

Comments (on the following recommendation):
This deals briefly with the delivery of the report to the Prime Minister.  As a courtesy, it is also required that a copy be delivered to the President and to the Leader of the Opposition; this is no more than a formality, however - as the President and the Leader of the Opposition both sit on the Constitutional Council, they will already be privy to the contents of the report.

This also deals with questions of timing, imposing the penalty that the Constitutional Council shall not be adjourned for more than a day at a time if it fails to produce the report within a reasonable amount of time.

Recommendations:
After the text of the previous recommendation, add:


Comments (general):
This paragraph as proposed by the Government, taken together with the following provisions of the previous paragraph: "After considering the report ..., the Prime Minister may, in a joint sitting of the members of the Senate and the House of Representatives, move that a named Australian citizen be chosen as the President."  The word "may" seems to imply that it is optional for the Prime Minister to move that the candidate be chosen as President.

Section 57 of the Constitution, which is the only other section dealing with the convening of a joint sitting for a special purpose, enters into some detail with respect to the pre-requisites and the procedures involved.  The Government's proposed provision, in stark contrast, is silent on much of this.  For example, who convenes the joint sitting, and when?  It appears that this provision might not even require a joint sitting!  There seems to be no good reason for this asymmetry in attention to detail.  My proposed alternative enters into a similar level of detail to section 57.

In the context of my proposed amendment to section 34 of the Constitution, it is completely redundant for the expressions "Australian citizen" to be used here.  The qualifications already require (according to my proposed amendment), amongst other things, that "The qualifications of the President shall be the same as those of a member of the House of Representatives from time to time", and the qualifications of a member of the House of Representatives (according to my proposed section 34) include as one of the minimum conditions that he or she must be an Australian citizen.

Comments (on the following recommendation):
This deals briefly with the convening of the joint sitting, and in particular, the timing thereof.  The purpose of the convening is expressly stated.

The timing here is carefully calculated to ensure that a new President is chosen at the right time, on time and in a timely manner (allowing also for failure to achieve a two-thirds vote in the Parliament).  Thus, the President is required to convene a joint sitting.  If he fails to do so, the automatic provisions of my proposed section 5 are activated, averting any possible stall in constitutional processes.

Recommendations:
Omit the Government's proposed paragraph, substitute:

Comments (on the following recommendation):
Unlike the Government's proposed provision, my provision requires that the Prime Minister move that move that a person be chosen as the President.

The Government's proposed provisions could be read, quite absurdly, as requiring, that a motion be moved by the Prime Minister in a joint sitting, then seconded by the Opposition Leader in the House of Representatives, and then a vote taken in a joint sitting! ("Leader of the Opposition in the House of Representatives" probably means "the member of the House of Representatives who is the Leader of the Opposition". This problem results from the failure to define the term "Leader of the Opposition, which I have addressed later.) My provision requires quite clearly that the entire procedure take place in a joint sitting - the moving by the Prime Minister, the seconding by the Leader of the Opposition, and the vote.

Recommendations:
After the text of the previous recommendation, add:

Comments (on the following recommendation):
The language of the first paragraph here follows closely some of the language of section 57.  The second paragraph specifies the procedure to be followed in case a nominated person fails to be chosen as President; this is totally absent in the Government's proposed provisions.

Recommendations:
After the text of the previous recommendation, add:

Comments (on the following recommendation):
This also deals with questions of timing, imposing the penalty that the Parliament shall not be adjourned for more than a day at a time if it fails to choose a President within a reasonable amount of time.

Recommendations:
After the text of the previous recommendation, add:

Comments (on the following recommendation):
This is where the flexibility, the filling in of the details, comes into play.  The power of the Parliament to legislate the details, and of the High Court to resolve disputes, is expressly conferred here.

Recommendations:
After the text of the previous recommendation, add:


Comments:
Analogous language pertaining to qualifications already exists in sections 16 and 43 of the Constitution.  For the sake of consistency in casual reading and in rigorous interpretation, similar language should be used here.  This effort at promoting consistency also has the fortuitous effect of simplifying the language.  Otherwise, the meaning and effect of my substituted amendment does not change the status quo.

Recommendations:
Omit the Government's proposed paragraph, substitute:


Comments:
Agreed, but add the heading "Actions of President not invalidated"

Comments:
The Government's provision leaves open the possibility of constitutional vacuum, although the probability of there being no High Court Justices is low.  Still, it is not inconceivable — a terrorist bombing, natural disaster or accident, for example, resulting in the death of all Justices would, if a President has just prior to the incident resigned, been removed from office, or died in office, and if no person were available to act as President, prevent the appointment of any further High Court Justices; thus, no oath/affirmation could be administered, and no new President or acting President could enter upon the office of President.  The result would be a constitutional vacuum.  In this case, however, it would not seem possible to provide a mechanism which guarantees absolutely against constitutional vacuum; however, it is therefore essential that sufficient obstacles be placed before the possibility of constitutional vacuum to reduce the likelihood of its ever occurring to insignificant levels.  The way I have handled this is to provide for a number of alternatives — possibly limitless! — to High Court Justices in the absence thereof.

Recommendation:
Omit the Government's proposed paragraph, substitute:


Comments:
For the sake of consistency in casual reading and in rigorous interpretation, similar language should be used here.  Otherwise, the meaning and effect of my substituted amendment does not change the status quo.

Recommendation:
Omit the Government's proposed heading and paragraph, substitute:


Comments:
For the sake of consistency in casual reading and in rigorous interpretation, similar language should be used here.  Otherwise, the meaning and effect of my substituted amendment does not change the status quo.

Recommendations:
Omit the Government's proposed paragraph, substitute:


Comments:
Agreed.

Comments:
At the apex of a republican system, in implementing checks and balances, there will inevitably be some degree of circularity.  However, despite that circularity, it is essential that some effort be made to avoid excessive concentration of powers in one person or in one institution.  This principle can also be extended to include the avoidance of concentration of roles and responsibilities.  In particular, in deference to the Westminster principle of parliamentary supremacy, efforts should be made to avoid excessive concentration of power, roles and responsibility in the Executive Government and in the Prime Minister, especially if the doctrine of the separation of powers is compromised.

For this reason, it is not (according to my proposals) the Prime Minister who initiates the convening of the Constitutional Council, nor who determines who the Acting President should be — it is the Parliament.  The convening of the Constitutional Council and the accession to the office of Acting President is not, nor should it be, determined by the Prime Minister or the Executive Government, but by the Parliament.  Thus, it would seem inconsistent for a notice of resignation to be addressed to the Prime Minister.  The President, it should be remembered, is one of the three elements which comprise the Parliament (see section 1), and is a superior of the Prime Minister.

Similarly to the resignation of a member of Parliament, I propose that the notice of resignation be addressed to one of the Presiding officers of the Parliament (the President of the Senate in the first instance, or the Speaker in the second).

The Government's provision also leaves open the possibility of constitutional vacuum, although the probability thereof is low.  Still, it is not inconceivable — suppose that at a time when there is no Prime Minister the President decides to resign, but did not appoint a Prime Minister before doing so.  Legally, the President could not resign without first appointing a new Prime Minister (as he would have nobody to deliver his notice of resignation to), so, with a President still formally in office, no person could become Acting President.  If that President simply refused to act as President, no new Prime Minister could be appointed.  The result would be a constitutional vacuum.  In this case, however, it would not seem possible to provide a mechanism which guarantees absolutely against constitutional vacuum; however, it is therefore essential that sufficient obstacles be placed before the possibility of constitutional vacuum to reduce the likelihood of its ever occurring to insignificant levels.  The way I have handled this is to provide for a number of alternatives — possibly limitless! — beginning with the President of the Senate, then the Speaker in the absence thereof, then others as may be prescribed.

While there is little risk in practice that such a case of constitutional vacuum would arise, it would be folly to ignore the possibility, and prudent to make provision for these exceptional situations to ensure that they should never arise in the first place.

This provision also should be moved to the end of section 62 of the Constitution, as sections 60 and 61 do not apply to an Acting President or to a deputy of the President; however, there is no reason why an Acting President or a deputy of the President should not also be entitled to resign from those offices.

Recommendations:
Omit the Government's proposed paragraph, add to the end of the proposed section 62 of the Constitution:


Comments:
For the sake of consistency in casual reading and in rigorous interpretation, similar language to sections 3 and 66 of the Constitution should be used here.  Otherwise, the meaning and effect of my substituted amendment does not change the status quo.

Recommendations:
Omit the Government's proposed paragraph, substitute:


Comments:
The Government's proposed provision makes no provision whatsoever for the Constitutional Convention's recommendation that the failure of the House to approve the removal from office of the President would constitute a vote of no confidence in the Prime Minister, and fails to justify this omission apart from simply stating that "the question ... is left for resolution in accordance with parliamentary processes".  This is quite inadequate and in fact enables the Prime Minister to dismiss the President free from any threat of sanction, especially since it is far less likely that the House of Representatives, in which his party or coalition of parties will almost certainly have a majority, would pass a separate, explicit vote of no-confidence after rejecting the dismissal of the President than it would if the vote rejecting the dismissal of the President also implied loss of confidence in the Prime Minister.  Thus, the Prime Minister actually acquires extraordinary power, much more than he has at present — with a consequent shift in the inherent checks and balances in constitutional processes.  Currently, he must first seek the approval of the Queen to dismiss a Governor-General, the major disincentive being that the Prime Minister is faced with some time delay, whereas the Governor-General's dismissal of the Prime Minister is immediate.  The disincentive in the Government's proposed provision is, by comparison, minimal, if not negligible.  It is absolutely essential that the extent of the disincentive to dismiss, of whatever form, be at least equivalent to the disincentive to dismiss which currently obtains.

A vote of no confidence in the Prime Minister — a fundamental aspect of the Westminster system even though it may be rarely or never used (usually due to the rigidity and discipline of the two major party groupings) normally constitutes a vote of no confidence in the Government, which is bound, by convention, to resign.  The President or Acting President of the time may exercise a reserve power in such circumstances to remove the Prime Minister from office if he refuses to resign.

The language I have used here draws on the language of my paragraphs (ii) and (iii) of the procedure for choosing the President in section 60 of my draft Constitution, and of the existing section 57 of the Constitution.

Recommendations:
Omit the Government's proposed paragraph, substitute:


Comments:
This is an extremely dangerous provision.

The constitutional model arising from the Constitutional Convention leaves the constitutional arrangements of a State up to a State.  Thus, a State may retain the monarch as its head of state, or it may adopt (by default according to my proposals, or by positive action according to the Government's proposals) a republican form of government.  There is no restriction on what form of republican government each State may adopt.  A State may, for example, abolish the office of Governor and have the powers of the Governor exercised by the Speaker.  Or, it may adopt a type of executive presidential system, with the position of Premier abolished and combined with that of a popularly elected Governor (much like American States).  Or, it might institute popular election of the Governor and (inadvertently or deliberately) end up with a political figure as Governor.  Or, a State may retain a monarchical form of government, resulting in the anomalous and absurd situation of its Governor acting as President but still subordinate to the Queen, and subject to removal from the office of Governor by the Queen, with such removal possibly also resulting in removal from office as Acting President! .  Many outcomes could be countenanced, but here is just a few scenarios to consider:

Scenario (1):  There is no legislation in force in respect of an acting President.  State XYZ has modified its constitutional arrangements to provide for a popularly elected, executive Governor which combines the former offices of Governor and Premier.  The office of President falls vacant, and the most senior State Governor, who happens to be the Governor of State XYZ, automatically assumes office as Acting President and immediately dismisses the Prime Minister (before the Prime Minister can dismiss him), who is his political rival.  The Acting President finds a compliant accomplice in the person of the Opposition Leader, whom he appoints as Prime Minister.  Constitutional crisis ensues.

Scenario (2):  A party has a majority in both Houses of Parliament.  The Parliament provides otherwise, specifying that the Prime Minister may appoint whomever he pleases to be Acting President, which he subsequently does after dismissing the incumbent President.  The Prime Minister fails to initiate or carry through the processes to choose a new President, but rather appoints whomever he pleases to be Acting President indefinitely.  The Acting President, an accomplice of the Prime Minister, refuses to take any punitive action against the Prime Minister.

Scenario (3):  The Parliament provides otherwise, but the legislation is flawed to the extent that it becomes impossible to appoint an Acting President.  As no acting President can be appointed, the law cannot be corrected to provide for an alternative means of appointing an Acting President (as laws could not be assented to), and the constitutional processes of the Commonwealth would progressively disintegrate.  (E.g., a new President could never be chosen if the Parliament is not in session, a new Prime Minister could never be appointed, the Parliament could not be summoned, and laws could not be assented to.)  A constitutional vacuum ensues, with unpredictable consequences.

Other scenarios which are also applicable to this provision are presented in my comments to the Government's proposed section 5 of the Constitution.

The provision also ignores the procedure for determining the point at which the President would be legally recognised as being incapacitated.  It is impossible to provide a foolproof method here, but to reduce the possibility of constitutional vacuum, I propose that he would be so recognised on declaration of the same by any one of a number of prescribed officers, including the President himself, the Prime Minister, the President of the Senate, the Speaker, and such others as may be prescribed, and to further prevent abuse of this power, the President may at any time declare that he is not incapacitated, and disputes may be resolved by the High Court.

While there is little risk in practice that these scenarios could ever become reality, it would be folly to ignore the possibility, and prudent to make provision for these exceptional situations to ensure that they should never arise in the first place.

I propose that the convention of appointing the most senior State Governor as Acting President not be constitutionally entrenched.  Instead, I propose that a list of officers be constitutionally entrenched as a default case, with the Parliament empowered to specify other officers, and the Parliament may, if it thinks fit, provide in this way for the most senior State Governor to act as President.

In this case, however, it would not seem possible to provide a mechanism which guarantees absolutely against constitutional vacuum; it is therefore essential that sufficient obstacles be placed before the possibility of constitutional vacuum to reduce the likelihood of its ever occurring to insignificant levels.  The way I have handled this is to provide that the Parliament be given the option of providing for a Vice President - but only if it thinks fit to do so - and that a list of officers be used to determine who would assume the office of Acting President.  The list is effectively limitless — the Parliament, and/or the President, may add to the list as they see fit.

Consistent with the Westminster principle of parliamentary supremacy, avoiding any tendency towards excessive concentration of power, roles and responsibility in the Executive Government and in the Prime Minister, the Prime Minister does not have, nor should he have, any direct role in the appointment of, or in the rules of accession relating to, an Acting President.

As the roles of Acting President and deputy of the President are distinct, I have separated the provisions relating to each into two parts, each with an appropriate heading.

Recommendations:
Omit the Government's proposed paragraph, substitute:


Comments:
Agreed, but as in the existing section 4 of the Constitution, there should be a proscription against the receipt of remuneration from the Commonwealth in respect of any other office.

Recommendations:
Before the Government's proposed paragraph, add:


Comments:
The role of deputies of the Governor-General/President is distinct from that of Administrator/Acting President.  As deputies may exercise executive powers, the Prime Minister should be able to limit  or give directions regarding the powers and functions of the deputies.

Furthermore, a significant problem may arise with the "Until the Parliament otherwise provides" formulation as once the Parliament legislates, the effect of this provision is extinguished — probably never to be revived — with unpredictable and probably undesirable consequences.

Recommendations:
Omit the Government's proposed paragraph, substitute:


Comments:
This has been moved up under the heading "Acting President" and an amended.  Note that I refer here to the separate oath/affirmation of allegiance and the oath/affirmation of office, as I proposed in respect of the Government's proposed Schedule 1.

Recommendations:
Omit (from the Constitution Alteration) the Government's proposed paragraph.


Comments:
The Government's proposed provision ignores the restrictions which presently obtain in respect of deputies of the President, and which are specified in the Letters Patent relating to the office of Governor-General.  These Letters Patent, of course, will cease to have any legal effect when the office of Governor-General ceases to exist.  These restrictions should be incorporated if the status quo is to be maintained.

Recommendations:
Omit (from the Constitution Alteration) the Government's proposed paragraph, substitute:


Comments:
For the sake of consistency in casual reading and in rigorous interpretation, similar language to sections 3, 63 and 66 of my draft Constitution should be used here.  Otherwise, the meaning and effect of my substituted amendment does not change the status quo.

Recommendations:
Omit the Government's proposed paragraph, substitute:


4 At the end of Chapter II

Add, in Chapter II:

Comments:
It seems to me that a separate section is unnecessary.  Relying on my definition of "the Crown" which I have proposed be inserted in the new section 127 proposed by the Government,  the continuation of the prerogatives, preferences, immunities and rights deriving from the royal prerogative can be expressed within the Government's proposed section 59.  If further clarification of the continuation of the prerogative in the transition to a republic is required, then, as a transitional provision, it should be located in the proposed Schedule II, and not in the body of the Constitution. Here again, the question of ephemeral relevance and the ability of the Constitution to endure the test of time arises.   The difference between "the Crown" when referring to an individual personage and "the Crown" as a collective entity is dealt with in the definition in the proposed section 127, and is sufficiently clear to distinguish, without needing to make specific separate mention, between the prerogatives of "the Crown in right of the Commonwealth"/"the Commonwealth" and of "the Governor-General"/"the President" — this distinction may be somewhat artificial or blurred, and making separate provision may introduce unnecessary complication.  However, if it is the view of the Government that the distinction needs to be made, it is clearly a transitional provision — and accordingly, it should be placed in Schedule II—Transitional and Temporary Provisions.

Furthermore, a significant problem may arise with the "Until the Parliament otherwise provides" formulation as once the Parliament legislates, the effect of this provision is extinguished — probably never to be revived — with unpredictable and probably undesirable consequences.

Recommendations:
After the first paragraph of the Government's proposed section 59 of the Constitution, add:

In Schedule II, add a new clause:

5 Schedule

Repeal the Schedule, substitute:

Comments:
The ConCon recommended that the President should take both an oath (or affirmation) of allegiance and an oath (or affirmation) of office.  The oath of allegiance would apply to members of Parliament and to the President (and may possibly be extended to apply to other offices), whilst the oath of office, in addition to the oath of allegiance, would apply only to the President (or to an Acting President).  Since the language of the Government's proposed oath of office completely incorporates the language of the oath of allegiance, the spirit of the ConCon recommendation is respected. However, it is curious - and indeed surprising - that rather than having the President's oath of office actually refer to that office, instead, it incorporates to respect of rights and liberties and to serving the people without fear or favour - commitments which, surely, should equally be made by members of Parliament! I would suggest instead that something similar to the proposed Presidential oath of office actually be used for the oath of allegience, and that something similar to the proposed Presidential oath of office be modified to refer expressly to the office of President. The Presidential oath of office could easily be adapted to apply to any high office should the need arise, simply by substituting "President of the Commonwealth of Australia" with the title of the other office.

Another surprising omission is that there is no provision for the person taking the oath to include his or her name within the oath! I would suggest that allowing for the inclusion of a name strengthens the connection of the oath with the person taking the oath. It is a very simple matter to include the person's name.

I would suggest that, in order to highlight its significance, the word "people" be capitalised.  As a minor typographical alteration, I would suggest that, for the sake of consistency with the chapter headings, Roman, rather than Hindu-Arabic, numerals be used to designate the schedules; namely, Schedule I and Schedule II.

Recommendations:
Change "Schedule 1" to "Schedule I" and "Schedule 2" to "Schedule II".

Also, change:

to: For more inspirational language, adopt the language employed in Schedule I of my draft Constitution as follows:

5. Proposed additional amendments for Schedule 1 — Amendments of the Constitution relating to the President

Comments:
This enables the Parliament to provide for a Vice President, who effectively is a person holding a dormant commission to act as President, if it thinks fit to do so.  If it does not so provide, there is no Vice President.  This simply enables the Parliament to provide for a Vice President at any time in the future should it be found to be necessary or desirable; as this is difficult to anticipate, it make sense to enable Parliament to provide for a Vice President rather than to take the issue to referendum.  It is conceivable that the office of Vice President would make a good testing ground for a person who might wish to become, or might be seen to be appropriate as becoming, a future President.

Recommendation:
Add the following section to the Constitution Alteration.

6 Section 63A
Add:


Comments:
This sets up a minimal framework for the Constitutional Council, which is the committee which nominates candidates for the office of President.  I recommend that such a minimal framework be specified so as to prevent the Parliament from legislating, at some time in the future, to provide for a model which may be completely contrary to the intentions of the recommendations of the Constitutional Convention.  The framework I recommend is substantially similar to the essential components proposed in the Exposure Draft of the Presidential Nominations Committee Bill 1999.  I will comment more extensively on this in Chapter 10 of this paper entitled "Comments on the Presidential Nominations Committee Bill".

Recommendation:
Add the following section to the Constitution Alteration.

7 Section 67A, at the beginning of Part V
Add:


6. Comments on Schedule 2 — Consequential amendments of the Constitution

1 Table of contents

Omit "The Schedule", substitute:

Comments:
Rather than "Schedule 2—Transitional provisions for the establishment of the republic", I would suggest "Schedule II—Transitional and Temporary Provisions" into which could be placed all transitional or temporary provisions which either do or do not relate to the establishment of the republic.  This way, the rest of the Constitution is lexicographically tidy, and reads cleanly, with provisions remaining relevant indefinitely.  For example, rather than provide in numerous cases throughout the Chapters of the Constitution that "Until the Parliament otherwise provides, ABC" (the effect of which is simply the conferral of power once Parliament does otherwise provide), I would suggest that such provisions provide only for the conferral of power, with a kindred provision in this Schedule providing for some temporary arrangement of "ABC" (i.e., until Parliament does in fact otherwise provide).  Alternatively, such provisions, rather than specifying that "Until the Parliament otherwise provides, ABC", specify "Unless the Parliament otherwise provides, ABC": i.e., the provision applies in the absence of Parliament otherwise providing, but, instead of having temporary effect, such a provision would be reactivated were Parliament ever to repeal its provision, averting a constitutional vacuum.

I also propose certain typographical alterations, including that Roman numerals be used (consistent with chapter headings), and that words be capitalised (also consistent with chapter headings).

I will comment at greater length on this at the point where the proposed Schedule II is discussed in detail in this document.


2 Section 1

Omit "Queen", substitute "President".

Comments:
Agreed.


3 Sections 2, 3 and 4

Repeal the sections.

Comments:
Agreed.


4 Sections 5, 7 and 15

Omit "Governor-General", substitute "President".

Comments:
In respect of section 7 and 15, agreed.

However, in respect of section 5, see my general comments near the beginning of this document.

The powers of the President under this session, being powers of the "President" rather than of the "President in Council", fall within the scope of potential future development of the reserve powers.  These powers include:

It is my view that: I propose that these principles be clearly expressed in this provision.

Let me give some examples (not an exhaustive list) of the chaos that might potentially result if my recommendations are not heeded:

Scenario (1):  There is legislation in force in respect of an acting President which has rendered the effect of the Government's recommendation that the most senior State Governor take office as Acting President dead, apart from its effect to confer power to provide otherwise.  A mischievous government with a majority in both Houses repeals this legislation, and the Prime Minister subsequently advises the President to prorogue Parliament.  The Prime Minister then dismisses President without explanation.  Parliament cannot be summoned to meet, as there is no President and can be no acting President.  A constitutional vacuum ensues, with unpredictable consequences.

Scenario (2):  There is no legislation in force in respect of an acting President.  The most senior State Governor therefore takes office as acting President should the need arise.  A mischievous Prime Minister advises the President to prorogue the Parliament, which he does.  The Prime Minister prepares a dismissal notice for the President and for all State Governors and arranges the notices dismissing the State Governors in order of the seniority of the State Governors.  He then signs the dismissal notice for the President (whereupon the most senior State Governor immediately takes office as Acting President) and proceeds to sign each notice dismissing each of the State Governors at the instant that each takes office.  Parliament cannot be summoned to meet, as there is no President and can be no acting President.  A constitutional vacuum ensues, with unpredictable consequences.

Scenario (3):  Take either scenario (1) or scenario (2) above.  If the Prime Minister, instead of advising that the Parliament be prorogued, advises that the Parliament be dissolved, or that the House of Representatives be dissolved, and during the ensuing period constitutional the Prime Minister remains in office, after the expiration of three months, the Prime Minister and all Ministers will automatically cease to hold office (according to an interpretation of section 64).  The country will be left without a President, without an Executive Government, and without a House of Representatives or even without a Parliament.

While there is little risk in practice that the Prime Minister or an Executive Government would abuse their power in this manner, it would be folly to ignore the possibility, and prudent to make provision for these exceptional situations to ensure that they should never arise in the first place.  As the only means of restoring some semblance of government under such circumstances of constitutional vacuum would be by unconstitutional means, opportunistic individuals who do not have the best interests of democracy at heart might take advantage of the situation to attain power with undesirable and completely unpredictable results.

I propose that the President be required to act when

Recommendations:
Repeal section 5, substitute:


5 Section 17 (heading)

Add at the end "of the Senate".

Comments:
Agreed.


6 Section 17

After "President" (second, third and fourth occurring), insert "of the Senate".

Comments:
Agreed.


7 Section 17

Omit "Governor-General", substitute "President of the Commonwealth".

Comments:
Agreed.


8 Section 18 (heading)

Add at the end "of the Senate".

Comments:
Agreed.


9 Section 18

After "President", insert "of the Senate".

Comments:
Agreed.


10 Section 19

Omit "to the President, or to the Governor-General if there is no President or if the President", substitute "to the President of the Senate, or to the President of the Commonwealth if there is no President of the Senate or if the President of the Senate".

Comments:
Agreed.


11 Section 21

Omit "the President, or if there is no President or if the President is absent from the Commonwealth the Governor-General", substitute "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 President of the Commonwealth".

Comments:
Agreed.


12 Section 23

After "President", insert "of the Senate".

Comments:
Agreed.


13 Section 28

Omit "Governor-General", substitute "President".

Comments:
This provision is redundant in so far as it is simply a confirmation of, or repetition of, powers already defined in other provisions of the Constitution.  One such provision in the current Constitution, and also under the Government's proposed amendment, and also under my proposed amendment (see my comments on clause 4 of Schedule 2 of the Constitution Alteration), is section 5, and I propose another provision be included dealing with the reserve powers of the President to dissolve the House of Representatives, which I will discuss further in relation to provisions in respect of the removal from office of the Prime Minister.

By having this provision simply make reference to the other provisions, it is not necessary to repeat those provisions, or any changes made to those provisions, in this provision.

Recommendation:
Omit "but may be sooner dissolved by the Governor-General", substitute "unless sooner dissolved by the President in accordance with this Constitution".  The section would then read as follows:


14 Sections 32 and 33

Omit "Governor-General in Council", substitute "President in Council".

Comments:
In so far as this section obliges the Governor-General in Council to act, the role of the advice of the Federal Executive Council is redundant.  Should it refer to the "Governor-General" rather than to the "Governor-General in Council", there would be no reason why the Governor-General should be any more or less likely to fulfil this obligation.

Furthermore, by removing spent provisions, this section can be rendered more lexicographically tidy.

Recommendation:
Repeal section 32, substitute:


15 Paragraph 34(ii)

Repeal the paragraph, substitute:

Comments:
Amending this section is, apart from being cosmetic, actually of no effect!  The section begins with "Until the Parliament otherwise provides", and Parliament has already otherwise provided.  The specific provisions of this section are now dead — the effect of this section is now no more than to provide for the conferral of the power to thus legislate.

I suggest that this be reworded not only to continue to provide for the conferral of power to thus legislate (as the Government has already seen fit to do in its proposed section 66 of the Constitution), but also to enshrine certain key minimum prescriptions which, as they are already thus legislated, would actually not alter the existing legal regime.

The apparent attempt also to render the language non-sexist sits poorly in the context of the rest of the section, and of the Constitution — even the previous paragraph employs the generic pronoun "he".  I would suggest that, while not questioning its merits, the task of removing what some perceive to be sexist language be left to some later time.

Recommendation:
Repeal the section, substitute:


16 Sections 35, 37 and 42

Omit "Governor-General", substitute "President".

Comments:
Agreed.


17 Section 42

Omit "the schedule", substitute "Schedule 1".

Comments:
Agreed, but use Roman numerals instead of Hindu-Arabic numerals.

Recommendation:
Omit (from the Constitution Alteration) "Schedule 1", substitute "Schedule I".


18 Paragraph 44(iv)

Repeal the paragraph, substitute:

Comments:
There is no need to remove references to "the Crown"  — see my comments on the proposed section 127.

Recommendation:
Omit clause 18 from the Constitution Alteration; i.e. do not repeal or substitute the paragraph in the Constitution.  Define the Crown in the proposed section 127 — see my comments on the proposed section 127.


19 Section 44

Omit "Queen's" (first and second occurring).

Comments:
Agreed.


20 Section 44

Omit "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,".

Comments:
Agreed, but also modernise certain references to the military forces.

Recommendation:
Omit "naval or military" from section 44 of the Constitution, substitute "military".


21 Sections 56 and 57

Omit "Governor-General" (wherever occurring), substitute "President".

Comments:
Agreed.


22 Section 57

Omit "for the Queen's assent", substitute "for assent".

Comments:
Agreed.


23 Section 58

Repeal the section, substitute:

Comments:
Agreed.

24 Section 64

Repeal the section, substitute:

Comments:
The Government fails to take the opportunity to have the Constitution simply state who the Prime Minister and the Leader of the Opposition are, even though they are otherwise mentioned in various proposed provisions.

Additionally, the Government fails to take the opportunity to have the Constitution codify certain conventions regarding the appointment of the Prime Minister.  It is possible to do so without unnecessarily restricting the discretionary powers of the President, but a clear abuse of that discretion can be averted by enabling the House of Representatives to declare that a person other than that appointed by the President as Prime Minister commands the confidence of the House of Representatives, in which case the President would be bound to appoint that person.

If these powers are not codified, they could be abused; some examples follow:

Scenario (1):  There is no Prime Minister (either due to the death or resignation of a Prime Minister), and the President refuses to appoint a new Prime Minister.  The President then appoints his own Ministers (but not a Prime Minister) and exercises whatever powers of the office he is able to under the circumstances.  As there is no Prime Minister, the President cannot be removed from office.  He may appoint a ???colluder/co-conspirator (either inside or outside Parliament) to be Prime Minister if needs be, but may terminate the commission at the instant the desired power has been exercised.

Scenario (2):  The President may defy convention and appoint as Prime Minister a person who does not command the confidence of the House of Representatives.  He may appoint a ???colluder/co-conspirator who may have privately agreed with the President not to dismiss the President in return for the appointment, and the two may act in concert to abuse the power of their offices.

Recommendation:
Omit the Government's proposed section, substitute:


25 Section 65

Omit "Governor-General", substitute "President".

Comments:
This section, and section 66 as amended, could be combined and reworded to compliment my proposed section 59.  This not only ends the unusually dual nature of the offices of Federal Executive Councillor and Minister of State (see my comments to section 3 of Schedule 1 of the legislation dealing with amendments to section 59) but takes the opportunity to codify certain conventions relating to the appointment of Ministers, the determination of their portfolios, and the number of Ministers.  The meaning and effect of my substituted amendment does not change the status quo.

Recommendation:
Omit section 65, substitute:


26 Section 66

Repeal the section, substitute:

Comments:
Agreed, except that I would include this (slightly reworded) in my proposed section 65 (see my comments and recommendations in respect of the Government's proposed section 65 in clause 25 of the Constitution Alteration), and I would use the word "remuneration" to be consistent with the terminology employed in the proposed section 61.

It is particularly noteworthy that the Government has decided here to transform an "until the Parliament otherwise provides" type provision, which establishes initial default provisions and provides for the conferral of power, into a provision which simply provides for the conferral of power.  I have advocated this in respect of a number of other provisions, and in some cases have also specified minimum conditions which apply at all times (e.g., my proposed amendment in this document to section 34) or default conditions which come into effect whenever the Parliament has not, or ceases to, otherwise provide (effected simply by using the word "unless" instead of the word "until").

In place of this provision in section 66, I propose that a provision be insert with codifies some of the reserve powers of the President to dismiss the Prime Minister and to dissolve, or refuse to dissolve, the Prime Minister.

Recommendation:
Omit the Government's proposed paragraph, substitute:


27 Section 67

Omit "Governor-General in Council" (wherever occurring), substitute "President in Council".

Comments:
Agreed.  Rather than retaining this as an "until the Parliament otherwise provides" type provision, which establishes initial default provisions and provides for the conferral of power, I would transform this section into one which establishes default conditions which come into effect whenever the Parliament has not, or ceases to, otherwise provide, effected simply by using the word "unless" instead of the word "until".

Recommendation:
Omit "Until" from section 67 of the Constitution, substitute "Unless".


28 Section 68

Omit "the Governor-General as the Queen's representative", substitute "the President".

Comments:
The powers of the President under this session, being powers of the "President" rather than of the "President in Council", fall within the scope of potential future development of the reserve powers.  The ability of the President (according to his discretion) to expand the scope of the reserve powers to include the exercise the Command in Chief of the military forces in addition to those occasions when so advised by the Executive Government is completely inappropriate.

I would also reorganise the language to modernise certain references and to render it more lexicographically tidy.

Recommendation:
Repeal the section of the Constitution, substitute:


29 Section 69

Omit "by the Governor-General".

Comments:
Given that this section is spent, it is a pity that the Government has decided simply to amend the section by deleting a reference to the Governor-General rather than to maintain the provision of the Exposure Draft, which provided that the section be repealed.

This would have been a convenient point in the Constitution to insert a non-exhaustive codification of the the powers of the President in Council deriving from the prerogative, such as I recommend below.

Recommendation:
Repeal section 69 of the Constitution, substitute:


30 Section 70 (heading)

Repeal the heading, substitute:

Comments:
The proposed amendment itself is agreed to.  However, this is clearly a transitional provision, and for the sake of lexicographical tidiness and consistency, it should be moved — without diminishing or altering its effect — to Schedule II—Temporary and transitional provisions.

Recommendation:
Move this section of the Constitution to Schedule II—Temporary and transitional provisions.


31 At the end of section 70

Add:

Comments:
The amendment itself is agreed to. However, this is clearly a transitional provision, and for the sake of lexicographical tidiness and consistency, it should be moved — without diminishing or altering its effect — to Schedule II—Temporary and transitional provisions.

Recommendation:
Move this section of the Constitution to Schedule II—Temporary and transitional provisions.


32 Section 72

Omit "Governor-General" (wherever occurring), substitute "President".

Comments:
Agreed.  However, the paragraph reading

is clearly a transitional provision, and for the sake of lexicographical tidiness and consistency, it should be moved — without diminishing or altering its effect — to Schedule II—Temporary and transitional provisions.

Recommendation:
Omit (from the Constitution) the paragraph reading "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." and add to Schedule II—Temporary and Transitional Provisions:


33 Section 73

Repeal the last sentence, substitute:

Comments:
Agreed. However, note also the following:

The reference to the Privy Council in paragraph 73(ii), which reads:

limits the courts from which appeals may be made to the High Court.  Omitting this provision could open the door to appeals from other courts which would not otherwise have been permitted.  However, this can be limited by legislation in accordance with the words as the beginning of the section, which provide that: Such legislative provision could not only ensure that the status quo remains unchanged, but that additional flexibility would be available should the Parliament so desire to take advantage of it.

Recommendation:
In Paragraph 73(ii) of the Constitution: omit:

Comments:
Make also the following amendment:

From:

references to the Privy Council should be removed.  Though this would broaden the scope of appeals which the High Court cannot be prevented by Parliament from hearing, it is nevertheless entitled by dint of its own authority to refuse leave to hear such cases.

Recommendation:
Omit from the paragraph of section 73 of the Constitution quoted above:


34 Section 74

Repeal the section.

Comments:
Agreed.


35 Section 83

Repeal the second sentence.

Comments:
Agreed.


36 Paragraph 85(i)

Repeal the paragraph, substitute:

Comments:
Agreed. However, make the recommended amendment to 85(ii), which has the effect of making acquisition of State property subject not to the law which was in force at the establishment of the Commonwealth, but to the law which is in force at the time of the acquisition.

Recommendation:
In paragraph 85(ii) of the Constitution, omit:

and substitute:

37 Section 103

Omit "Governor-General in Council" (wherever occurring), substitute "President in Council".

Comments:
Agreed.


38 Section 117

Omit "A subject of the Queen", substitute "An Australian citizen".

Comments:
Agreed.


39 Section 117

Omit "a subject of the Queen", substitute "an Australian citizen".

Comments:
Agreed.


40 Section 122

Omit "by the Queen".

Comments:
Agreed, but also define the term "Territory of the Commonwealth", without change of meaning or effect, simply in order to distinguish this usage of the term "territory" from other instances of its usage (e.g. in sections 104, 123 and 124) and any possible future usage (e.g. to use, wherever necessary, instead of the term "Colony"), and to eliminate all possibility of ambiguity.

Recommendation:
Add at the end of section 122 of the Constitution:


41 Section 126

Repeal the section, substitute:

Comments:
Agreed.

Comments:
I agree with the proposed section 126 and, in the proposed section 127, the definitions of "the Commonwealth", "the original States", "the State". Other aspects of the proposed section 127 are discussed below.

Regarding "Australian citizen":
It is curious that powers of the Parliament to legislate with respect to citizenship are simply implied by a definition when adding this explicitly as a head of power in section 51 would have left no doubt, and would also have obviated the need for a separate definition! I would place the definition of "the original States" just before that of "the State", as the two are obviously closely related.

Regarding "the President in Council":
The definition of "the President in Council" should be modified slightly to state more clearly that the President in such cases is obliged to act not simply "with" the advice of the Federal Executive Council but "in accordance with" its advice, which unambiguously ensure that it can be construed in no other way. Why be content to leave a provision ambiguous when it can so easily be rendered unambiguous?

This definition of the President in Council should be read in conjunction with my draft Constitution's section 59, under the heading "Exercise of Presidential Powers". As I proposed in my general comments toward the beginning of this document, the respective roles of the President and of the President in Council should be clearly delineated so as to in turn clearly define the scope of the future development (if any) of the reserve powers/conventions.  References to the President in Council, or to the President acting only in accordance with the advice of the Prime Minister or of another Minister, can never fall within the scope of existing or possible future reserve powers/conventions, whereas references to the President, conceivably, can.

Regarding "the Crown":
I question the need to remove references to "the Crown" from the Constitution; in fact, apparently inconsistently, some references are retained, whilst it is proposed that others be removed.  The term will continue to be used in certain circumstances, though under a republican system of government, it clearly does not refer to the monarch, but to the state (in the sense of the system of civil rule and government), and its continued use is not necessarily antithetical to a republican system.  This, of course, includes not only the Executive Government of the Commonwealth, a State or a Territory, but also the Judicature and other organs such as the Inter-State Commission and local government.  Alternatives to the term "Crown" (such as "the Commonwealth, the States and the Territories) tend to be clumsy and cumbersome phrases, and may well not be identical in meaning.  For historical as well as practical reasons, it would seem to make more sense to continue to use the term Crown, and to define its meaning — such a definition would then also cover references to the Crown in legislation.

It is worth noting that the terms "Crown" and "State" are ambiguous.  In the first instance, the term "Crown", when it refers to an individual personage, refers to the Head of State, whereas in the second instance, it means the relatively impersonal 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") whereas 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") — in fact, it is the same as the second meaning of "Crown".  As long as these ambiguities exist, there will be some unavoidable 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 a term such as "Union" (used in the United States and in India) or "State" (2nd meaning). If replaced by the term "State" (2nd meaning), in order to avoid ambiguity with the 1st meaning of "State", it might be desirable to replace 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 by references to the President.  The Indian Constitution uses the term "State" with both meanings. However, references to the "Crown" in law and in conventional usage are ubiquitous, and retention of the current terminologies, if nothing more, is convenient. If express references to the monarch need to be made in the Consitution, it would be sufficient to use the word "Queen", as is already done in many instances throughout the Constitution.

Regarding "reserve power":
The term "reserve power" has been introduced for the first time into the Constitution with no definition; however, it is easy to define, and for the sake of clarity, should be defined. Recommendation:
In Schedule 2 of the Bill, add a new section:

Recommendation:
In proposed Schedule II of the Constitution, at the end of clause 8, add: Recommendation:
Between the words "acting" and "with" in the proposed section 127, insert the words "only in accordance". The paragraph would then read as follows: Recommendation:
After the paragraph defining "the President in Council", add the following paragraphs:

42 Section 128

Omit "Governor-General" (wherever occurring), substitute "President".

Comments:
Agreed.

Also, in accordance with the my recommendation to the Government's proposed amendment to section 122 in Schedule 2, clause 40 of the Constitution Alteration, I would employ the term "Territory of the Commonwealth" instead of the term "Territory", without change of meaning or effect, simply in order to eliminate all possibility of ambiguity.

Recommendation:
Omit (from section 128 of the Constitution) "Territory" (wherever occurring) and substitute "Territory of the Commonwealth"


43 Section 128

Omit "the Queen's".

Comments:
Agreed.


7. Proposed additional amendments for Schedule 2 — Consequential amendments of the Constitution

General Comments:
Though the Government has decided only to deal with spent and obsolete provisions which pertain to the Queen or to the Governor-General, I have dealt with all such provisions.  It makes no difference in practice to the republic (nor to anything else) whether any of these are or are not adopted, as the current situation is preserved, but I would suggest that the opportunity should be taken to tidy the Constitution up in a more consistent manner, ensuring that it is more accessible to ordinary people and that it appears relevant to future generations.

Comments (on the following recommendation):
Most of the Covering Clauses are spent, obsolete or redundant.  I propose that those which are spent, obsolete or redundant be repealed, and that those which may have some continuing effect be moved to Schedule II—Transitional and Temporary Provisions.

Recommendation:
Add a section to the effect of the following to the Constitution Alteration.

Covering clauses 2, 3, 4, 5, 6, 7, 8
Move covering clauses 7 and 8 to Schedule II—Transitional and Temporary Provisions, and repeal covering clauses 2, 3, 4, 5 and 6.

Comments (on the following recommendation):
These provisions confer powers on the Parliament to legislate with respect to certain matters, but also include provisions which are spent.  I propose that spent provisions be removed and that the provisions be reworded, wherever necessary, but so that they shall convey an identical meaning.

Recommendation:
Add a section to the effect of the following to the Constitution Alteration.

Sections 10, 13, 29, 30, 31, 88, 90 (first sentence), 92 (first sentence), 94, 96, 97, 112
Amend to remove spent provisions and to provide for the conferral of the power to legislate or for limitations to powers, as the case may be.  Amend as per my draft Constitution.

Comments (on the following recommendation):
This change simply reflects the amendment to the body of the section.

Recommendation:
Add a section to the effect of the following to the Constitution Alteration.

Sections 31 (heading)
Omit the heading, substitute "Method of election of members"

Comments (on the following recommendation):
These provisions are wholly spent, obsolete or outmoded, and I propose that they be repealed.

Recommendation:
Add a section to the effect of the following to the Constitution Alteration.

Sections 7 (2nd paragraph), 15 (4th paragraph et seq.), 25, 26, 84 (last paragraph), 86, 87, 89, 90 (second sentence), 92 (second sentence), 93, 95, 125 (last sentence)
Spent, obsolete and outmoded provisions.  Repeal the provisions.

Comments (on the following recommendation):
Certain provisions of the Constitution make provision unless the Parliament otherwise provides.  As the Government has indicated in respect of section 34, if the Parliament were to otherwise provide but then repeal such legislation, the "default" provisions of the section would probably revive.  In such cases, I have substituted the word "unless" instead of "until" in order to more clearly indicate that this is the case.

Recommendation:
Add a section to the effect of the following to the Constitution Alteration.

Sections 46, 47, 48, 51(xxxvi), 52(ii)
Other consequential amendments.  Amend as per my draft Constitution.

Comments (on the following recommendation):
Certain provisions use language which is vague or outmoded, and I propose that these be clarified or that the language be modernised, as the case may be.  Namely:

Recommendation:
Add a section to the effect of the following to the Constitution Alteration.

Sections 41, 46, 48, 51(vi), 51(xxxviii), 52(ii), 71, 75(ii)
Other consequential amendments.  Amend as per my draft Constitution.

Comments (on the following recommendation):
Certain provisions are purely transitional in nature, and may have continuing effect.  These provisions will at some time become spent.  I propose that they simply be moved to Schedule II—Transitional and Temporary Provisions.

Recommendation:
Add a section to the effect of the following to the Constitution Alteration.

Sections 49 (from the words "and until declared"), 105A(2), 107, 108
Move to Schedule II—Transitional and Temporary Provisions.  Amend as per my draft Constitution.

Comments (on the following recommendation):
Section 116 deals with a limitation on the powers of the Commonwealth, but anomalously, it is located within the chapter entitled "The States".  I proposed that this simply be moved to a new section 52A, which is in the same region of the Constitution as other provisions dealing with the legislative power of the Commonwealth.

Recommendation:
Add a section to the effect of the following to the Constitution Alteration.

Section 116
Move the section to s52A as per my draft Constitution.

Comments (on the following recommendation):
It may be necessary or convenient to include certain other transitional and temporary provisions, most of which have already been referred to in this paper — please see my draft Constitution.

Recommendation:
Add a section to the effect of the following to the Constitution Alteration.

Clauses 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 of Schedule II
Add certain transitional and temporary provisions.  Amend as per my draft Constitution.


8. Comments on Schedule 3 — Transitional Provisions

1 At the end of the Constitution

Add:

Comments:
Agreed, but change "Schedule 2—Transitional provisions for the establishment of the republic" to "Schedule II—Transitional and Temporary Provisions"

Comments:
Rather than a person acting as President in accordance with section 63, I would suggest that the person last occupying the office of Governor-General act as President.

Recommendation:
Omit from the end your proposed section 2:

and substitute: Comments:
Also, the language used to refer to the oath of affirmation of office should be slightly modified.

Recommendation:
In the second paragraph of your proposed section 2, omit the words:

substitute:
Comments:
Agreed.

Comments:
Agreed.

Comments:
Alteration of laws could probably be an extremely difficult, involved and time-consuming process for a State to undertake, and I would venture to suggest that even if a State wanted to effect the transition to a republican form of government, it might not have the capacity to do so under the Government's suggested formula in time for the transition at the Commonwealth level.

A simple solution would be to a enable a State's Parliament to resolve to have the Queen to continue to be head of state of the State for whatever reason it thinks fit, but in the absence of such resolution, the provisions of my proposed amended section 110 and of my proposed amended clause here would ensure that a smooth, automatic transition to a republican form of government could occur.  Each State would be free to allow, or not to allow, these provisions to take effect automatically; however, I would suggest that if for no other reason than for the sake of convenience, some, of not all of the States would take advantage of the existence of my proposed provisions.

To avoid confusion with a republican interpretation of the term "Crown", the term "Queen" should be used instead to refer to the monarch (as it already is in so many other sections of the Constitution).

Recommendation:
Rather than the Government's proposed section, substitute:

Comments:
The following recommended provisions draw substantially from section 7 of the Australia Act 1986, except that the role of the Queen (the Head of State of the Commonwealth) is substituted by the President (the Head of State of the Commonwealth replacing both the Queen and the Governor-General).  Although the Governor continues to be appointed by the Head of State (now the President), this sub-section is worded so as not impinge on State autonomy (the President has no discretion in the appointment), and in any case, the process of the appointment and removal of the Governor may be otherwise freely determined by each State if it so pleases.

It is important to realise that there is nothing new in my proposed provisions; in fact, these would seem to retain the status quo more faithfully than would the Government's proposed provisions.

Furthermore, the Government's proposed provisions could result in constitutional crisis.   Let me give some examples (not an exhaustive list) of the situations that might potentially result if my recommendations are not heeded:

Scenario (1):  A State does not change its laws to sever its links with the monarch, but the monarch declines to continue to remain the head of state of the State.  The Governor subsequently dies, resigns, or his commission expires, and, for whatever reason, there is no person who can act as Governor.  There being no person who can or will act to appoint a new Governor, constitutional vacuum ensues.  The State would not be able to alter its laws to sever its links with the monarch (as they could not be assented to), and the constitutional processes of the State would progressively disintegrate.  (E.g., a new Premier could never be appointed, the Parliament could not be summoned, and laws could not be assented to.)  Only an amendment (similar to what I have proposed) to amend the Commonwealth Constitution could deliver the State from constitutional vacuum.

Scenario (2):  A State purports to change its laws to sever its links with the monarch, but it is later discovered that not all laws had been changed to completely sever links with the monarch.  It could be argued that the Government's provision in that case revives, and the monarch would once again become the head of state of the State.

Scenario (3):  A State changes its laws to sever its links with the monarch, but does not make adequate provision in respect of the appointment of the Governor.  The Governor subsequently dies, resigns, or his commission expires, and, for whatever reason, there is no person who can act as Governor, with similar consequences as depicted in scenario (1).

Apart from amendment of the Commonwealth Constitution, as the only means of restoring some semblance of government under such circumstances of constitutional vacuum would be by unconstitutional means, opportunistic individuals who do not have the best interests of democracy at heart might take advantage of the situation to attain power with undesirable and completely unpredictable results.

Recommendation:
Repeal sections 110.  Repeal sections 107, 108, 109 and 110, substitute:


Comments:
Agreed.

Comments:
Agreed, but see my comments and recommendations in respect of the Government's proposed Schedule 2 clause 5.  In my draft Constitution, my proposed section 100 sub-section (5) would probably render the Government's proposed Schedule 2 clause 7 redundant.

Comments:
Agreed, but see my comments and recommendations in respect of the Government's proposed Schedule 2 clause 5.  My proposed section 100 sub-section (5) would probably render the Government's proposed Schedule 2 clause 7 redundant.

Recommendation:
See my recommendation under clause 1 of the Constitution Alteration (regarding proposed section 127 of the Constitution) recommending changes to clause 8 of Schedule II of the Constitution.


Comments:
Agreed, but see my comments in respect of proposed clause 5 of Schedule II, in accordance with which the term "Crown" is substituted with the term "Queen". Furthermore, as this clause only applies to clause 5 of Schedule II, it would make sense to include it within clause 5.

Recommendation:
Omit "Crown", substitute "Queen", then add the following to the end of clause 5:


9. Other proposed amendments

Comments:
The Constitutional Convention resolved that a Preamble (if any) would be of no legal effect.  My proposed amendment would give effect to this, but if the referendum to approve a proposed Preamble were lost, the amendment would have no effect, but could be retained to apply to any future Preamble which might be included.

Recommendation:
Add the following clause to Schedule 1 of the Constitution Alteration:

A1 Paragraph 76(i)
Add at the end:


10. Comments on the Presidential Nominations Committee Bill

General comments:
My proposed section 67A sets a minimal framework for the Constitutional Council, which is the committee which nominates candidates for the office of President.  This framework is reasonably compatible with the proposed Presidental Nominations Committee Bill 1999 except that some provisions of the Presidental Nominations Committee Bill 1999 would be inconsistent with my proposed amendments.

Comments (on the following recommendation):
I have named the committee the "Constitutional Council", a name commensurate with the central constitutional role played by the committee.  All references to "Presidential Nominations Committee" should thus be changed accordingly.

Recommendation:
Change "Presidential Nominations Committee" (wherever occurring) to "Constitutional Council".

Comments (on the following recommendation):
My draft Constitution requires that the Constitutional Council be convened at certain times which are clearly defined in section 60 of my draft Constitution, rather than simply — and probably dangerously — assuming that "it can be expected that a committee be established..." at the appropriate time, as the Government states in its comments 5.3 and 5.4 on clause 4.

Recommendation:
Change sub-clause (1) of clause 4 to read:

Comments (on the following recommendation):
Clause 8 provides that all members of the committee are appointed by the Prime Minister — an unnecessary concentration of power in the Prime Minister.  Section 67A of my draft Constitution clearly lists certain members of the Constitutional Council, some of whom are, or may be, appointed by the Prime Minister, but others of whom are not.  Thus, former Presidents and Vice Presidents sit on the Constitutional Council (but do not vote), others sit on the Constitutional Council by virtue of their office (e.g., the Speaker, the President of the Senate, three people appointed by the Prime Minister, three people appointed by the Opposition Leader and one person appointed by the each of the leaders of the other parties in the Parliament) and others appointed according to law.  Clause 9 becomes irrelevant, as these members are appointed in accordance with my section 67A. Incidentally, clause 9 is biased in favour of coalitions of parties, as each party belonging to that coalition counts as one party for the purpose of determining the entitlement of that party to membership of the committee. For example, if only the ALP, Liberal and National parties have more than 5 M.P.s, following the proposed formula, the ALP gets 1 member, then Liberal 1, then National 1; then the ALP 1, Liberal 1, National 1, then ALP 1, then Liberal 1, with totals of ALP 3, Coalition 5 (regardless of which of the two has a majority of M.P.s).

Recommendation:
Omit clause 9.  Alter clause 8 to read:

Comments (on the following recommendation):
Sub-clause 15(1) provides that members of the committee may resign by notice in writing to the Prime Minister.  In the interest of promoting the separation of powers, my section 67A provides that resignation should be effected by notice in writing to the Convenor.

Recommendation:
Omit sub-clause 15(1).


Last updated 15 July 1999.


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