Submission to the Joint Select Committee on the Republic

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.

63 Acting President and deputies

Until the Parliament otherwise provides, the longest-serving State Governor available shall act as President if the office of President falls vacant. A State Governor is not available if the Governor has been removed (as acting President) by the current Prime Minister under section 62.

Until the Parliament otherwise provides, the Prime Minister may appoint the longest-serving State Governor available to act as President for any period, or part of a period, during which the President is incapacitated.

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:

63 Acting President

If the office of President falls vacant, or if no President has been chosen, or if the President is incapacitated, an officer referred to in the following list, set forth in order of precedence, shall thereupon act as President:
 

(i) The Vice President.

(ii) Such officers in such order of precedence as the Parliament may prescribe for the purpose.

(iii) The President of the Senate.

(iv) The Speaker of the House of Representatives.

(v) Such officers in such order of precedence as the President may, by Proclamation or otherwise, appoint for the purpose.

But an officer appearing on or referred to in the said list shall be disregarded if there is no such officer, or if such officer is absent from the Commonwealth, or is incapacitated, or resigns, or is or has been removed from the office of Acting President.

The President shall be deemed to be incapacitated upon declaration to that effect by the President, or by the Prime Minister, or by the President of the Senate, or by the Speaker, or by such officers as the Parliament may prescribe for the purpose, or by such officers as the President shall, by Proclamation or otherwise, appoint; but the President may, according to his discretion, declare that he is not, or has ceased to be, incapacitated, and any question of a dispute in regard to the incapacity of the President shall be determined by the High Court.

Term of office of Acting President

A person acting as President shall cease to act as President upon declaration of the same by the President, or when a successor to the President has entered upon the office, or when the incapacity of the President has ceased, or upon resignation or removal from office in like manner as the President, as the case may be.

Acting President to make oath or affirmation of office

A person acting as President shall not exercise a power or function of the President on any occasion unless he has in respect of that occasion of Acting President made and subscribed an oath or affirmation of office for the office of Acting President in the form set forth in Schedule I to this Constitution, and such oath or affirmation shall be administered in like manner as that administered to the President.

The provisions of this Constitution relating to the President, other than sections 60 and 61, extend and apply to any person acting as President.

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

Remuneration of Acting President

An Acting President shall receive such remuneration, payable out of the Consolidated Revenue Fund, as the Parliament fixes; but no such person shall be entitled to receive any remuneration from the Commonwealth in respect of any other office during such time as he acts as President.

Provisions relating to President to extend to Acting President

Until the Parliament otherwise provides, the President may appoint any person, or any persons jointly or severally, to be the President's deputy or deputies, and in that capacity to exercise during the pleasure of the President (including while the President is absent from Australia) such powers and functions of the President as the President thinks fit to assign to such deputy or deputies.

The appointment of such deputy or deputies shall not affect the exercise by the President personally (including while the President is absent from Australia) of any power or function.

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:

Deputies of the President

The President may in accordance with the advice of the Prime Minister appoint any person, or any persons jointly or severally, to be his deputy or deputies, and in that capacity to exercise during the pleasure of the President (including while the President is absent from Australia) such powers and functions of the President as the President thinks fit to assign to such deputy or deputies subject to any limitations expressed or directions given by the Prime Minister; but the appointment of such deputy or deputies shall not affect the exercise by the President himself (including while the President is absent from Australia) of any power or function.

A person shall not exercise powers or functions as the acting President unless, in respect of that occasion of acting as President, the person has made and subscribed, before a Justice of the High Court, the President's oath or affirmation of office in the form set forth in Schedule 1 to this Constitution.

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

A person shall not exercise powers or functions as the President's deputy unless, since being appointed as the President's deputy, the person has made and subscribed, before a Justice of the High Court, the President's oath or affirmation of office in the form set forth in Schedule 1 to this Constitution.

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

Limitations on powers of deputies of the President.  Deputies of the President to make oath or affirmation of allegiance and oath or affirmation of office

A deputy of the President shall not exercise a power or function of the President on any occasion:
 

(i) except in accordance with the instrument of appointment;

(ii) except at the request of the President, acting in accordance with the advice of the Prime Minister, that he exercise that power or function on that occasion;

(iii) unless since being appointed a deputy of the President he has made and subscribed an oath or affirmation of office for the office of deputy of the President in the form set forth in Schedule I to this Constitution, and such oath or affirmation shall be administered in like manner as that administered to the President.

An acting President, or a person exercising powers or functions as the President's deputy, shall receive such allowances as the Parliament fixes.

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

Remuneration of Acting President

A person exercising powers of functions as a deputy of the President shall receive such remuneration, payable out of the Consolidated Revenue Fund, as the Parliament fixes.

4 At the end of Chapter II

Add, in Chapter II:

70A Continuation of prerogative

Until the Parliament otherwise provides, but subject to this Constitution, any prerogative enjoyed by the Crown in right of the Commonwealth immediately before the office of Governor-General ceased to exist shall be enjoyed in like manner by the Commonwealth and, in particular, any such prerogative enjoyed by the Governor-General shall be enjoyed by the President.

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:

The prerogatives of the Crown in right of the Commonwealth shall be enjoyed by the President, or by the Commonwealth, as the case may be, subject to this Constitution and to such regulations as the Parliament prescribes.

9 Continuation of prerogative

Subject to this Constitution, any prerogative derived from the royal prerogative and enjoyed by the Crown in right of the Commonwealth immediately before the office of Governor-General ceased to exist shall continue to be enjoyed by the President, or by the Commonwealth, as the case may be.

The reference to "conventions" in the preceding sentence, in section 59 and in section 127 shall be construed as including a reference to the conventions that related to the exercise of a power by the Governor-General, and the reference to "reserve power" in the preceding sentence and in section 59 shall be construed as being a reference to powers which were reserve powers of the Governor-General.

5 Schedule

Repeal the Schedule, substitute:

Schedule 1—Oaths and affirmations

Part 1—Oath or affirmation of allegiance: Members of Parliament

Under God I swear that I will be loyal to the Commonwealth of Australia and the Australian people, whose laws I will uphold.

I solemnly and sincerely affirm that I will be loyal to the Commonwealth of Australia and the Australian people, whose laws I will uphold.

Part 2—Oath or affirmation of office: President

Under God I swear that I will be loyal to the Commonwealth of Australia and the Australian people, whose rights and liberties I respect and whose laws I will uphold, and that I will serve the Australian people according to law without fear or favour.

I solemnly and sincerely affirm that I will be loyal to the Commonwealth of Australia and the Australian people, whose rights and liberties I respect and whose laws I will uphold, and that I will serve the Australian people according to law without fear or favour.

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:

Part 1—Oath or affirmation of allegiance: Members of Parliament

Part 1—Oath or affirmation of allegiance

Part 1—Oath or affirmation of allegiance

OATH

Under God, I, A.B., do swear that I will be loyal to the Commonwealth of Australia and the Australian People, whose rights and liberties I respect, whose democratic beliefs I share, and whose laws I will uphold, and that I will well and truly serve the Australian People according to law without fear or favour.

AFFIRMATION

I, A.B., do solemnly and sincerely affirm that I will be loyal to the Commonwealth of Australia and the Australian People, whose rights and liberties I respect, whose democratic beliefs I share, and whose laws I will uphold, and that I will well and truly serve the Australian People according to law without fear or favour.

Part 2—Oath or affirmation of office

OATH

Under God, I, A.B., do swear that I will be loyal to the Commonwealth of Australia and the Australian People, whose rights and liberties I respect, whose democratic beliefs I share, and whose laws I will uphold; that I will well and truly serve the Australian People according to law without fear or favour; and that I will faithfully and conscientiously fulfil the duties of the office of President of the Commonwealth of Australia.

AFFIRMATION

I, A.B., do solemnly and sincerely affirm that I will be loyal to the Commonwealth of Australia and the Australian People, whose rights and liberties I respect, whose democratic beliefs I share, and whose laws I will uphold; that I will well and truly serve the Australian People according to law without fear or favour; and that I will faithfully and conscientiously fulfil the duties of the office of President of the Commonwealth of Australia.

(NOTE - The title of the office of President of the Commonwealth of Australia is to be substituted with the title of such other office as the case may require.)

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

Recommendation:
Add the following section to the Constitution Alteration.

6 Section 63A
Add:

63A The Vice President

The Parliament may provide that there shall be a Vice President, but in the absence of such provision, there shall be no Vice President.

The provisions of this Constitution relating to the President extend and apply to the Vice President, except that the Vice President shall not exercise a power or function of the President on any occasion except when acting as President or as a deputy of the President.

The Vice President shall be chosen in like manner as is the President, and the procedure for nomination and choosing of a Vice President shall, as nearly as practicable, be conducted at the same time and in like manner as that for the President, except that in choosing a Vice President, a vote by the joint sitting of the members of the Senate and of the House of Representatives shall be conducted separately from the vote by the joint sitting to choose a President, and the incoming Vice President shall enter upon his office at the same time as the incoming President, or as soon as practicable thereafter, whereupon the term of the outgoing Vice President shall be deemed to have expired.

Recommendation:
Add the following section to the Constitution Alteration.

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

67A The Constitutional Council

There shall be a Constitutional Council, with such powers of administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of those provisions of this Constitution which vest functions and powers therein, and of all laws made under those provisions.

Composition of Constitutional Council

The members of the Constitutional Council shall be -
 

(i) Ex officio non-voting members, comprising the President, the Vice-President, and all former Presidents and Vice-Presidents;

(ii) Ex officio voting members, comprising -
 

(a) the President of the Senate;

(b) the Speaker of the House of Representatives;

(c) the Prime Minister (or his designated substitute);

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

(e) the Leader of the Opposition (or his designated substitute);

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

(g) the leaders (or their designated substitutes) of parties or coalitions of parties as the case may be, other than those of the Prime Minister and the Leader of the Opposition, having five or more members in the Parliament;

(h) such other ex officio voting members as the Parliament provides;

(iii) At least sixteen community members, who shall have a vote.
 
Convenor of Constitutional Council

Unless the Parliament otherwise provides, the President of the Senate shall be the Convenor of the Constitutional Council.

Resignation of member of Constitutional Council

A member of the Constitutional Council may resign his office by writing addressed to the Convenor.

Quorum of Constitutional Council

The presence of at least sixteen voting members shall be necessary to constitute a meeting of the Constitutional Council for the exercise of its powers.

Voting in Constitutional Council

Subject to this Constitution, questions arising in the Constitutional Council shall be determined by a majority of votes, and each voting member shall have one vote. The Convenor shall in all cases be entitled to vote; and when the votes are equal the Convenor shall have a casting vote.

Community members

The qualifications of a community member of the Constitutional Council shall be the same as those of the President.

The community members of the Constitutional Council -
 

(i) Shall be appointed in such manner as may be prescribed by the Parliament, but in the absence of such provision, shall be elected by a single vote of the Senate to fill all such offices, and the method of voting shall be proportional representation by means of the single transferable vote;

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

(iii) Shall receive such remuneration, payable out of the Consolidated Revenue Fund, as the Parliament fixes; but such remuneration shall not be altered during their continuance in office.

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

Omit "The Schedule", substitute:

Schedule 1—Oaths and affirmations
Schedule 2—Transitional provisions for the establishment of the republic

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:

• the power to fix session times for the holding of sessions of Parliament;
• the power to prorogue the Parliament;
• the power to dissolve the House of Representatives;
• the power to summon the Parliament to meet.

• when the advice of the Executive Government is tendered to the President in respect of any of these matters, the President should be obliged to act in accordance with that advice.
• the ability of the President (according to his discretion) to expand the scope of the reserve powers to include the exercise of certain of these powers in addition to those occasions when so advised by the Executive Government is appropriate; namely, the power to summon the Parliament to meet (and, included within this meaning, to convene a joint sitting).  This ensures that the President may, as a safeguard against a recalcitrant, mischievous government which (for whatever reason) unreasonably refuses to allow Parliament to meet, enable the Parliament to meet.
• the power to dissolve the House of Representatives should also, under certain circumstances, be discretionary — this will be discussed further in relation to provisions in respect of the removal from office of the Prime Minister.
• under certain circumstances, the President should be obliged to exercise certain of these powers, and that if he fails to do so, some automatic mechanism should be in place to ensure that constitutional deadlock does not occur.  Such an automatic mechanism is not unprecedented; indeed, the Government has itself proposed one in respect of the assumption of office of an Acting President.

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 Sessions of Parliament, prorogation and dissolution The President shall be required to convene meetings of the Federal Executive Council whenever so advised by the Prime Minister, notwithstanding that the President may, according to his discretion, convene additional meetings of the Federal Executive Council whenever he sees fit.

Subject to this Constitution, the President in Council may appoint such times for holding the sessions of the Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, summon the Parliament, or convene a joint sitting of the members of the Senate and of the House of Representatives, or prorogue the Parliament, or dissolve the House of Representatives, notwithstanding that the President may, according to his discretion, from time to time, by Proclamation or otherwise, summon the Parliament, or convene a joint sitting of the members of the Senate and of the House of Representatives.
 
Summoning Parliament

After any general election the President shall summon the Parliament to meet not later than thirty days after the day appointed for the return of the writs.

Parliament summoned automatically

If there is no President or no person acting as President, or if the President refuses or otherwise fails to summon the Parliament or convene a joint sitting when so advised by the Federal Executive Council, or when otherwise required by this Constitution, the Parliament shall be deemed to have been summoned or a joint sitting convened at noon one week from the date on which the President had been advised by the Federal Executive Council to summon the Parliament or convene a joint sitting, or from the date on which he had otherwise been required to summon the Parliament or to convene a joint sitting.

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:

28 Duration of House of Representatives

Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, unless sooner dissolved by the President in accordance with this Constitution.

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:

32 Writs for general election

The President shall cause writs to be issued for general elections of members of the House of Representatives within ten days from the expiry of a House of Representatives or from the proclamation of a dissolution thereof.

15 Paragraph 34(ii)

Repeal the paragraph, substitute:

(ii) the person must be an Australian citizen.

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:

34 Qualifications of members

The qualifications of a member of the House of Representatives shall be as follows:-
 

(i) He must be of the full age of eighteen years, and must be an elector entitled to vote at the election of members of the House of Representatives, or a person qualified to become such elector;

(ii) He must be an Australian citizen;

(iii) Such other qualifications as the Parliament may prescribe.

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:

(iv) holds any office of profit under the Executive Government of the Commonwealth, a State or a Territory, or any pension payable, during the pleasure of the Executive Government of the Commonwealth, out of any of the revenues of the Commonwealth; or

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:

58 Assent to Bills

When a proposed law passed by both Houses of the Parliament is presented to the President for assent, the President shall, according to the President's discretion but subject to this Constitution, assent to the law or withhold assent.

Recommendations by President

The President may return to the House in which it originated any proposed law so presented, and may transmit therewith any amendments which the President may recommend, and the Houses may deal with the recommendation.

24 Section 64

Repeal the section, substitute:

64 Ministers of State

The President may appoint officers to administer such departments of State of the Commonwealth as the President in Council may establish. Such officers shall hold office during the pleasure of the President. They shall be members of the Federal Executive Council and shall be the Ministers of State for the Commonwealth.

Ministers to sit in Parliament

After the first general election no Minister of State shall hold office for a longer period than three months unless the person is or becomes a senator or a member of the House of Representatives.

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:

64 The Prime Minister

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

President to appoint Prime Minister

Not later than ten days after the day appointed for the return of the writs after any general election, or not later than ten days after the office of Prime Minister becomes vacant, the President shall appoint as Prime Minister that person whom he believes would be most likely to command the confidence of the House of Representatives.

Prime Minister to command confidence of the House of Representatives

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

Term of office of Prime Minister

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

The Leader of the Opposition

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

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:

65 Ministers of State

The President, in accordance with the advice of the Prime Minister, shall appoint and remove from office Ministers of State, and may appoint such Ministers of State to administer such departments of State of the Commonwealth as the President in Council may establish.

Offices held by Ministers

The Ministers of State shall hold such offices as the Parliament prescribes, or, in the absence of provision, as the President, in accordance with the advice of the Prime Minister, directs.

Ministers to sit in Parliament

No Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.

Number of Ministers of State

Unless the Parliament otherwise provides, the Ministers of State shall not exceed seven in number.

Remuneration of Ministers

The Ministers of State shall receive as remuneration such annual sum, payable out of the Consolidated Revenue Fund, as the Parliament fixes.

26 Section 66

Repeal the section, substitute:

66 Salaries of Ministers

There shall be payable out of the Consolidated Revenue Fund, for the salaries of the Ministers of State, such annual sum as is fixed by the Parliament.

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:

66 Removal of Prime Minister

The President may, according to his discretion, remove from office a Prime Minister who has lost the confidence of  the House of Representatives and has failed to resign, unless the Prime Minister or the Federal Executive Council has  advised the President to dissolve the House of Representatives, and President has accepted that advice.

Refusal to dissolve the House of Representatives

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

Executive Government behaving unlawfully

If the President believes that the Executive Government of the Commonwealth is breaching this Constitution, or is not complying with an order of a court, or is persisting in other unlawful behaviour, the President may, according to his discretion, dissolve the House of Representatives or dissolve the House of Representatives and remove the Prime Minister from office. In the event of the Prime Minister being so removed from office, the President may, according to his discretion, appoint as Prime Minister such other person who the President believes will take all reasonable steps to end the contravention and who will maintain the administration of the Commonwealth pending the outcome of the general election following such dissolution.

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:

68 Command of military forces

The President shall be the Commander in Chief of the military forces of the Commonwealth, but any power or function vested in the President as Commander in Chief shall be exercised or performed only in accordance with the advice of the Federal Executive Council.

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:

69 Certain powers of the President in Council

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

(i) Declare war on foreign powers:

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

(iii) Grant reprieves and pardons:

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

30 Section 70 (heading)

Repeal the heading, substitute:

70 Vesting of certain powers

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

31 At the end of section 70

Add:

All powers and functions that were vested under this section in the Governor-General, or in the Governor-General in Council, immediately before the office of Governor-General ceased to exist shall vest in the President, or in the President in Council, as the case requires.

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

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.

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:

Continuance in office of Judges

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

33 Section 73

Repeal the last sentence, substitute:

The conditions of and restrictions on appeals from the Supreme Courts of the several States to the High Court are as provided by the Parliament from time to time.

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

(ii) Of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council:

The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes...

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

from which at the establishment of the Commonwealth an appeal lies to the Queen in Council

From:

But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council.

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

in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council

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:

(i) all property of the State of any kind, used exclusively in connexion with the department, shall become vested in the Commonwealth;

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

the establishment of the Commonwealth

that time

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:

, and such territory shall be called "a Territory of the Commonwealth"

41 Section 126

Repeal the section, substitute:

126 Operation of Constitution and laws

This Constitution, and all laws made under it by the Parliament of the Commonwealth, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State.

127 Definitions

In this Constitution:

Australian citizen means a person who is an Australian citizen according to the laws made by Parliament.

The Commonwealth means the Commonwealth of Australia under this Constitution.

The original States means New South Wales, Queensland, Tasmania, Victoria, Western Australia and South Australia.

The President in Council means the President acting with the advice of the Federal Executive Council.

The States means the original States, and such territories as may be admitted into or established by the Commonwealth as States.

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:

44 Section 51

In paragraph (xix), before the word "naturalization", add "citizenship, ".

The reference to "conventions" in the preceding sentence, in section 59 and in section 127 shall be construed as including a reference to the conventions that related to the exercise of a power by the Governor-General, and the reference to "reserve power" in the preceding sentence and in section 59 shall be construed as being a reference to powers which were reserve powers of the Governor-General.

The President in Council means the President acting only in accordance with the advice of the Federal Executive Council.

The Crown, when referring to an individual, means the President acting in accordance with this Constitution; and when used otherwise, means the those organs of civil rule and government under this Constitution of the Commonwealth, a State or a Territory as the case may be.

Reserve power means a power which can be exercised by the President acting according to his discretion, and which can be exercised with, without, or contrary to, the advice of the Federal Executive Council, or of the Prime Minister, or of any other Minister of State.

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

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:

• Section 41 refers to "adult persons".  I propose that this be changed language similar to that employed in section 34 to refer to "persons of the full age of 18 years.
• Sections 46 and 48 refer to pounds as the unit of currency.  I propose that this be expressed as dollars.
• Paragraph 51(vi) refers to "naval and military defence".  I propose that this be expressed simply as "military defence", which encompasses the various forms of military defence which may exist or come into existence.
• Paragraph 51(xxxviii) refers to "the Parliament of the United Kingdom or by the Federal Council of Australasia".  I propose that these references be omitted and that the paragraph be amended to retain the same meaning (please see my draft Constitution).  All powers that were previously exercised by the Federal Council of Australasia have already been handed over to the Commonwealth. Rather than applying the condition which explicitly limits those powers which the States can authorise the Commonwealth to exercise to those which only the Parliament of the United Kingdom as at 1 January, 1901 could exercise, this enables the States to authorise the Commonwealth to exercise any power whatsoever which cannot otherwise be exercised as a result of the fact that the power is not otherwise conferred upon the Commonwealth by the Constitution, though not expressly prohibited to the Commonwealth.  This also recognises that besides the Commonwealth and State polities which operate under this Constitution, no other (foreign) polity exercises any sovereignty in Australia unless authorised by Australian polities. It is thus be desirable to remove such colonial or imperial references whilst retaining the original meaning and effect by employing alternative wording.
• Section 71 provides that there should be no less than two Justices on the High Court.  I propose that this be changed to six to express existing circumstances.
• Paragraph 75(ii) adds a reference to ambassadors.

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

Add:

Schedule 2—Transitional provisions for the establishment of the republic

1 The Governor-General

The office of Governor-General ceases to exist at the commencement of Schedules 1 and 2 to the Constitution Alteration (Establishment of Republic) 1999.

2 The first President

The first President may be chosen before the office of Governor-General ceases to exist, as if the provisions of this Constitution relating to the choice of the President had commenced when the Constitution Alteration (Establishment of Republic) 1999 was enacted.

The first President's term of office begins on 1 January 2001. The person chosen shall make and subscribe the President's oath or affirmation of office under section 60 on or before that day.

But if no person is chosen as the first President before that day, the first President's term of office begins on the day after the person chosen makes the oath or affirmation. Until that term begins, a person shall act as President in accordance with section 63.

Recommendation:
Omit from the end your proposed section 2:

a person shall act as President in accordance with section 63

the person occupying the office of Governor-General on the day before the office of Governor-General ceases to exist shall act as President.

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

the President's oath or affirmation

the oath or affirmation of office for the office of President

3 Parliament may make laws during transitional period

Before the office of Governor-General ceases to exist, the Parliament may make laws that the Parliament could have made after that time because of the enactment of the Constitution Alteration (Establishment of Republic) 1999, and such laws may take effect before that time.

4 Savings

The alterations of this Constitution made by the Constitution Alteration (Establishment of Republic) 1999 do not affect:

(i) the validity or continued effect, after the office of Governor-General ceases to exist, of anything done before that time under this Constitution or under the law in force in the Commonwealth; or

(ii) the continuity of the Parliament and its proceedings after the office of Governor-General ceases to exist; or

(iii) the qualifications of a senator or a member of the House of Representatives for the remainder of the term of a person who is a senator or member when the office of Governor-General ceases to exist; or

(iv) the continuity of the Executive Government of the Commonwealth, including in particular the membership and proceedings of the Federal Executive Council, after the office of Governor-General ceases to exist; or

(v) the continuity of courts and their jurisdiction and proceedings after the office of Governor-General ceases to exist.

After the office of Governor-General ceases to exist, anything done before that time for the purposes of a provision of this Constitution by the Governor-General, or by the Governor-General in Council, has effect as if it had been done by the President, or by the President in Council, as the case requires.

5 The States

A State that has not altered its laws to sever its links with the Crown by the time the office of Governor-General ceases to exist retains its links with the Crown until it has so altered its laws.

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:

If, before the office of Governor-General ceases to exist, the Parliament of a State resolves that the Queen shall continue to be head of state of the State after the office of Governor-General ceases to exist, Her Majesty shall continue to be head of state of the State (provided that Her Majesty does not decline to so continue), and under such circumstances, the provisions of Chapter V of this Constitution referring to the President in respect of that State shall be construed as referring to the Queen in respect of that State, and the provisions of this Constitution, or of the Constitution of a State, or in any law of the Commonwealth or of the State referring to the Crown (when referring to an individual personage) in right of that State shall be construed as referring to the Queen. The Parliament of that State may at any time thereafter resolve that the Queen shall cease to be head of state of that State, and thereafter, this clause shall cease to be of effect in so far as it applies to that State.

But after the office of Governor-General ceases to exist, in the absence of a resolution that the Queen shall continue to be head of state of the State, or following a resolution by the Parliament of a State that the Queen shall cease to be head of state of that State:
 

(i) the Queen shall cease to be head of state of the State, and shall have no powers or functions in respect of the State;

(ii) the Governor of the State shall cease to be Her Majesty's representative in the State;

(iii) the continuity of the office of a Governor of a State shall not be affected by the alterations of this Constitution made by the Constitution Alteration (Establishment of Republic) 1999, and a person holding the office of Governor of the State immediately before the Constitution Alteration (Establishment of Republic) 1999 takes effect shall continue to hold the office as if he had at the time of his appointment to that office been appointed in accordance with the Constitution as altered by the Constitution Alteration (Establishment of Republic) 1999.

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:

107 The Governor of a State

The Governor of a State shall be appointed and dismissed by the President, acting in accordance with the advice of the Executive Council of the State, or otherwise as may be prescribed by the law of the State.

108 Executive power of the State

(1) Subject to sub-sections (3) and (4), the executive power of the State is vested in the Governor of the State and exercisable by the Governor of the State subject to such limitations as may be imposed by this Constitution and by the Constitution of the State, and to such regulations as the Parliament of the State prescribes.

(2) The powers, functions, rights, privileges, immunities and prerogatives of the Crown in right of the State shall be enjoyed by the Governor of the State, or by the State, as the case may be, subject to this Constitution and to such regulations as the Parliament of the State prescribes.

(3) Subsections (1) and (2) do not apply in relation to the power to appoint or to dismiss the Governor of a State.

(4) While the President is personally present in a State, he is not precluded from exercising any of the powers and functions of the Crown in right of the State that are the subject of sub-sections (1) and (2), provided that he shall do so only during the pleasure of the Governor of the State.

(5) Subject to this Constitution, the Parliament of the Commonwealth may make laws to give effect to the provisions of section 107 and of this section, notwithstanding that the powers and functions of the Governor, and other matters relating to the office of Governor may be prescribed by the law of the State.

109 Provisions relating to Governor

The provisions of this Constitution relating to the Governor of a State extend and apply to the Governor for the time being of the State, or other chief executive officer or administrator of the government of the State.

110 Inconsistency of laws

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

6 Unified federal system

The alterations of this Constitution made by the Constitution Alteration (Establishment of Republic) 1999 do not affect the continuity of the federal system, including the unified system of law, under this Constitution.

7 Amendment of Australia Act

The Commonwealth Parliament may, at the request of a State Parliament, amend section 7 of the Australia Act 1986 and section 7 of the Australia Act 1986 of the United Kingdom to the extent that it forms part of the law of the Commonwealth or that State, to provide that those sections do not apply to the State.

Nothing in this clause prevents the amendment of section 7 of the Australia Act 1986, or section 7 of the Australia Act 1986 of the United Kingdom to the extent that it forms part of the law of the Commonwealth or a State, in accordance with subsection 15(1) of the Australia Act 1986.

8 Continued conventions

The enactment of the Constitution Alteration (Establishment of Republic) 1999 does not prevent the evolution of the constitutional conventions relating to the exercise of the reserve powers referred to in section 59 of this Constitution.

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.

9 Interpretation

The reference to the Crown in clause 5 of this Schedule shall extend to the Queen's heirs and successors in the sovereignty of the United Kingdom.

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

References to the Queen in this clause shall extend to the Queen's heirs and successors in the sovereignty of the United Kingdom.

9. Other proposed amendments

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

A1 Paragraph 76(i)
Add at the end:

, except that in any interpretation thereof, the Preamble shall be of no legal effect

10. Comments on the Presidential Nominations Committee Bill

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:

(1) A Constitutional Council shall be established in accordance with this Act each time that it is necessary to convene the Constitutional Council.

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

6 Members of the Constitutional Council

A Constitutional Council has 32 members, and apart from those persons who become members of the Constitutional Council in accordance with section 67A of the Constitution, the members shall be appointed by the Prime Minister giving written notice to the appointee.  The members appointed by the Prime Minister shall be as follows:
 

(a)  8 ex officio State/Territory members appointed under section 8;
(b) 16 community members appointed under section 9.

Recommendation:
Omit sub-clause 15(1).

Last updated 15 July 1999.