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TRANSCRIPT OF
PROCEEDINGS
Tuesday, 3 February 1998
Page 13
What I will do now is run
through each of the working groups, as we did at the beginning,
and I will have the resolutions formally moved and seconded and
then flashed on the screen. I will begin with Working Group 1 and
have a mover and a seconder for Working Group 1's resolutions.
WORKING GROUP 1
Same range of powers with
the existing constraints on their use; no express provision to be
made about the conventions that guide the use of the reserve
powers.
RESOLUTIONS
The conventions
associated with the Australian Constitution not be codified, with
the exception that the Constitution be amended to reflect the
fact that the Head of State acts with the advice of the Federal
Executive Council or a Minister in the exercise of all but his or
her reserve powers.
However, in the
event that the Head of State were popularly elected, full
codification, including codification of the reserve powers, would
be necessary.
Further, in the
event that the Head of State were elected by a two-thirds
majority of a joint sitting of Federal Parliament, and was
dismissible by a similar process, full codification would be
required.
In the event that
the Head of State were dismissible by the Prime Minister or a
body acting on the advice of the Prime Minister, codification
would not be necessary.
Moved by Professor Craven;
seconded by Mr McGarvie.
CHAIRMAN- What I am
doing is getting them formally flashed up. Then you can speak
across the floor, so we can get more speakers. There is no
restriction on the number of times people can speak. I have
noticed that three or four people have wanted to speak before,
and I will give them priority.
WORKING GROUP 2
Same range of powers with
an express provision to incorporate by reference the conventions
governing the use of the reserve powers.
RESOLUTIONS
In order to ensure
that the existing conventions continue to apply to the exercise
of the reserve powers by the new Head of State
Moved by Ms Bishop; seconded
by Ms Rodgers.
WORKING GROUP 3
Same powers with a written
statement of the conventions governing the use of the reserve
powers as a non-binding guide
RESOLUTIONS
That the Convention
resolve that if there is agreement on a written statement of the
conventions governing use of the reserve powers, that it be in
the form of binding rules, rather than non-binding guide.
Moved by Ms Delahunty;
seconded by Ms Bell.
WORKING GROUP 4
Same powers with
codification of the conventions governing the use of the reserve
powers as binding rules
RESOLUTIONS
1. The existing
practice that non reserve powers should only be exercised in
accordance with the government's advice should be stated in the
Constitution.
2. The head of State
should have reserve powers, ie. powers
3. The reserve
powers are (1) to appoint the minister, (2) remove the Prime
Minister and (3) refuse to dissolve Parliament.
4. The current
balance of power between the Prime Minister and the head of State
should be retained and accordingly the Constitution should
expressly provide for the continuation of the existing
conventions in a Republic.
5. After much
consideration the full codification of the reserve powers was
neither desirable nor achievable (not desirable because it was
necessary for the head of State to be able to deal with
unforeseen contingencies and the impossibility of anticipating
future contingencies. It was unachievable because the community
is divided on how the head of State should react to the Senate
denial of supply and we believe the community would not wish to
diminish the powers of the head of State).
6. However, we
believe a partial codification of the reserve power conventions
would be desirable essentially for two reasons: (1) to enable the
Constitution to provide a statement of powers which more
accurately reflects actual practice and (2) to constrain both the
Prime Minister and the head of State to ensure that they comply
with the governing conventions. Partial codification was favoured
rather than full codification for the reason given in (5).
7. We accepted the
Republic Advisory Committee's partial codification model in
principle and, with one dissentient, recommended to the
Convention the specific draft principles enunciated by the
Committee (attached hereto).
8. Consequentially,
we did not consider the power to assent legislation a reserve
power; the head of State's exercise of the power to assent or
refuse to assent should be exercised only in accordance with
ministerial advice. We favoured abolishing obsolete
Constitutional provisions such as the Queen's power to disallow
legislation and archaic provisions such as the executive power to
prorogue Parliament.
Moved by Mr Turnbull;
seconded by Mr Wran.
WORKING GROUP 5
The present powers of the
head of state and the defects of the known republican
alternatives
RESOLUTIONS
1. That the
Convention notes that the existing powers of the monarch of
Australia following passage of the State of Westminster and the
Australia Act are:
- a) the
appointment and dismissal of the Governor-General on the
advice of the Australian Prime Minister; and
b) the
disallowance of Acts of the Australian Parliament on the
advice of the Australian Prime Minister.
2. That the
Convention notes that the powers of the Governor-General consist
of powers explicitly conferred by the Constitution which are now
exercised by the Governor-General on the advice of the relevant
Australian Ministers, powers exercised under statute, and reserve
powers. The working group refers the Convention to the discussion
of these powers in the paper by Sir David Smith The Role of
the Governor-General: our Australian Head of State, (tabled).
3. That the
Convention note that any conferral of tenure on the Head of
State, as is conferred in all republican models, will lead to an
imbalance between the powers of the Prime Minister and the powers
of the Head of State, because the Prime Minister is without
tenure. The Convention further notes the importance of
maintaining the dominance of the elected Parliament in the
Australian system of government.
4. That the
Convention notes that codification of powers will give rise to
litigation which could lead to results unforeseen by those
responsible for the codification. The working group noted the
opinion of The Rt. Hon Sir Harry Gibbs on this matter (tabled).
The working group particularly draws the attention of the
Convention to differences between republican models in codifying
the relationship of a president to the armed forces.
Moved by Mr Hepworth;
seconded by Father Fleming.
WORKING GROUP 6
Broader powers for a new
head of state
RESOLUTIONS
A. This Convention
resolves that:
1. In the event that
the Convention supports a direct popular election of the Head of
State within a republic, the model containing the following
expanded powers of the Head of State to be put to referendum:
(a) appointment of a
Prime Minister consistent with majority of parliamentary support;
(b) dismissal of a
Prime Minister who loses majority parliamentary support or who
acts illegally or unconstitutionally;
(c) the power to
dissolve Parliament and call elections where:
- (i) no Member
of Parliament has majority support to commissioned Prime
Minister; or
(ii) the
Member of Parliament or Members of Parliament who do have
majority support have acted illegally or
unconstitutionally;
(d) acts as
President of the Executive Council;
- (e) gives
consent to legislation and executive actions, on the
advice of the Executive Council except where otherwise
provided in the Constitution.
(f) is
Commander-in-Chief of the armed forces, acting on the
advice of the Executive Council and with prior
parliamentary approval, however in cases of urgency
subsequent parliamentary approval is to be sought as soon
as possible.(g) negotiates and enters into
treaties subject to ratification by Parliament;
(h) appoints
justices of the High Court and other courts created by
Parliament on the advice of the Executive Council and
subject to ratification by Parliament;
(i) The Head
of State can refer Bills, except those Bills for the
ordinary annual services of the Government, his or her
own proposed constitutional amendments and other matters
of national interest to the people through referendum;
(j) can
refer any Bill to the High Court to determine its
constitutionality;
(k) the Head
of State:
- (i)shall,
on the advice of the Prime Minister, by Proclamation
or otherwise summons and prorogue the Parliament and
in like manner dissolve the House of Representatives;
(ii)may, in his/her
absolute discretion, refuse to dissolve Parliament on
the advice of a Prime Minister who has ceased to
retain the support of a majority of the House of
Representatives;
(iii)may,
in his/her absolute discretion, dissolve Parliament
when the Parliament has refused to provide revenue or
moneys for the ordinary annual services of the
Government;
(iv)when
a proposed law is passed by both Houses of Parliament
and presented to the Head of State for his/her
assent, s/he shall declare, according to the
Constitution, that s/he assents, or that s/he
withholds his/her assent. The Head of State may
within three months return to the House in which it
originated any proposed law so represented to
him/her, and may transmit therewith any amendments,
which s/he may recommend, and the House may deal with
the recommendations;
(v)where
the Head of State withholds his/her assent to a
proposed law passed by the Houses of Parliament and
continues to do so, the Prime Minister may, after a
period of three months, advise the Head of State to
convene a joint sitting of the Members of the Senate
and of the House of Representatives;
(vi)the
members present at the joint sitting may deliberate
and shall vote together upon the proposed law as last
proposed by the Senate and the House of
Representatives, and if the proposed law is affirmed
by a majority of sixty percent of the total number of
members of the Senate and House of Representatives,
it shall be taken to be duly passed by both Houses of
the Parliament, and on presentation to the Head of
State, s/he shall give it his/her assent;
(vii)appoints
public servants and military personnel; and
(viii)can
take emergency measures to protect national security
and integrity, subject to the right of Parliament to
review, confirm, amend, or revoke those measures.
2. That the
Westminster conventions as modified currently in operation that
are inconsistent with the above changes, be expressly repealed.
B. This Convention
resolves that:
1. In the event that
the Convention supports a direct popular election of the Head of
State within a republic, the model containing the following
expanded powers of the Head of State be put to referendum:
(a) The Head of
State appoints Ministers of State, who are not Members of
Parliament but whose appointment is subject to ratification by
Parliament;
(b) acts as
President of the Executive Council;
(c) gives consent to
legislation and executive actions, except where otherwise
provided in the Constitution;
(d) is
Commander-in-Chief of the armed forces acting with prior
parliamentary approval, however in cases of urgency subsequent
parliamentary approval is to be sought as soon as possible;
(e) negotiates and
enters into treaties subject to ratification by Parliament;
(f) appoints
justices of the High Court and other courts created by Parliament
subject to ratification by Parliament;
(g) The Head of
State can refer Bills, except those Bills for the ordinary annual
services of the Government, his or her own proposed
constitutional amendments and other matters of national interest
to the people through referendum;
(h) can refer any
Bill to the High Court to determine its constitutionality;
(i) appoints public
servants and military personnel;
(j) can take
emergency measures to protect national security and integrity,
subject to the right of Parliament to review, confirm, amend, or
revoke those measures.
2. The Head of State
is not subject to Westminster conventions, as modified, currently
applicable, which are expressly repealed in their entirety.
Moved by Mr Gunter; seconded
by Mr O'Brien.
WORKING GROUP 7
Lesser powers of the head
of state with codification
RESOLUTIONS
Resolution A
RESOLUTION ON CODIFICATION
AND LIMITATION OF HEAD OF STATE POWERS
This Convention
supports:
- full codification
of the powers of the Head of State in order to eliminate, to the
maximum practicable extent, uncertainty and ambiguity about their
meaning;
- limitation, in
that context, of the powers of the Head of State in order to
eliminate, to the maximum practicable extent, the possibility of
any conflict with the principles of responsible government; and
- limitation of the
powers of the Senate to the extent necessary to eliminate the
possibility arising of the Head of State exercising discretionary
power to resolve a conflict between the two Houses.
This would mean:
(1) in the case of
the powers expressly given to the Governor-General by the present
Constitution and stated to be exercisable on the advice of the
Federal Executive Council
- retain, with
provisions to clarify the position of the Federal Executive
Council as representing the Government of the day;
(2) in the case of
the powers expressly given to the Governor-General by the present
Constitution, but with no indication as to how they are to be
exercised
- spell out in
detail the applicable rules, taking into account the Resolutions
adopted by the Australian Constitutional Convention in 1983 and
1985, and the Recommendations of the 1993 Republic Advisory
Committee;
(3) in the case of
the reserve powers of the Governor-General (not expressly stated
in the present Constitution) in relation to the appointment and
dismissal of Prime Ministers and the dissolution of P
- spell out in
detail appropriate rules to cover each situation, making it clear
that the Head of State retains no independent personal
discretion, taking into account the Recommendations of the 1993
Republic Advisory Committee and provisions of other Constitutions
where these rules are fully codified;
(4) in the case of
the Senate's power to block supply, not expressly limited by the
present Constitution
- amend the
Constitution by a provision removing the Senate's right to reject
or significantly delay bills appropriating moneys for the
ordinary annual services of the government.
ATTACHMENT TO WORKING
GROUP 7
RESOLUTION A
REPUBLIC ADVISORY
COMMITTEE 1993: COMPLETE CODIFICATION MODEL
1A. Executive Power
of the Commonwealth
1) The executive
power of the Commonwealth is vested in the Head of State and is
exercisable either directly or through Ministers of State
(including the Prime Minister) or persons acting with their
authority.
2) The executive
power of the Commonwealth extends to the execution and
maintenance of the Constitution, and the laws of the
Commonwealth.
3) The Head of State
shall exercise his or her powers and functions in accordance with
the advice tendered to him or her by the Federal Executive
Council, the Prime Minister or other such Ministers of State as
are authorised to do so by the Prime Minister.
4) Subsection (3)
does not apply in relation to the exercise of the powers or
functions of the Head of State under sections 2A, 3A(4), 5A and
6A.
2A. Appointment of
the Prime Minister
1) The Head of State
shall appoint a person, to be known as the Prime Minister, to be
the Head of the Government of the Commonwealth.
2) Subject to
subsection 3A(4), whenever it is necessary for the Head of State
to appoint a Prime Minister, the Head of State shall appoint that
person who commands the support of the House of Representatives
expressed through a resolution of the House, and in the absence
of such a resolution, the person who, in his or her judgment, is
the most likely to command the support of that House.
3) The Prime
Minister shall not hold office for a longer period than 90 days
unless he or she is or becomes a member of the House of
Representatives.
4) The Prime
Minister shall be a member of the Federal Executive Council and
shall be one of the Ministers of State for the Commonwealth.
5) The Prime
Minister shall hold office, subject to this Constitution, until
he or she dies ore resigns, or the Head of State terminates his
or her appointment.
6) The exercise of
power of the Head of State under subsection (2) shall not be
examined in any court.
3A. Other Ministers
1) Ministers of
State shall be appointed by the Head of State acting in
accordance with the advice of the Prime Minister
2) One of the
Ministers of State may be denominated Deputy Prime Minister.
3) Subject to this
section, the Head of State shall only remove a Minister from
office in accordance with the advice of the Prime Minister.
4) Upon the death of
the Prime Minister, the Head of State shall appoint the Deputy
Prime Minister or, if there is no Deputy Prime Minister, the
minister most senior in rank, to be the Prime Minister.
5) In this section,
"Minister" does not include the Prime Minister.
4A. Dismissal of the
Prime Minister- no confidence resolutions
1) If the House of
Representatives, by an absolute majority of its members, passes a
resolution of confidence in a named person as Prime Minister
(other than the person already holding office as Prime Minister),
and the Prime Minister does not forthwith resign from office, the
Head of State shall remove him or her from office.
2) If the House of
Representatives passes, other than by an absolute majority of its
members, a resolution of confidence in a named person as Prime
Minister (other than the person already holing office as Prime
Minister), and the Prime Minister does not within three days
resign from office or secure a reversal of that resolution, the
Head of State shall remove him or her from office.
3) If the House of
Representatives passes a resolution of no confidence in the Prime
Minister or the Government by an absolute majority of its members
and does not name another person in whom it does have confidence,
and the Prime Minister does not, within three days of the passing
of that resolution, either resign from office, secure a reversal
of that resolution or advise the Head of State to dissolve the
Parliament, the Head of State shall remove him or her from the
office of Prime Minister.
4) If the House of
Representatives passes a resolution of no-confidence in the Prime
Minister or the Government other than by an absolute majority of
its members and does not name another person in whom it does have
confidence, and the Prime Minister does not, within seven days of
the passing of that resolution, either resign from office, secure
a reversal of that resolution or advice the Head of State to
dissolve the Parliament, the Head of State shall remove him or
her from the office of Prime Minister.
5A. Dismissal of the
Prime Minister- constitutional contravention
1) If the Head of
State believes that the Government of the Commonwealth is
contravening a fundamental provision of this Constitution or is
not complying with an order of a court, the Head of State may
request the Prime Minister to demonstrate that no contravention
is occurring or that the Government is complying with the order.
2) If, after giving
the Prime Minister that opportunity, the Head of State still
believes that such a contravention or non-compliance is
occurring, the Head of State may apply to the High Court for
relief.
3) If, on
application by the Head of State, the High Court is satisfied
that the Government of the Commonwealth is contravening a
provisions of this Constitution or not complying with the order
of a court, the High Court may grant such relief as it sees fit
including a declaration to that effect. The High Court shall not
decline to hear such application on the ground that it raises
non-justiciable issues.
4) If on an
application by the Head of State, the High Court declares that
the Government of the Commonwealth is contravening this
Constitution or not complying with the order of a court and the
Prime Minister fails to take all reasonable steps to end the
contravention or to ensure compliance with the order, the Head of
State may dissolve the House of Representatives.
5) If the Head of
State dissolves the House of Representatives under this section,
he or she may also terminate the Prime Minister's commission and
appoint as Prime Minister such other person who the Head of State
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 the
dissolution referred to in subsection (4) above
6) The exercise of
the powers of the Head of State under this section shall not be
examined by any court.
6A. Refusal of
dissolution
The Head of State
shall not dissolve the House of Representatives-
a) on the advice of
a Prime Minister in whom, or in whose Government, the House of
Representatives has passed a resolution of no-confidence, if the
House has, by an absolute majority of its members, also expressed
confidence in another named person as Prime Minister;
b) on the advice of
a Prime Minister in whom, or in whose Government, the House of
Representatives has passed a resolution of no-confidence, if the
House has, other than by an absolute majority of its members,
also expressed confidence in another named person as Prime
Minister, unless the House has reversed the resolution;
c) while a motion of
no confidence in the Prime Minister or the Government is pending;
or
d) before the House
of Representatives has met after a general election and
considered wither it has confidence in the Prime Minister or the
Government, unless then House of Representatives has met and is
unable to elect a Speaker.
For the purpose of
paragraph (c), a "motion of no-confidence" is one which
expresses confidence in another named person as Prime Minister
and is to come before the House of Representatives within eight
days.
Moved by Mr Evans; seconded
by Ms elly.
RESOLUTION B
Any codification of
powers should include a provision enabling the Head of Stat to
refer any Bill to the High Court for a decision as to its
constitutionality.
Moved by Mr Jones; seconded
by Ms Bunnell.
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