The Foundation for National Renewal   The Constitutional Convention of February 1998

Federal Election October 2004: Which Candidates Trust the People?

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

• a) if elected by a 2/3 majority of a joint sitting of the Federal Parliament or by the McGarvie model:
  • (i) that an express provision be inserted in the Constitution to incorporate by reference the existing conventions governing the use of the reserve powers; and

    (ii) that a provision be inserted for the prompt dismissal of a Head of State who departs from the existing conventions; and

  b) if elected by popular or direct election that the powers be limited and specified.

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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