Foundation for National Renewal     The "Model Constitution" Activity

Federal Election October 2004: Which Candidates Trust the People?

Introduction

Having decided in Task 11 on a separation of legislature and executive, we are now able to go on and consider the powers and responsibilities of the National Parliament. Having the executive separate from the legislature allows the executive to concentrate on implementation. Similarly, this separation allows the legislature, that is the parliament, to better concentrate on their role in government, which is the formulation of policies and the passage of legislation.

The purpose of this Task, then, is to decide on the powers and responsibilities of the National Parliament; that is, the Legislature. Detailed consideration of elections, etc, will be the subject of subsequent Tasks.

Currently, the Australian Constitution deals with these aspects of our system of government as follows.

Section 1. The legislative power of the Commonwealth shall be vested in a Federal, Parliament which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called “The Parliament”, or “The Parliament of the Commonwealth”.

Section 7. The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.

Section 24. The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of senators. The numbers of members chosen in the several States shall be in proportion to the respective numbers of their people ….

Section 49. The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members of the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.

Section 51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: - (Section 51 then lists forty subjects in which the Federal Parliament has power. The power to legislate on all matters not covered by S 51remains with the States.)

Sections 53- 56 deal with the passage of money bills and the relationship between the House and the Senate in this regard.

Section 57 deals with situations in which there is a disagreement between the House and the Senate.

Sections 58 - 60 deal with the requirement for proposed laws to be presented to the Governor General for assent by the Governor General or the Queen.

Various other Sections deal with other aspects and many are now spent or redundant. Respondents are asked to peruse those at their leisure. If anyone does not have a copy of the very informative, third edition of the Annotated Constitution published by the Constitutional Centenary Foundation, copies are available from the FNR (Cost is $15 plus packaging & post, $1.50). This publication includes plain English explanations of what each clause of the Constitution actually means as well as including the Constitution and the Australia Act in full.

Elsewhere in our ‘Model Constitution’ it is intended that there be a statement to the effect that, ‘All power resides with the People’ and that, ’Through this Constitution, the People confer some powers on elected governments’. It is in light of these statements that the role of government should be framed.

14. It is proposed that the wording of our ‘Model Constitution’ under the heading ‘The Legislature’ should be as follows. Please note that, if it is decided Australia should become a republic, the word ‘President’ can be substituted for ‘Governor General’ wherever appearing.

Mining

Land Rights

B. Formulating National Policy on all matters requiring a nation-wide approach including the following. (The difference between this and the preceding list is that implementation of these aspects of our society will be the responsibility of regional parliaments as decided in Task 8.)

Births, Deaths and Marriages New Technology

Family Law Civil Aviation

Criminal Law Human Rights Trade and Commerce Policing

Civil Aviation Road Law Restrictive trade practices

Social Welfare Manufacture

Health Agriculture

Mental Health Insurance

Aged Care Superannuation

Education Employment

The Judiciary Prisons

Accident compensation and rehabilitation

Sickness and hospital benefits.”

 

18. “The House of Representatives, subject to this Constitution, has the following powers:

To initiate, pass, review, repeal, amend and implement legislation for the peace, order and good governance of the Commonwealth. Such legislation is to be passed to the Senate for review.

To manage government expenditure and to forward direct to the Governor General for his signature legislation allocating expenditure to various activities.

To forward direct to the Governor General for his signature legislation twice rejected by the Senate.

To recommend to the Governor General, through the Senate, the establishment of such offices and departments as deemed necessary to further the good governance of the Commonwealth of Australia.

To recommend to the Governor General, through the Senate, the appointment of persons to head government departments and other government offices.

To recommend to the Governor General, through the Senate, the appointment of persons to the High Court, the Reserve Bank, to the Commonwealth Electoral Commission, to The Public Service Board, the Commonwealth Law Society and to the Australian Electoral Commission.

To recommend to the Governor General, through the Senate, the appointment of persons to be Commonwealth Ombudsmen.

The House of Representatives has no power to initiate expenditure that will exceed revenue.”

 

“Proceedings of the House of Representatives, subject to this Constitution, shall be as follows.

The House of Representatives shall sit on 12 of the first 20 days of each calendar month.

On at least four additional days per calendar month Members of the House of Representatives shall sit with their respective Regional Parliaments.

The Chairman (Speaker) of the House and his Deputy shall be permanent public servants appointed by the Governor General on the advice of the Public Service Board.

The Chairman shall be accountable to the Governor General for the efficient functioning of the House.

The first item of business each calendar month shall be a review of the Agenda.

The House will be arranged as a round table forum in which each Member has equal rights to be heard.

Each Member of the House has equal rights to initiate legislation.

Decisions of the House shall be decided on the basis of a two-thirds majority.

Voting in the House of Representatives will be open and published daily.

Proceedings of the House will be open to the public unless closed for specific sessions as approved by the Governor General on the basis of National security.”

 

“The Senate, subject to this Constitution, is hereby tasked:

To review legislation except money bills passed by the House of Representatives (With particular regard to unintended outcomes).

To consult with individual Regions on all legislation passed to the Senate for review.

To return to the House of Representatives legislation with which the Senate does not agree making any recommendations considered necessary.

To pass legislation with which the Senate agrees to the Governor General for signing into law.

To initiate referenda for the amendment of this Constitution.

To review the creation and disbandment of Federal Government Departments and other offices.

To review the appointment of Permanent Heads of Government Departments.

To review the appointment of persons to the High Court, to the Board of the Reserve Bank, to the Public Service Board, to the Commonwealth Law Society and to the Commonwealth Electoral Commission.

To review the appointment of Commonwealth Ombudsmen and other heads of government offices.”

 

“The Senate, subject to this Constitution, has the following powers.

To forward legislation referred by the House of Representatives to the Governor General for his signature.

To return to the House of Representatives legislation to which the Senate does not agree.

To reject appointments recommended by the House of Representatives with which the Senate does not agree.

The Senate has no power over money bills.

The Senate has no power to initiate legislation.”

“The Senate, subject to this Constitution, has the following responsibilities.

To review all legislation passed to it by the House of Representatives and within two calendar months of receipt forward that legislation to the Governor General for his signature or back to the House of Representatives with recommendations for change.

To continually review this Constitution with a view to keeping it current.

To review government appointments with a view to ensuring the best available persons are appointed.”

“Proceedings of the Senate, subject to this Constitution, shall be as follows.

The Senate shall sit (in committee or plenary session) on 12 days of each calendar month.

On at least four additional days per calendar month Senators shall sit with their respective Regional Parliaments.

The Chairman of the Senate and his deputy shall be Permanent Public Servants appointed by the Governor General on the advice of the Public Service Board.

The Chairman of the Senate shall be accountable to the Governor General for the efficient operation of the Senate.

The first item of business each calendar month shall be a review of the agenda.

The Senate will be arranged as a round table forum.

Each Senator shall have equal rights to be heard.

Decisions of the Senate shall be decided on the basis of a two-thirds majority.

Voting in the Senate will be open and published daily.

Senate proceedings both plenary and committee shall be open to the public unless closed for specific reasons approved by the Governor General on the basis of Nation security.”

 

 

Paragraphs 15 - 23 above are a proposal on the wording of some Sections of the ‘Model Constitution’ dealing with the National Parliament. Although the above proposal includes many of your responses to earlier Tasks, the above proposal is still very much a first draft. Your views on what is included and what has been forgotten are very much needed. And no doubt there will be many additions and subtractions as we work our way through the Constitution.

Some might argue that the proposals outlined above are too prescriptive and / or are in more detail than should be included in a constitution. My argument is that, firstly, a democratic society has the right to say how they will be governed. Secondly, the alternative to including this much detail in the constitution is to allow the politicians to make the rules and to change those rules from time to time to suit themselves. Furthermore, our constitution must be a prescription for the sort of society we would like to live in, and the way in which we would like to be governed ‘if only we could start from scratch’. It is only by including all this detail in our draft constitution that other people will be able to see exactly the sort of society we have in mind. In later reviews of our draft constitution we may well decide to modify, add to or remove some of this detail.

You are asked in this Task to review the above proposal and to recommend any amendments considered necessary. In particular, you are asked to answer yes or no to the following questions.

Ques 1. Do you agree that the adversarial arrangement and the adversarial conduct of business in our Houses of Parliament should be replaced by a cooperative approach in a round-table arrangement?

Ques 2. Do you agree to the retention of the Senate as a house of review?

Ques 3. Do you agree that the House of Representatives should be responsible for the day to day running of the country and that, therefore, the Senate should have no power over ‘money bills’?

Ques 4. Do you agree that the House of Representatives should be required to operate within the constraints of the revenue collected?

Ques 5. Do you agree that any decision to run the nation into debt should be the subject of a referendum?

Ques 6. Do you agree that, to avoid deadlock, the House of Representatives be empowered to forward bills twice rejected by the Senate direct to the Governor General to be signed into law?

Ques 7. Do you agree that decisions in our Houses of Parliament be decided on the basis of a two-thirds majority instead of simply 51%?

Ques 8. Do you agree that the People are entitled to be kept informed of how their representative votes on issues put before the House?

Ques 9. Do you agree that our Houses of Parliament should be open to the public except when a closed session is approved by the Governor General on the grounds of National security?

Ques 10. Do you agree that the Senate have no powers to initiate legislation but should concentrate on reviewing Bills passed by the House of Representatives with particular emphasis on detecting and obviating unintended outcomes?

Ques 11. Do you agree that the People rather than the politicians themselves should stipulate when and for how long our Houses of Parliament should sit?

Your response by the end of October 2002 would be much appreciated.

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Last updated: 3 May 2006