WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details
Constitution
Alteration (Establishment of Republic) 1999(1)
Date Introduced: 10 June 1999
House: House of Representatives
Portfolio: Attorney-General
Commencement: The formal parts commence on
Royal Assent, the operative Schedules commence at 3pm on 1 January
2001, while the transitional provisions in Schedule 3 also commence
on Royal Assent.
Purpose
To provide
various alterations to the Constitution which would replace the
role of Governor-General with that of a President, and to provide a
method for choosing and dismissing the President.
Background
Recent History and Future Timetable
On 6 November 1999 the Government proposes to
hold a referendum on whether Australia should become a republic.(2)
The Government has said that there would be two questions put to
the electors: one on the proposal for a republic, which will follow
the preferred model which emerged from the 1998 Constitutional
Convention; and one on a new preamble for the Constitution. As at
the time of writing it is uncertain whether the Government will
pursue the question regarding a preamble, however the Constitution
Alteration (Establishment of Republic) 1999 Bill ('the Bill')
represents the Government's legislative representation of the
'bipartisan appointment of the president model' endorsed at the
1998 Constitutional Convention, and this Bill will form the basis
for the question regarding a republic to be put at the
referendum.
This Bill was
released in draft form on 9 March 1999 as part of a legislative
package along with its accompanying Bill, the Presidential
Nominations Committee Bill 1999 (to be explored in a forthcoming
Bills Digest).(3) The two Bills are to be examined by a Joint
Select Committee which is due to report to the Parliament on 9
August 1999.(4)
The Attorney-General has explained that the
tight time line for the Committee is necessary in order that the
referendum can be conducted on 6 November 1999, the Government's
preferred date. In order to meet this deadline the legislation
needs to be finalised by 20 August 1999 'at the very latest.'
In practical terms this means it will need to be
passed by both houses by 12 August, the last scheduled sitting day
before 20 August. The deadline for the passage of the republic bill
arises because the Australian Electoral Commission needs at least
11 weeks to carry out its obligations in relation to distribution
of the official yes and no cases...(5)
The Attorney-General has said that the primary
question the Committee should examine is whether the Bills
represent an adequate legislative implementation of the
Constitutional Convention's resolution adopting the 'bipartisan
appointment of the president' model of a republic, rather than
revisiting the pros and cons of the model itself. The Government
has said that in the drafting of these Bills it has 'resisted calls
to go beyond giving effect to the convention model' and that it has
sought to provide 'as far as is at all possible' a 'safe and
effective expression of the model ... which would preserve our
record of stable parliamentary democracy.'(6)
Constitutional Amendment
The mandatory procedure for amending the
Australian Constitution is set down at section 128 of the
Constitution.
Before it can be put to the people, a referendum
Bill must generally secure an absolute majority in each of the two
Houses of the federal Parliament, although in effect section 128
makes it possible for the Bill to pass only through the House of
Representatives.(7)
To be enacted into law, a referendum proposal
must also secure a 'double majority' from the people: a majority of
all those voting and majority support in a majority of States (four
of the six States).
The detailed mechanisms for conducting federal
referenda are provided for through both legislative and
administrative procedures. The Referendum (Machinery
Provisions) Act 1984 has recently been amended to facilitate
the conduct of Constitutional referenda (see generally Bills
Digest No 139 1998-99-Referendum Legislation Amendment Bill
1999).
The bipartisan appointment of the
president model
The Constitutional Convention considered four
models for a republic
Model A - moved by Dr Geoffrey Gallop MLA
(Direct Election Model)
Model B - moved by the Hon Bill Hayden AC
Model C - moved by the Hon Richard McGarvie
AC
Model D - Dr Lois O'Donoghue CBE, AM (Bipartisan
Appointment of the President)
It was 'Model D' - the bipartisan appointment of
the president model - which was endorsed by in the Constitutional
Convention Communiqué. After an 'exhaustive balloting
process' this model had the support of the majority of delegates
who voted for or against the motion, (73 of the 152 delegates voted
in support of Model D). The model can be found at Appendix A to
this Digest and forms the blueprint for the Government's
legislation.
Further Reading
It is beyond the scope of this Digest to
rehearse the many arguments for and against Australia becoming a
republic, and the many arguments for and against the bipartisan
appointment of the president in a future Australian republic. These
debates have been explored at length both during the Constitutional
Convention(8) and in many scholarly and popular publications.(9) In
particular the Department of the Parliamentary Library has
published a range of materials addressing these questions,
including:
Carolyne Hide, Karen Davis and Ian Ireland, 'The
Recent Republic Debate-A Chronology 1989-1998', IRS Background
Paper No.11 1997-98, 2 February 1998
Anne Twomey and Rosemary Bell, 'Methods of
Choosing a Head of State', IRS Background Paper No.12
1997-98, 23 January 1998
George Williams, 'The 1998 Constitution
Convention - First Impressions', IRS Current Issues Brief No.11
1997-98, 23 March 1998
Ian Ireland and Kirsty Magarey, 'Powers of the
Head of State of Australia and South Africa', IRS Research Note
24 1997-98, 23 January 1998
Ian Ireland and Joanna Longley, 'Dismissing a
President', IRS Research Note No. 8 1998-99, 24 November 1997
Mark McKenna, 'The Need for a new Preamble to
the Australian Constitution and/or a Bill of Rights', IRS
Research Paper No.12 1996-97, 18 March 1997
Susan Downing, 'The Reserve Powers of the
Governor-General' IRS Research Note No 25 1997-98, 23
January 1997
The Constitution Papers, PRS Subject
Collection No 7, 1996-97
Ian Ireland 'Monarchy or Republic? A Comparative
outline of Major Presidential Powers' Background Paper No 18,
1993-94, 30 July 1993
Main Provisions
The Bill is divided into three schedules, with
the first Schedule containing the primary amendments proposed for
the Constitution, the second containing the more minor
consequential changes and the third containing transitional
provisions.
Schedule 1
Items 1 and 2 repeal sections
59 and 60 of the Constitution. Sections 59 and 60 provide for the
Queen to disallow legislation up to a year after the
Governor-General's assent and for Bills to be reserved for assent
by the Queen. Both of these sections are effectively 'dead letters'
and the Constitutional Commission recommended their repeal in
1988.(10)
Item 3 would repeal the first
three sections of Chapter II regarding 'The Executive Government'
and would insert 5 sections (59-63) providing for:
-
- the President to be the head of state of the Commonwealth,
-
- the President's powers, terms of office and removal, and
-
- acting arrangements for the President and his/her
deputies.
Executive power - the power to govern - is
vested (by proposed s. 59) in the President. The
Federal Executive Council is to advise the President and the
President is required to act according to the advice of the
Council, the Prime Minister or 'another Minister of State'. However
proposed s. 59 also recognises that the President
may independently use a power which 'was a reserve power of the
Governor-General'. It stipulates that any use of such a reserve
power must be done in accordance with the constitutional
conventions relating to the exercise of that power (see 'Concluding
Comments' for commentary on the difficulties of interpreting this
section).
Proposed s. 60 provides for the
appointment of a President. Rather than constitutionally
entrenching the initial stages of the process used to select a
President, the proposed section gives the Parliament power to make
relevant provisions. The legislative provisions currently proposed
are found in the Presidential Nominations Committee Bill 1999. The
constitutional provisions would simply require the Prime Minister
to consider the report of a committee regarding nominations for
appointment before putting forward a nomination for President. In
order to effect the selection of the President, proposed s.
60 would then require the leader of the Opposition in the
House of Representatives to second the Prime Minister's nomination
and would require the President's nomination to be passed by a
two-thirds majority of members and senators at a joint sitting.
There are additional constitutional criteria imposed on the
aspirant to the Presidency, who should be qualified and capable of
being chosen as a member of the House of Representatives, and must
not be a member of an Australian parliament or a member of a
political party. A saving clause is proposed for the actions of a
President who may not have met these additional criteria.
Provisions are also made requiring the President to be sworn in by
a Justice of the High Court.
Proposed section 61 provides
that the term of the President's office should be five years,
although it does not make this term binding, since it allows a
President to continue in office past this time limit. It also
allows a person to serve more than one term as President. If there
is a President in office then they continue in office until a new
President comes into office or until they resign or are dismissed
under proposed section 62. There is no explicit
requirement that the Prime Minister make a new appointment, however
if the position of President falls vacant then proposed
section 63 provides that the longest-serving State
Governor 'available' shall act as President. Proposed
section 63 also makes provisions for the President or the
Parliament to appoint deputies and for them to act as the
President.
Proposed section 62 is likely
to be the most controversial of all the proposed changes. This
proposed section allows the Prime Minister to remove the President
with instant effect by an instrument signed by the Prime Minister.
While the proposed section goes on to require that the Prime
Minister seek the approval of the House of Representatives for this
action there is no sanction should this requirement not be
satisfied. Furthermore the failure of the House of Representatives
to approve the removal of the President does not operate to
reinstate the President (see 'Concluding Comments').
Item 4 would insert a new
section - proposed section 70A. This proposed
section provides that crown prerogative continues in the
Commonwealth, and that the prerogatives of the Governor-General are
to belong to the President.
The new oaths and affirmations provided for in
item 5 are straightforward and differ only
slightly from the texts recommended by the Convention
Communiqué (see Appendix B). The new oath/affirmation for
Members of Parliament changes the commitment of allegiance
currently made to the Monarch to a commitment of allegiance to the
Commonwealth of Australia and the Australian people. The President
makes a similar commitment of allegiance, with an additional
component regarding respect for the Australian people's 'rights and
liberties' and an additional commitment to act 'without fear or
favour'.
Schedule 2
Schedule 2 contains numerous consequential
amendments to the text of the Constitution which:
-
- replace references to the 'Queen' and 'Governor-General' with
references to the 'President', (items 2, 4, 7, 13, 14, 16,
21, 23-25, 27, 28, 32, 37 and 42).
-
- delete redundant references to the Governor-General, Queen or
Crown (items 3, 18, 19, 20, 22, 29, 40 and
43).
-
- change references to 'subjects of the Queen' to references to
'Australian citizens' (items 15, 38 and 39)
-
- distinguish references to the President of the Senate from
references to the President of the Commonwealth (items 5,
6, 8-12)
-
- replace references to 'the Schedule' with references which
recognise a new Schedule (the Schedule of transitional provisions)
(items 1 & 17) and
-
- update sections, delete references which have become redundant
or make extensions to the transfer of powers from the
Governor-General to the President (items 26, 30, 31, 35,
36).
Item 34 would remove references
to appeals to the Privy Council (these appeals ended in 1986,
although there's still theoretical possibilities that the High
Court could grant a certificate to appeal), while item
33 removes a redundant reference to this appeal process in
section 73 and inserts a provision specifying that Parliament can
determine the conditions under which appeals from the Supreme
Courts can go to the High Court.
Item 41 proposes the insertion
of two new sections, parts of which are akin to the remaining
sections of relevance in the covering clauses of the Constitution
Act (UK). Proposed section 126 would make the
Constitution binding on the courts and people of the Commonwealth
(currently clause 5 of the UK Act) and proposed section
127 inserts some definitions, including a definition of
'original States' (NSW, Qld, Tas, Vic, WA and SA) and 'the States'
which may include territories admitted into or established by the
Commonwealth as States (currently clause 6 of the UK Act, with the
omission of the previously acknowledged possibility of admitting
New Zealand as a State).
Schedule 3
This Schedule generally deals with the orderly
transition to the new system of governance, such as providing for
the end of the office of Governor-General (item
1), the commencement of the first President's term of
office (item 2) and the preservation of the powers
of Parliament during the transitional period. The most significant
provision of this Schedule is item 5, which
protects the right of States to maintain a link with the Crown. The
Constitutional Convention acknowledged that, while it was desirable
for all of Australia to move to a republic at the same time, this
should not impinge on the autonomy of the States, even if this
means some States retain their links with the Crown for some
time.
Concluding Comments
There are areas of ambiguity and imprecision in
the suggested constitutional changes, although these are not
necessarily any greater than those already in existence. The
provisions made regarding the 'reserve powers' which belonged to
the Governor-General and which will pass on to the President is one
such area. The difficulty of defining the constitutional
conventions for the use of the reserve powers is significant. So
difficult, in fact, that the supporters of the bipartisan
appointment of the president model for a republic advocated that
they should not necessarily be written down. Michael Lavarch, a
former Attorney-General, has commented on the lack of support for
the proposal to codify the Head of State's powers, summing up the
difficulties by commenting that '[i]t is not likely to be a matter
of concensus.'(11) Furthermore the Constitutional Centenary
Foundation has pointed out that, by introducing a reference to the
need for the President to comply with the conventions governing the
use of the reserve powers, these conventions could become the
subject of judicial inquiry(12) - a difficult proposition given the
degree of uncertainty surrounding these so-called conventions.
There has been disquiet concerned regarding the
differences between the recommendations made by the Constitutional
Convention on the question of how the Prime Minister can remove the
President and the Bill's implementation of these provisions. The
Convention specified that '[t]he vote of the House would constitute
a vote of no confidence in the Prime Minister' whereas the
Government has chosen not to include provisions enshrining this
consequence for the Prime Minister who dismisses a President - an
action which could conceivably not have the support of the majority
in the House of Representatives.
According to Mr Ted Mack, quoting Mr Harry
Evans, the Clerk of the Senate, the bipartisan model of appointing
and dismissing the President
is like a cricket match where the players
appoint the umpire. It would allow the captain of the team which is
ahead on the scoreboard to change the umpire in the middle of the
game. And a captain who thinks that he is about to be sent off
would have a great incentive to strike first.(13)
Other sporting analogies have also been made to
potential stand offs between the President and Prime Minister,
including one which likens them to duellists with pens at the
ready.(14)
Senator Brown has raised the dismissal issue in
a question to the Special Minister of State, asking whether there
is 'any other country on earth which gives this power to a prime
ministerial equivalent? Is there anywhere on earth where the
president will be so vulnerable and potentially miserable?' and
again 'can the minister cite one country anywhere on earth which
makes a president so vulnerable to a prime minister that he can be
dismissed on a simple written note by the prime minister with no
redress and no avenue for his restitution to office?'(15)
An answer to Senator Brown's questions may be
that the proposed dismissal procedure for the Governor-General or
President in the referendum is:
unusual, even remarkable, when compared with the
procedures of other nations. It is, for example, the only model
which does not provide grounds for dismissal, or require that
reasons be given. Moreover, there is no other precedent among
republic dismissal models for Prime Ministerial removal of the
President.(16)
Senator Ellison's response to Senator Brown
included an assertion that the Prime Minister's power to dismiss
the Governor-General is currently the de facto equivalent of the
proposed power to dismiss the President and that, with respect to
the Government's decision to depart from the Constitutional
Convention's preferred model:
However, it is a matter of fact that you would
get political reality that would flow from that: you could well
have a resignation by the Prime Minister; you could have the acting
president remove the Prime Minister for an act of dismissal which
was not supported by the House of Representatives. So the
government is of a view that there is enough political sanction
there to affect any vote by the House of Representatives which
would overrule the Prime Minister's dismissal of the
president.(17)
Mr George Williams, an academic and lawyer, has
raised another concern regarding differences between the provisions
of the Bill and the recommendations of the Convention.(18) He
argues that the clause prohibiting members of a political party
from becoming President (proposed section 60) is
too broad. The Convention did specify that '[t]he head of state
should not be a member of any political party,' however the
prohibition as established in the Bill may go further than this and
prevent nominations of members of political parties.
Mr Williams has also raised a question regarding
the adequacy of the provisions for the States to move to republican
status. He has suggested that the current arrangements could impose
an anticlimactic and costly series of State referendums which could
have been avoided with better drafting.(19)
Within the context of the fundamental change
being wrought by the Bill, the changes proposed are nevertheless as
minimalist as possible. The Constitutional Centenary Foundation has
commented regarding the consequential changes made in Schedule 2
that '[t]here are still many outmoded and expended provisions to be
removed' and that the need for a further review is apparent.(20)
The Foundation also suggests that the replacement of the reference
to 'subjects of the Queen' with 'Australian citizen' in the section
preventing discrimination against these people on the basis of
State residence (section 117) opens up a question as to whether the
benefits of a section of this kind should be restricted to
'citizens' as opposed to 'people more generally.'(21) However,
apart from the well rehearsed questions raised by the method of
dismissal and the method of selection, this would seem to be one of
the few genuinely novel questions that have been raised by this
legislative proposal for change to the Constitution.
Endnotes
-
- In accordance with tradition the short title of the Bill does
not contain the word 'Bill'. This reflects the fact that it is a
proposal for constitutional alteration rather than a standard Bill.
- 'Republic legislation: timing and processes' Joint Press
Release, Attorney-General, The Hon. Daryl Williams AM QC MP,
Special Minister of State and Senator the Hon. Chris Ellison, 21
May 1999.
- 'Draft legislation for a referendum on an Australian republic'
Joint Press Release, Attorney-General, The Hon. Daryl Williams AM
QC MP, Special Minister of State and Senator the Hon. Chris
Ellison, 9 March 1999.
- 'Establishment of a joint select committee on the republic
legislation' Joint Press Release, Attorney-General, The Hon. Daryl
Williams AM QC MP, Special Minister of State and Senator the Hon.
Chris Ellison, 26 May 1999.
- House of Representatives, Hansard, 31 May 1999, pp.
4516-4517.
- Ibid, p. 4517.
- While section 128 does also recognise that the referendum
proposal could be put to the people when the Bill has been passed
through either one of the houses, for reasons of convention, ie
that the Governor-General will only act on the advice of his
Ministers (as in 1914), the Senate does not have an effective
option of pushing ahead with a referendum proposal in this way.
- Report of the Constitution Convention, Old Parliament
House, 2-13 February 1998, volumes 1-4, 1998.
- See for instance, articles collected in the thematic issue of
the University of New South Wales Law Journal: 'The 1998
Constitutional Convention: an Experiment in Popular Reform'; and
Steve Vizard, Two Weeks in Lilliput, Bear-baiting and
Backbiting at the Constitutional Convention, Penguin 1998.
- Constitutional Commission, Final Report, AGPS,
Canberra 1988, vol 1, p. 311.
- The Hon Michael Lavarch, ANU Seminar Series 'The Republic: What
Next?' Monday 20 April 1998.
- 1999 Referendum Exposure Draft Bills, Constitutional
Centenary Foundation, 15 April 1999, p. 4.
- Quoting Ted Mack, 'Giving Power To The People' Sydney
Morning Herald, 24 November 1998 p. 15.
- Albert Langer 'Confound their politics', 6 March 1998,
http://www.neither.apana.org.au/vote_no/confound.htm, p. 4.
- Senate Hansard 20 April 1999, p. 3855.
- Ian Ireland and Joanna Longley, 'Dismissing a President',
IRS Research Note No. 8 1998-99, 24 November 1997.
- Senate Hansard 20 April 1999 3855.
- George Williams, 'Detours on the road to a republic' Sydney
Morning Herald, Thursday June 17, 1999 p. 19.
- Ibid.
- 1999 Referendum Exposure Draft Bills, Constitutional
Centenary Foundation, 15 April 1999, p. 10.
- Ibid, p. 9.
Appendix A: Bipartisan Appointment of the President
Model (Model D)
Nomination Procedure
The objective of the nomination process is to
ensure that the Australian people are consulted as thoroughly as
possible. This process of consultation shall involve the whole
community, including:
State and Territory Parliaments;
local government;
community organisations, and
individual members of the public
all of whom should be invited to provide
nominations.
Parliament shall establish a Committee which
will have responsibility for considering the nominations for the
position of President. The Committee shall report to the Prime
Minister.
While recognising the need for the Committee to
be of a workable size, its composition should have a balance
between parliamentary (including representatives of all parties
with party status in the Commonwealth Parliament) and community
membership and take into account so far as practicable
considerations of federalism, gender, age and cultural
diversity.
The Committee should be mindful of community
diversity in the compilation of a short-list of candidates for
consideration by the Prime Minister.
This process for community consultation and
evaluation of nominations is likely to evolve with experience and
is best dealt with by ordinary legislation or parliamentary
resolution; and
The Committee should not disclose any nomination
without the consent of the nominee.
Appointment or Election Procedure
Having taken into account the report of the
Committee, the Prime Minister shall present a single nomination for
the office of President, seconded by the Leader of the Opposition,
for approval by a Joint Sitting of both Houses of the Federal
Parliament. A two thirds majority will be required to approve the
nomination.
Dismissal Procedure
The President may be removed at any time by a
notice in writing signed by the Prime Minister. The President is
removed immediately the Prime Minister's written notice is issued.
The Prime Minister's action must be presented to a meeting of the
House of Representatives for the purpose of its ratification within
30 days of the date of removal of the President. In the event the
House of Representatives does not ratify the Prime Minister's
action, the President would not be restored to office, but would be
eligible for re-appointment. The vote of the House would constitute
a vote of no confidence in the Prime Minister.
Definition of Powers
The powers of the President shall be the same as
those currently exercised by the Governor-General.
To that end, the Convention recommends that the
Parliament consider:
the non-reserve powers (those exercised in
accordance with ministerial advice) being spelled out so far as
practicable; and
a statement that the reserve powers and the
conventions relating to their exercise continue to exist.
Qualifications for Office
Australian citizen, qualified to be a member of
the House of Representatives (see s. 44 Constitution).
Term of Office
Five years.
Appendix B: Convention Communiqué (section on
oaths and affirmations)
The head of state should swear or affirm an oath
of allegiance and an oath of office,
The oath or allegiance might appropriately be
modelled on that provided by the Australian Citizenship Act
1948 as follows:
[Under God] I pledge my loyalty to Australia and
its people, whose democratic beliefs I share, whose rights and
liberties I respect and whose laws I will uphold and obey.
The oath [or affirmation] of office might
appropriately be modelled on the following words:
I swear, humbly relying on the blessing of
Almighty God, [or, I do solemnly and sincerely affirm and declare]
that I will give my undivided loyalty to and will well and truly
serve the Commonwealth of Australia and all its people according to
law in the office of the President of the Commonwealth of
Australia, and I will do right to all manner of people after the
laws and usages of the Commonwealth of Australia without fear or
favour, affection or ill will
or
I swear [or affirm] that I will be loyal to and
serve Australia and all its people according to law without fear or
favour.
Kirsty Magarey
28 June 1999
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ISSN 1328-8091
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