Bills Digest No. 207  1998-99 Constitution Alteration (Establishment of Republic) Bill 1999


Numerical Index | Alphabetical Index

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

Passage History

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

  1. 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.

  2. '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.

  3. '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.

  4. '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.

  5. House of Representatives, Hansard, 31 May 1999, pp. 4516-4517.

  6. Ibid, p. 4517.

  7. 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.

  8. Report of the Constitution Convention, Old Parliament House, 2-13 February 1998, volumes 1-4, 1998.

  9. 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.

  10. Constitutional Commission, Final Report, AGPS, Canberra 1988, vol 1, p. 311.

  11. The Hon Michael Lavarch, ANU Seminar Series 'The Republic: What Next?' Monday 20 April 1998.

  12. 1999 Referendum Exposure Draft Bills, Constitutional Centenary Foundation, 15 April 1999, p. 4.

  13. Quoting Ted Mack, 'Giving Power To The People' Sydney Morning Herald, 24 November 1998 p. 15.

  14. Albert Langer 'Confound their politics', 6 March 1998,

    http://www.neither.apana.org.au/vote_no/confound.htm, p. 4.

  15. Senate Hansard 20 April 1999, p. 3855.

  16. Ian Ireland and Joanna Longley, 'Dismissing a President', IRS Research Note No. 8 1998-99, 24 November 1997.

  17. Senate Hansard 20 April 1999 3855.

  18. George Williams, 'Detours on the road to a republic' Sydney Morning Herald, Thursday June 17, 1999 p. 19.

  19. Ibid.

  20. 1999 Referendum Exposure Draft Bills, Constitutional Centenary Foundation, 15 April 1999, p. 10.

  21. 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.

Contact Officer and Copyright Details

Kirsty Magarey
28 June 1999
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

IRS staff are available to discuss the paper's contents with Senators and Members
and their staff but not with members of the public.

ISSN 1328-8091
© Commonwealth of Australia 1999

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Published by the Department of the Parliamentary Library, 1999.

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