New Section 58

What it means

When a proposed law passed by both Houses of the Parliament is presented to the President for assent, the President shall, according to the President's discretion but subject to this Constitution, assent to the law or withhold assent.

Because the first paragraph of this section is subject to the Constitution, the requirements of the last paragraph of Section 59 - which requires that the President shall act on the advice (currently not applicable to the Governor-General) of the Federal Executive Council, The Prime Minister or another Minister - could mean that the President will have to assent to the law if told to do so.

In other words, the President could be powerless to withhold assent to any law that was unconstitutional.

Recommendations by President

The President may return to the House in which it originated any proposed law so presented, and may transmit therewith any amendments which the President may recommend, and the Houses may deal with the recommendation.

The executive power of the Commonwealth is vested in the President, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth. The President shall be the head of state of the Commonwealth.

The change here is subtle. While the Governor-General acts, by convention, on the advice of the Federal Executive Council, he/she is not constitutionally required to do so. By requiring the President to constitutionally act on the advice of the Federal Executive Council makes for a shift of powers in favour of the Prime Minister and Cabinet effectively muting the umpire's whistle.

Additionally, by requiring the President to constitutionally act on either the Prime Minister's or any Minister's advice means that either the Prime Minister or a Minister could act unilaterally without consultation with the Federal Executive Council. This change is exacerbated given that the Constitution will not provide for a minimum number of members that make up the Federal Executive Council. Accordingly, the Federal Executive Council could consist of only one minister; a precedent of 2 ministers was set at the beginning of the Whitlam government.

There shall be a Federal Executive Council to advise the President in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the President and sworn as Executive Councillors, and shall hold office during the pleasure of the President.

The President shall act on the advice of the Federal Executive Council, the Prime Minister or another Minister of State; but the President may exercise a power that was a reserve power of the Governor-General in accordance with the constitutional conventions relating to the exercise of that power.

After considering the report of a committee established and operating as the Parliament provides to invite and consider nominations for appointment as President, the Prime Minister may, in a joint sitting of the members of the Senate and the House of Representatives, move that a named Australian citizen be chosen as the President.

The phrase "a committee established and operating as the Parliament provides" is the only time the Nominations Committee is mentioned in the republican constitution. The structure and mechanics of the presidential nominations committee will be contained in an ordinary Act of the Parliament. You can download a PDF copy of the Presidential Nominations Committee Bill.

The Attorney-General, Daryl Williams, introduced this Bill into the Parliament on 10 June 1999 which is now in its second reading. Mr Williams stated that 'the government does not propose that this bill be passed before the outcome of the referendum is known.'

By not entrenching the presidential nominations committee bill details in the Constitution itself means that the people will be giving more powers to the politicians. For example, the Parliament could repeal or amend this Bill at any time once Royal assent has been given to the republic Bill without reference to the people whatsoever. What may be in the Bill now may not be there after referendum day!

Indeed, any involvement of the people in the process could also be easily eliminated in the future.

If the Prime Minister's motion is seconded by the leader of the Opposition in the House of Representatives, and affirmed by a two-thirds majority of the total number of the members of the Senate and the House of Representatives, the named Australian citizen is chosen as the President.

The person named in the Prime Minister's motion is qualified to be chosen as President if, when the motion is moved and affirmed:

1. the person is qualified to be, and capable of being chosen as, a member of the House of Representatives; and
   
   
2. the person is not a member of the Commonwealth Parliament or a State Parliament or Territory legislature, or a member of a political party.

The actions of a person otherwise duly chosen as President under this section are not invalidated only because the person was not qualified to be chosen as President.

When both houses of Parliament affirm the appointment of a president, it actually means that the politicians will be casting a vote. To do so invokes a parliamentary collegiate process thereby conferring political status on the president.

Additionally, there is no provision in the Constitution should a two-thirds majority of the parliament not be attained.

Each person chosen as President shall, before the term of office begins, make and subscribe before a Justice of the High Court an oath or affirmation of office in the form set forth in Schedule 1 to this Constitution.

The Prime Minister may, by instrument signed by the Prime Minister, remove the President with effect immediately.

Whereas the Prime Minister currently has to advise the Queen of Australia to withdraw the Governor-General's commission (or advise the Queen of Australia to issue a new commission for the appointment of a new Governor-General) to remove a Governor-General, the Prime Minister is unable to remove a Governor-General immediately. Therefore, there would be some delay, albeit of an unknown period, to effect this procedure. In a republic, the Prime Minister could remove the President immediately. It should be noted here that the Prime Minister cannot remove the Queen of Australia.

A Prime Minister who removes a President must seek the approval of the House of Representatives for the removal of the President within thirty days after the removal, unless:

(i) within that period, the House expires or is dissolved; or

(ii) before the removal, the House had expired or been dissolved, but a general election of members of the House had not taken place.

The failure of the House of Representatives to approve the removal of the President does not operate to reinstate the President who was removed.

What is not clear is what would transpire if the House of Representatives does not approve of the Prime Minister's actions. Also, and because the Senate is not involved, the checks and balances in the removal are less rigid than for the election of a President!

Until the Parliament otherwise provides, the longest-serving State Governor available shall act as President if the office of President falls vacant. A State Governor is not available if the Governor has been removed (as acting President) by the current Prime Minister under section 62.

This section has three paragraphs that commence with the phrase "Until the Parliament otherwise provides."

This means that the provision in each of these paragraphs will be the law until such time the Parliament provides for some other law. In other words, it is a subtle handing over of powers to the politicians. For example, the first paragraph states 'that the longest-serving State Governor available shall act as President if the office of President falls vacant.' This is what the politicians will want us to believe will always be the case, but because the Parliament can provide otherwise, the politicians can change the procedure by implementing another law without reference to the people.

Until the Parliament otherwise provides, the Prime Minister may appoint the longest-serving State Governor available to act as President for any period, or part of a period, during which the President is incapacitated.

The provisions of this Constitution relating to the President, other than sections 60 and 61, extend and apply to any person acting as President.

Until the Parliament otherwise provides, the President may appoint any person, or any persons jointly or severally, to be the President's deputy or deputies, and in that capacity to exercise during the pleasure of the President (including while the President is absent from Australia) such powers and functions of the President as the President thinks fit to assign to such deputy or deputies.

The third paragraph of this section states that sections 60 and 61 do not apply to the person acting as President.

Section 60 states:

The person named in the Prime Minister's motion is qualified to be chosen as President if, when the motion is moved and affirmed:

1. the person is qualified to be, and capable of being chosen as, a member of the House of Representatives; and
   
   
2. the person is not a member of the Commonwealth Parliament or a State Parliament or Territory legislature, or a member of a political party.

In other words, the person who acts as President does not have to meet the aforementioned requirements because section 60 does not apply.

Accordingly, and because the Parliament can provide for some other person other than longest-serving State Governor to act as President, the parliament could provide almost anyone to act as President including a serving politician or even someone who holds dual nationality or someone who is not even an Australian citizen!

Similar action could also be taken in respect of providing for someone to act as President if the President is incapacitated.

The appointment of such deputy or deputies shall not affect the exercise by the President personally (including while the President is absent from Australia) of any power or function.

A person shall not exercise powers or functions as the acting President unless, in respect of that occasion of acting as President, the person has made and subscribed, before a Justice of the High Court, the President's oath or affirmation of office in the form set forth in Schedule 1 to this Constitution.

A person shall not exercise powers or functions as the President's deputy unless, since being appointed as the President's deputy, the person has made and subscribed, before a Justice of the High Court, the President's oath or affirmation of office in the form set forth in Schedule 1 to this Constitution.

An acting President, or a person exercising powers or functions as the President's deputy, shall receive such allowances as the Parliament fixes.

New Section 70A

What it means

Until the Parliament otherwise provides, but subject to this Constitution, any prerogative enjoyed by the Crown in right of the Commonwealth immediately before the office of Governor-General ceased to exist shall be enjoyed in like manner by the Commonwealth and, in particular, any such prerogative enjoyed by the Governor-General shall be enjoyed by the President.

Because of the phrase 'Until the Parliament otherwise provides", the people will not be asked to ratify any law via s128 of The Constitution that the Parliament may make in respect of the prerogatives enjoyed by the Crown and that will be enjoyed by the Commonwealth and the President in a republic. This is another example of how the people will be alienated from being involved in any ordinary law that may be made by the Parliament that will override this section.

Until the Parliament otherwise provides, the qualifications of a member of the House of Representatives shall be as follows:-

1. He must be of the full age of twenty-one years, and must be an elector entitled to vote at the election of members of the House of Representatives, or a person qualified to become such elector, and must have been for three years at the least a resident within the limits of the Commonwealth as existing at the time when he is chosen:
   
   
2. He must be a subject of the Queen, either natural-born or for at least five years naturalized under a law of the United Kingdom, or of a Colony which has become or becomes a State, or of the Commonwealth, or of a State. The person must be an Australian citizen.

The current subsection (ii) will be repealed and replaced with "the person must be an Australian citizen."

This proposed change has no particular consequence unless the Constitution Alteration (Right to Stand for Parliament-Qualification of Members and Candidates) Bill 1998 currently before the Parliament is put to the people at a referendum. The consequences of this Bill being put to the people and subsequently being passed is detailed in the following section.

This section is also subject to the phrase "Until the Parliament otherwise provides". Accordingly, the Parliament may provide for some other law in respect of the qualifications for members of the House of Representatives and, therefore, Senators and the President without further reference to the people!

44. Any person who - -

1. Is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power: or
   
   
2. Is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer: or
   
   
3. Is an undischarged bankrupt or insolvent: or
   
   
4. Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: or
   Holds any judicial office or any other office that the Parliament from time to time declares to be an office for the purpose of this paragraph: or
   
   
5. Has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons:

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

But sub-section iv. does not apply to the office of any of the Queen's Ministers of State for the Commonwealth, or of any of the Queen's Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen's navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth.

The Constitution Alteration (Right to Stand for Parliament-Qualification of Members and Candidates) Bill 1998 has already been presented and read a first time in the Parliament. The Bill is sponsored by Senator Bob Brown (Greens, Tasmania). You can download a PDF copy of this Bill.

The House of Representatives Standing Committee (The Committee) on Legal and Constitutional Affairs report of July 1997 recommended the following changes to the Constitution:

• delete subsection 44(i)

• insert a new provision requiring candidates and members of parliament to be Australian citizens

• empower parliament to enact legislation determining the grounds of disqualification of members of parliament in relation to foreign allegiance.

If Australia becomes a republic, and if the aforementioned Bill is submitted to the Australian people at a subsequent referendum and it is successful, it would then mean that any person who is an Australian citizen would be capable of being chosen or of sitting as a senator or a member of the House of Representatives. It would NOT preclude anyone who holds either dual or multiple citizenship. This would be contrary to the Australian Republican Movement's requirement that a citizen of another country should not be Australia's head of state!

It is clear from The Committee's report that such a referendum would gather bipartisan support. There is also another problem associated with this proposed change and that is it requires that the people give more powers to the politicians in subsection (iv)!

N.B. New Subsection 44(iv)

In the forthcoming referendum, there will be a proposed amendment to Section 44:

Subsection 44(iv)

Repeal the subsection, substitute:

(iv) holds any office of profit under the Executive Government of the Commonwealth, a State or a Territory, or any pension payable, during the pleasure of the Executive Government of the Commonwealth, out of any of the revenues of the Commonwealth; or

Transitional Provisions

Schedule 3 (Transitional provisions) of the Constitution Alteration (Establishment of Republic) 1999 Bill provides for a new schedule (Number 2) to be added at the end of the Constitution.

Item 5 (dealing with the States) of Schedule 2-Transitional provisions for the establishment of the republic reads:

5. The States

A State that has not altered its laws to sever its links with the Crown by the time the office of Governor-General ceases to exist retains its links with the Crown until it has so altered its laws.

What it means

Section 7 of the Australia Act 1986 states:

Powers and functions of Her Majesty and Governors in respect of States

1. Her Majesty's representative in each State shall be the Governor.
   
   
2. Subject to subsections (3) and (4) below, all powers and functions of Her Majesty in respect of a State are exercisable only by the Governor of the State.
   
   
3. Subsection (2) above does not apply in relation to the power to appoint, and the power to terminate the appointment of, the Governor of a State.
   
   
4. While Her Majesty is personally present in a State, Her Majesty is not precluded from exercising any of Her powers and functions in respect of the State that are the subject of subsection (2) above.
   
   
5. The advice to Her Majesty in relation to the exercise of the powers and functions of Her Majesty in respect of a State shall be tendered by the Premier of the State.

Clearly, for States to become republics in their own right, Section 7 of the Australia Act 1986 will have to be either repealed or amended to allow for a State or States to remove any monarchical references in their own Constitutions.

Section 15 of the Australia Act 1986 details how the Australia Act 1986 and the Statute of Westminster may be amended viz:

Method of repeal or amendment of this Act or Statute of Westminster

1. This Act or the Statute of Westminster 1931, as amended and in force from time to time, in so far as it is part of the law of the Commonwealth, of a State or of a Territory, may be repealed or amended by an Act of the Parliament of the Commonwealth passed at the request or with the concurrence of the Parliaments of all the States and, subject to subsection (3) below, only in that manner.
   
   
2. For the purposes of subsection ( 1 ) above, an Act of the Parliament of the Commonwealth that is repugnant to this Act or the Statute of Westminster 1931, as amended and in force from time to time, or to any provision of this Act or of that Statute as so amended and in force, shall, to the extent of the repugnancy, be deemed an Act to repeal or amend the Act, Statute or provision to which it is repugnant.
   
   
3. Nothing in subsection (1) above limits or prevents the exercise by the Parliament of the Commonwealth of any powers that may be conferred upon that Parliament by any alteration to the Constitution of the Commonwealth made in accordance with section 128 of the Constitution of the Commonwealth after the commencement of this Act.

So where do we go from here? Most people would probably think that nothing would occur in this area until after the referendum on 6 November 1999 to see whether or not Australians want to have a republic at the federal level.

But that is not the case. The Federal Parliament in cohorts with all of the State Parliaments have agreed that each State Parliament enact legislation to request the Federal Parliament to amend the Australia Act 1986 of the Commonwealth as detailed in Schedule 1 below:

SCHEDULE 1 - Australia Act 1986 of the Commonwealth

1. At the end of section 7

Add:

(6) The Parliament of a State may make a law providing that the preceding subsections do not apply to the State.

(7) Upon the coming into effect in a State of a law referred to in subsection (6), this section ceases to apply to the State as provided by that law.

A similar amendment will also be made to the Australia Act 1986 of the Parliament of the United Kingdom (Note: the Statute of Westminster 1931 empowers the Australian Parliament to repeal or amend any Act of the United Kingdom in so far it is the same part of the law of Australia.)

Each State Act commences on a day to be fixed by Proclamation but that day must not be before the day on which the Constitution Alteration (Establishment of Republic) 1999 receives the Royal Assent. In other words, this could not take place before 7 November 1999.

In summary, all the Australian State Parliaments have now passed similar legislation authorising the Australian Parliament to amend the Australia Acts to allow for a State or States to become republics if and only if the republic Bill is passed at the referendum. Although, there is an element of control over the commencement of the procedure to amend the Australia Acts to allow for the States to become republics, it would appear that all of Australia's politicians are quite happy to assume that a republic will be voted in. This action pre-empts any decision that may be made by the people of Australia on 6 November 1999. One wonders how many Australians even know about these parliamentary proceedings; the media haven't told us or have they?

The next step would be for each State to amend its own Constitution. It is generally understood that each State will have to hold its own referendum with the exception of Victoria and Tasmania. The people of Victoria are particularly disenfranchised as the Victorian Parliament acting alone can amend its own Constitution - hardly a democratic process for the new millennium! This seems a good case for each and every Victorian voter to vote "NO" until they get true ownership of their own Constitution.

The Constitution Act consists of a preamble,the first 8 clauses, known as the covering clauses, and Clause 9 (The Constitution itself). This Act is an Act of the Parliament of the United Kingdom.

Several points need to be made about the preamble and the 8 covering clauses and other matters involving ALL of Australia's politicians:

An Act to constitute the Commonwealth of Australia.

[9th July 1900]

WHEREAS the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established:

And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:

Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:--

1. This Act may be cited as the Commonwealth of Australia Constitution Act.

2. The provisions of this Act referring to the Queen shall extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom.

3. It shall be lawful for the Queen, with the advice of the Privy Council, to declare by proclamation that, on and after a day therein appointed, not being later than one year after the passing of this Act, the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, and also, if Her Majesty is satisfied that the people of Western Australia have agreed thereto, of Western Australia, shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia. But the Queen may, at any time after the proclamation, appoint a Governor-General for the Commonwealth.

4. The Commonwealth shall be established, and the Constitution of the Commonwealth shall take effect, on and after the day so appointed. But the Parliaments of the several colonies may at any time after the passing of this Act make any such laws, to come into operation on the day so appointed, as they might have made if the Constitution had taken effect at the passing of this Act.

5. This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen's ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.

6. "The Commonwealth" shall mean the Commonwealth of Australia as established under this Act.

"The States" shall mean such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the northern territory of South Australia, as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called "a State."

"Original States" shall mean such States as are parts of the Commonwealth at its establishment.

7. The Federal Council of Australasia Act, 1885, is hereby repealed, but so as not to affect any laws passed by the Federal Council of Australasia and in force at the establishment of the Commonwealth.

Any such law may be repealed as to any State by the Parliament of the Commonwealth, or as to any colony not being a State by the Parliament thereof.

8. After the passing of this Act the Colonial Boundaries Act, 1895, shall not apply to any colony which becomes a State of the Commonwealth; but the Commonwealth shall be taken to be a self-governing colony for the purposes of that Act.

9. The Constitution of the Commonwealth shall be as follows: - [ The Constitution itself is omitted here because of space reasons ]

Background Information

Constitutional Convention: The Constitutional Convention Communiqué, inter alia, states:

30. The Convention also resolved that the Constitution include a Preamble, noting that the existing Preamble before the Covering Clauses of the Imperial Act which enacted the Australian Constitution (and which itself is not part of our Constitution) would remain intact.

31. Any provisions of the Constitution Act which have continuing force should be moved into the Constitution itself and those which do not should be repealed.

The Preamble: The Preamble question being put to the Australian people at the 6 November referendum is a new preamble and, if approved of by the people, will be inserted after the "Title" in The Constitution itself (Clause 9). It will not replace the preamble at the beginning of the Constitution Act shown opposite.

Clause 1: Clause 1 simply recites the short title of the Act.

Clause 2: If the republic Bill is passed on 6 November, Clause 2 would be redundant.

Clauses 3 and 4: Clauses 3 and 4, dealing with the proclamation and establishment of the Commonwealth, are now spent and, therefore, are no longer relevant.

Clauses 5 and 6: If the republic Bill is passed on 6 November, these clauses would be irrelevant as they would be provided for in the revised Constitution (Sections 126 and 127 respectively). However, there is one omission in respect of New Zealand in Section 127 relating to definitions.

Clause 7: Clause 7, dealing with the Federal Council of Australasia and laws passed by it, no longer has any practical application.

Clause 8: Clause 8, concerning the Imperial Colonial Boundaries Act 1895 is redundant.

Clause 9: Clause 9 contains the Constitution of the Commonwealth (of Australia).

Amendment of the Constitution Act

Because the Constitution Act is an Act of the Parliament of the United Kingdom, the means of amending or repealing that Act are not straightforward. With the enactment of the Statute of Westminster Adoption Act 1942 by the Australian Parliament, the Australian Parliament was empowered, via Section 2(2) of the Statute of Westminster 1931, to repeal or amend any Act of the United Kingdom that is part of the law of Australia.

However, Section 8 of the Statute of Westminster specifically, and sensibly, did not confer any power whatsoever on the Australian Parliament to either repeal or alter the Constitution or the Constitution Act of the Commonwealth of Australia otherwise than in accordance with the law existing before the commencement of the Statute of Westminster Act.

With the enactment of the Australia Act 1986, the Australian Parliament can now repeal or amend either the Australia Act 1986 itself and/or the Statute of Westminster, at the request or with the concurrence of the Parliaments of all the States via Section 15(1) of the Australia Act 1986. Section 51(xxxviii) of the Constitution also provides for the Australian Parliament to exercise any power which can, at the establishment of the Australian Constitution, be exercised only by the Parliament of the United Kingdom.

Accordingly, the Commonwealth Parliament, at the request or with the concurrence of all of the State Parliaments, can now repeal or amend the Australian Constitution and/or the Constitution Act without reference to the Australian people.

Proposed Amendment to the Constitution Act

The Commonwealth Parliament , in cohorts with the States, has already taken steps to make numerous changes to the Constitution Act. Authority for the Government to do this will be undertaken in a similar manner to that to amend the Australia Act 1986 and as outlined above.

Legislation has already been introduced into the Queensland and Victorian Parliaments and is in various stages of process in the other State Parliaments.

The States will be authorising the Commonwealth Parliament to:

(1) amend Section 8 of the Statute of Westminster to add the following at the end of that Section:

• Nothing in this section prevents the amendment of the Commonwealth of Australia Constitution Act by omitting the Preamble or by repealing sections 2 to 8.

(2) amend the Commonwealth of Australia Constitution Act to omit the Preamble and to repeal Sections 2,3,4,5,6,7, and 8.

Arrogance by our Politicians

The proposed actions to amend the Constitution Act by our respective State Parliaments and the Federal Parliament is a total disgrace in that:

1. The Australian people have yet to vote on the republic issue.
   
   

2. The politicians have not sought the peoples' authority to undertake these changes.
   
   

3. The preamble to the Constitution Act will be removed contrary to the Constitutional Convention Communiqué.
   
   

4. Sets a dangerous precedent for the Parliaments of Australia to either amend or repeal the Australian Constitution without the peoples' authority. Politicians would have you believe that they would advise us if they were going to amend or repeal the Constitution without our authority. If that is the case then why have they silently moved to make changes to the Constitution Act without telling us by a significant Australia-wide education campaign?