Appendices

Model 4 (People elect the President)

In this model we have used the approach suggested in the RAC Report to codify the reserve powers. In reality this means that they are almost entirely eliminated. The only circumstances in which the President can sack a Prime Minister who commands a parliamentary majority are where the Prime Minister has been found by a court to be persisting in a breach of the constitution and refuses to desist from that breach.

This would mean, in a case of the Senate blocking supply, that the Prime Minister could not be sacked unless the Prime Minister had been found by the High Court to be spending money which had not been lawfully appropriated and the Prime Minister refused to cease his constitutional breach. Such a scenario is almost beyond imagination; the political process would long before have dispatched the Prime Minister concerned; but the amendments below cater for it.

59A Executive power

1. The executive power of the Commonwealth is vested in the President, and is exercisable either directly or through Ministers of State (including the Prime Minister) or persons acting with their authority.
2. The executive power of the Commonwealth extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.
3. The President shall be the head of state of the Commonwealth
4. The President shall exercise his powers and functions in accordance with the advice tendered to him by the Federal Executive Council, the Prime Minister, or such other Ministers of State as are authorized to do so by the Prime Minister.
5. Subsection (4) does not apply in relation to the exercise of the powers or functions of the President under Sections 59B, 59C(4), 59D, 59E and 59F.
6. 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.

Section 59B simply restates the current convention that the Prime Minister is the person who has the confidence of the House of Representatives.

59B Appointment of the Prime Minister

1. The President shall appoint a person, to be known as the Prime Minister, to be the Head of the Government of the Commonwealth.
2. Subject to subsection 59C(4), whenever it is necessary for the President to appoint a Prime Minister, the President shall appoint that person who commands the support of the House of Representatives expressed through a resolution of the House, and in the absence of such a resolution, the person who, in his judgement, is most likely to command the support of that House.
3. The Prime Minister shall not hold office for a longer period than 90 days unless he becomes a member of the House of Representatives.
4. The Prime Minister shall be a member of the Federal Executive Council and shall be one of the Ministers of State for the Commonwealth.
5. The Prime Minister shall hold office, subject to this Constitution, until he dies or resigns, or the President terminates his appointment.
6. The exercise of a power of the President under subsection (2) shall not be examined in any Court.
   

Section 59C again restates current convention.

59C Appointment of Ministers

1. Ministers of State shall be appointed by the President acting in accordance with the advice of the Prime Minister.
2. One of the Ministers of State may be denominated Deputy Prime Minister.
3. Subject to this section, the President shall only remove a Minister from office in accordance with the advice of the Prime Minister.
4. Upon the death of the Prime Minister, the President shall appoint the Deputy Prime Minister, or if there is no Deputy Prime Minister, the Minister most senior in rank, to be the Prime Minister.
5. In this section "Minister" does not include the Prime Minister.

Section 59D is a complex section, but is designed once again to mirror existing convention. In short, if a Prime Minister loses a vote of confidence in the House and the House then expresses confidence in another person, the Prime Minister must resign and if he does not he will be removed by the President. If the House simply passes a no confidence motion in the Prime Minister but fails to express confidence in another person, the Prime Minister will be removed unless within three days he resigns, secures a reversal of the no confidence resolution or calls an election.

A difficult issue arises with no confidence motions that are not carried by an absolute majority. This may be because a number of government members are sick, or away from the House. In this case the Prime Minister has seven days to secure a reversal; presumably long enough to summon his wandering supporters back to Canberra.

59D Dismissal of the Prime Minister - No Confidence Motions

1. If the House of Representatives, by an absolute majority of its members, passes a resoluton of confidence in a named person as Prime Minister (other than the person already holding office as Prime Minister), and the Prime Minister does not forthwith resign from office, the President shall remove him or her from office.
2. If the House of Representatives passes, other than by an absolute majority of its members, a resolution of confidence in a named person as Prime Minister (other than the person already holding office as Prime Minister) and the Prime Minister does not within three days resign from office or secure a reversal of that resolution, the President shall remove him from office
3. If the House of Representatives passes a resolution of no confidence in the Prime Minister or the Government by an absolute majority of its members and does not name another person in whom it does have confidence, and the Prime Minister does not within three days of the passing of that resolution, either resign from office, secure a reversal of that resolution or advise the President to dissolve the Parliament, the President shall remove him from the office of Prime Minister.
4. If the House of Representatives passes a resolution of no confidence in the Prime Minister or the Government other than by an absolute majority of its members and does not name another person in whom it does have confidence, and the Prime Minister does not, within seven days of the passing of that resolution, either resign from office, secure a reversal of that resolution or advise the President to dissolve the Parliament, the President shall remove him from the office of Prime Minister.

Section 59E is an innovation, designed to retain but limit the Governor General's current power to "defend the Constitution". There is, it should be noted, a very strong argument that a Governor General should not dismiss a Prime Minister for breaching the Constitution or the law unless and until that breach is both declared to be such by a Court and is continuing. When the NSW Governor, Sir Philip Game, dismissed Premier Jack Lang in 1932 he did so because Lang was defying recently enacted Commonwealth banking regulations. The Dominions Office in London had sent advice (too late as it turned out) instructing Game to stay his hand until the legality of Lang's conduct had been determined by a court.

59E Dismissal of the Prime Minister - Constitutional Contravention

1. If the President believes that the Government of the Commonwealth is contravening a fundamental provision of this Constitution or is not complying with an order of a court, the President may request the Prime Minister to demonstrate that no contravention is occurring or that the Government is complying with the order.
2. If, after giving the Prime Minister that opportunity, the President still believes that such a contravention or non-compliance is occurring, the President may apply to the High Court for relief.
3. If, on application by the President, the High Court is satisfied that the Government of the Commonwealth is contravening a provision of this Constitution or not complying with the order of a court, the High Court may grant such relief as it sees fit including a declaration to that effect. The High Court shall not decline to hear such application on the ground that it raises non-justiciable issues.
4. If, on an application of the President, the High Court declares that the Government of the Commonwealth is contravening this Constitution or not complying with the order of a court and the Prime Minister fails to take all reasonable steps to end the contravention or to ensure compliance with the order, the President may dissolve the House of Representatives.
5. If the President dissolves the House of Representatives under this section, he may also terminate the Prime Minister's commission and appoint as Prime Minister such other person who the President believes will take all reasonable steps to end the contravention and who will maintain the administration of the Commonwealth pending the outcome of the general election following the dissolution referred to in subsection (4) above.
6. The exercise of the powers of the President under this section shall not be examined by any court.
   

Section 59F attempts to codify existing convention with respect to refusing a dissolution of Parliament.

59F Refusal of Dissolution

The President shall not dissolve the House of Representatives -

(a) on the advice of a Prime Minister in whom, or in whose Government, the House of Representatives has passed a resolution of no confidence, if the House has by an absolute majority also expressed confidence in another named person as Prime Minister;
(b) on the advice of a Prime Minister in whom, or in whose Government, the House of Representatives has passed a resolution of no confidence, if the House has, other than by an absolute majority of its members, also expressed confidence in another named person as Prime Minister, unless the House has reversed the resolution;
(c) while a motion of no-confidence in the Prime Minister or the Government is pending; or
(d) before the House of Representatives has met after a general election and considered whether it has confidence in the Prime Minister or the Government, unless the House of Representatives has met and is unable to elect a Speaker.

For the purpose of paragraph (c), a "motion of no confidence" is one which expresses confidence in another named person as Prime Minister and is to come before the House of Representatives within eight days.

Section 60 deals with the election of the President. In an attempt to limit the number of candidates to those who have a reasonable level of national support, subsection 3 requires that a candidate must have three thousand nominators of which 100 must come from each State.

60 The Election of the President

1. The President shall be directly elected by the people of the Commonwealth in such manner as the Parliament may provide, subject to this Constitution.
2. Any person may be a candidate for President if at the time he is nominated that person is qualified to be, and capable of being chosen as, a member of the House of Representatives and is not a member of the Commonwealth Parliament or a State Parliament or Territory legislature.
3. A candidate for President shall be nominated by not less than three thousand Australian citizens qualified to vote in an election for members of the House of Representatives and such nominators shall include not less than three hundred such Australian citizens resident in each State.
4. 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.
   
5. 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.
   

Section 61 dealing with term of office and remuneration is in the same terms as for Models 1 and 2. Section 62 makes removal of the President extremely difficult and adopts the same formula as is applied to federal judges. Section 63 is in the same terms as for Models 1 and 2. Further work on a direct election model should consider whether a vice-president should be elected as well.

61 Term of office and remuneration of President

1. The term of office of a President begins at the end of the term of office of the previous President. But if the office of President falls vacant, or the term of office of the outgoing President ends, before the day on which the incoming President makes the oath or affirmation of office, the incoming President's term of office begins on the day after that day.
2. The President holds office for five years but if, at the end of the term, a new President does not take office, the office of President does not thereby fall vacant and the outgoing President continues as President until the term of office of the next President begins.
3. A person may serve more than one term as President.
4. The President may resign by signed notice delivered to the Prime Minister.
5. The President shall receive such remuneration as the Parliament fixes. The remuneration of a President payable during a term of office shall not be altered during that term of office.
   

62 Removal of President

The President shall be removed from office if both Houses of the Parliament in the same session so resolve on the ground of proved misbehaviour or incapacity.

63 Acting President and deputies

1. Until the Parliament otherwise provides, the longest-serving State Governor available shall act as President if the office of President falls vacant. 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.
2. The provisions of this Constitution relating to the President, other than sections 60 and 61, extend and apply to any person acting as President.
3. 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.
4. 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.
5. 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.
6. 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.
7. An acting President, or a person exercising powers or functions as the President's deputy, shall receive such allowances as the Parliament fixes.

There will also be a new Oath (or Affirmation) for the President.

Under God I swear that I will be loyal to the Commonwealth of Australia and the Australian people, whose rights and liberties I respect and whose laws I will uphold. I swear I will serve the Australian people impartially according to law without fear or favour and in particular without favour to any political party or interest.
I solemnly and sincerely affirm that I will be loyal to the Commonwealth of Australia and the Australian people, whose rights and liberties I respect and whose laws I will uphold, and that I will serve the Australian people impartially according to law without fear or favour and in particular without favour to any political party or interest.