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64A How Governments are formed |
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Current Constitution |
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[Not in current Constitution: nearest equivalent sections are:
62 Federal Executive Council
There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure.
63 Provisions referring to Governor-General
The provisions of this Constitution referring to the Governor-General in Council shall be construed as referring to the Governor-General acting with the advice of the Federal Executive Council.
64 Ministers of State
The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish.
Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen’s Ministers of State for the Commonwealth.
Ministers to sit in Parliament
After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.]
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Proposed Constitution |
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The Prime Minister and Deputy Prime Minister shall be appointed and removed by resolutions passed by the House of Representatives in accordance with section 40, provided that if a vacancy arises when the House is not in session, a member may be appointed by the Governor-General if an absolute majority of the House of Representatives requests in writing the member's immediate appointment.
Ministers of State shall be appointed and removed, and may be suspended, by the Prime Minister, subject to any resolution of the House of Representatives.
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All Changes Displayed |
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The Prime Minister and Deputy Prime Minister shall be appointed and removed by resolutions passed by the House of Representatives in accordance with section 40, provided that if a vacancy arises when the House is not in session, a member may be appointed by the Governor-General if an absolute majority of the House of Representatives requests in writing the member's immediate appointment.
Ministers of State shall be appointed and removed, and may be suspended, by the Prime Minister, subject to any resolution of the House of Representatives. |
Drafting Notes |
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64A.1 One of the many deficiencies of our current Constitution is that it does not state correctly how Governments are formed. Sections 62 and 64 refer to a Federal Executive Council, rather than a Cabinet or Ministry which makes the real decisions; they refer to Ministers being appointed by the Governor-General without any reference to them needing the support of the House of Representatives, and they refer to the Governor-General making decisions on advice, not to Ministers making decisions. The Prime Minister - the most sought after political position in the land - is not mentioned. These unforgivable omissions will be remedied by via s.64A.
64A.2 Section 64A opens with the statement that: “The Prime Minister and Deputy Prime Minister shall be appointed and removed by resolutions passed by the House of Representatives in accordance with section 40.” The latter words confirms the resolutions will be ‘questions arising’ in the House under s.40, and will need to be supported by a majority of votes cast on the question.
64A.3 The opening clause is followed by a proviso. There is only one other proviso in the Constitution: in s.26; and it has ceased to have relevance, so there is no guidance from other sections or past cases as to how it is to be interpreted. It should however be quite clear that the opening clause states a general rule to which the proviso makes an exception. (There are of course other clauses in the Constitution which contain exceptions, such as s.53). The general rule should ensure that on most occasions that the Prime Minister and Deputy are replaced, it occurs in public, on the floor of the House of Representatives. This is important. If people must have formalities and symbolism, they should be consistent with principle and reality. Following an election, the House should be convened as soon as possible with the Governor-General presiding. The first item of business should be a motion ‘That X be appointed as Prime Minister’. On most occasions this motion will be carried. Where no party has a clear majority, debate on the motion may become more interesting, with amendments being moved to insert a different name in the motion. Following the motion being passed into a resolution, the Governor-General will immediately announce something like: ‘In accordance with the resolution of the House, and my duty under the Constitution, I appoint X as Prime Minister of the Commonwealth.’ This procedure will reinforce in the public’s mind how Governments are made - by command of the majority in the House.
64A.4 Strictly speaking, it ought not to be necessary to have anyone appoint the Prime Minister or Deputy. He or she could be appointed directly by a vote of the House. That could be inconvenient if a vacancy arose while the House was not sitting - perhaps when members have gone on overseas trips during the winter recess. Convening the House may be an expensive and slow process now that it has 150 members. Providing for formal appointment by the Head of State allows some flexibility, so that there can be a seamless transfer of power when an unexpected vacancy occurs; as happened when Harold Holt disappeared. Hence appointment by the Governor-General has been retained, but with the Governor-General’s power to initiate appointments removed. The exception is however strictly limited, because most of the time the Acting Prime Minister provisions in proposed s.66A will be sufficient.
64A.5 Note that the proviso in the first paragraph of s.64A only refers to appointments. The Governor-General therefore has no power at all to remove a sitting Prime Minister or the Deputy until the House passes a resolution for removal. This does not of course prevent political parties from removing a serving Prime Minister, in the way that Kevin Rudd was ousted in June 2010. The loss of party leadership will usually induce a Prime Minister to resign without the necessity for a House resolution, following which the successor can be appointed and then confirmed in office by a House resolution. However, if a person in Mr Rudd's position did not resign, the Governor-General could not appoint a replacement. Conceivably this could occur when there was a political re-alignment consequent on parties splitting; such as in 1917, when Prime Minister Hughes and his supporters walked out of the ruling Labor party, yet retained Government by forming an alliance with the opposition. Resolution of such cases by the House of Representatives is the more appropriate procedure.
64A.6 The proviso states four conditions which must be met before the Governor-General may exercise his or her power to fill a vacancy without a resolution from the House.
64A.6.1 Firstly there must be a “vacancy”. Whereas provision has been made in proposed s.60B(2)(ii) for Parliament to define what is meant by vacancy in relation to the positions of Head of State and Deputy, that approach has been deliberately omitted from s.64A. Vacancies will usually be obvious - most will arise through resignation, death or the Prime Minister losing his or her seat in the House. But there is one other scenario which could be classed as a vacancy, in a broad sense: where the Prime Minister loses the support of the governing party yet does not resign; not due to a political re-alignment, but due to a mental illness, or some other medical condition which may or may not be temporary. The Prime Minister may not resign because he is comatose in intensive care. Is there a vacancy? There would be a similar problem if the Prime Minister went missing. At what point after Harold Holt disappeared was there a vacancy? To allow legislation to determine whether scenarios like this amount to a “vacancy” would be unwise. The legislation would probably have been made by a prior Parliament, which may not have foreseen the exact scenario which has unfolded. Generally in such cases it would be better to rely on the Acting Prime Minister provision in s.66A(ii) and then await the next sitting of the House; though the section would permit an appointment by the Governor-General in an emergency.
64A.6.2 Secondly, the House must not be in session. Under proposed s.6A, the Standing Orders will provide for the determination of session times. Presumably it will be done by reference to particular dates, so it will be easy to determine when the House is in session. The requirements of Parliament are the main factor determining session times, but currently session times should be set with regard to their possible effect on the operation of sections 57, 72(ii) and 128 of the Constitution. It is unlikely the addition of s.64A will cause different decisions to be made about when the House is in session.
64A.6.3 The third pre-condition is that an absolute majority of the House must request the appointment of the replacement. This ensures that the Governor-General cannot initiate an appointment without a House resolution. Under our present Constitution, it would be possible for the Governor-General to team up with a disgruntled group in the House to appoint one of the latter as Prime Minister, to achieve some specific purpose. This albeit remote possibility is completely removed under the Advancing Democracy model. The term "absolute majority" is used in ss.57 and 128, and means a majority of the total number of possible votes, rather than a majority of the votes actually cast. The reason why an absolute majority is needed is that in the absence of a formal meeting of the House, there is no procedure for recording who has voted on the question.
64A.6.4 Finally the support of the absolute majority must be evidenced "in writing". There is no reference to signatures, or documents 'by hand' or 'under seal'. The intention is simply that there be a documentary record of the request, so that it can be verified. The requirement should not prove a problem in the time of electronic communications. An email will be sufficient.
64A.7 Another important consequence flows from the limited role for the Governor-General under s.64A and the introductory words of s.58A which provide that the Governor-General may only exercise powers set out in the Constitution. Under the Advancing Democracy proposal, the Constitution contains no power for the Governor-General to appoint a Prime Minister in a ‘caretaker’ capacity, so it abolishes the notion of appointment of ‘caretakers’. After dismissing the Whitlam Government in 1975, Sir John Kerr purported to appoint Mr Fraser in a ‘caretaker’ capacity, which he claimed meant the Government would make no appointments or dismissals nor initiate new policies. This was a public relations stunt without any legal validity. Had the Fraser Ministry broken the ‘caretaker’ rules, its actions would still have been lawful, and Kerr could not have done anything - by choosing sides as he did he had nowhere else to turn if Fraser did not do as he was asked. To pretend that there was some control on the Fraser Government was therefore an act of deceit. Our current Constitution, which makes no mention of ‘caretakers’, allows those who wield the remnants of royal power to make up the rules as they go along, to suit themselves. That will end when the Advancing Democracy proposal is adopted.
64A.8 The final paragraph places the power to appoint, remove and suspend Ministers in the hands of the Prime Minister. At present, the Prime Minister advises the Governor-General who to appoint. That simply delays the appointment. Presumably appointments will be made in writing, but the omission of a method of appointment is intentional. There may be appointments which need to be made in times of war, rebellion or natural disaster where following a particular procedure would simply hamper the Government’s efforts to govern.
64A.9 Ministerial appointments are “subject to any resolution of the House of Representatives”. Although no Minister has ever been removed pursuant to a resolution of the House, the convention has always operated that each Minister must command the support of the majority of the House to maintain his or her position. The final words of s.64A make this convention explicit. They also provide an avenue of appeal to the House for any Minister who believes he or she should not have been dismissed.
64A.10 In summary, s.64A inserts the missing rule which is the essential characteristic of democracy - that the majority rules. |
Current Constitution |
|
[Not in current Constitution: nearest equivalent sections are:
62 Federal Executive Council
There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure.
63 Provisions referring to Governor-General
The provisions of this Constitution referring to the Governor-General in Council shall be construed as referring to the Governor-General acting with the advice of the Federal Executive Council.
64 Ministers of State
The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish.
Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen’s Ministers of State for the Commonwealth.
Ministers to sit in Parliament
After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.]
< Previous section Next section > |
Proposed Constitution |
|
The Prime Minister and Deputy Prime Minister shall be appointed and removed by resolutions passed by the House of Representatives in accordance with section 40, provided that if a vacancy arises when the House is not in session, a member may be appointed by the Governor-General if an absolute majority of the House of Representatives requests in writing the member's immediate appointment.
Ministers of State shall be appointed and removed, and may be suspended, by the Prime Minister, subject to any resolution of the House of Representatives.
< Previous section Next section > |
All Changes Displayed |
|
The Prime Minister and Deputy Prime Minister shall be appointed and removed by resolutions passed by the House of Representatives in accordance with section 40, provided that if a vacancy arises when the House is not in session, a member may be appointed by the Governor-General if an absolute majority of the House of Representatives requests in writing the member's immediate appointment.
Ministers of State shall be appointed and removed, and may be suspended, by the Prime Minister, subject to any resolution of the House of Representatives. |
Drafting Notes |
|
64A.1 One of the many deficiencies of our current Constitution is that it does not state correctly how Governments are formed. Sections 62 and 64 refer to a Federal Executive Council, rather than a Cabinet or Ministry which makes the real decisions; they refer to Ministers being appointed by the Governor-General without any reference to them needing the support of the House of Representatives, and they refer to the Governor-General making decisions on advice, not to Ministers making decisions. The Prime Minister - the most sought after political position in the land - is not mentioned. These unforgivable omissions will be remedied by via s.64A.
64A.2 Section 64A opens with the statement that: “The Prime Minister and Deputy Prime Minister shall be appointed and removed by resolutions passed by the House of Representatives in accordance with section 40.” The latter words confirms the resolutions will be ‘questions arising’ in the House under s.40, and will need to be supported by a majority of votes cast on the question.
64A.3 The opening clause is followed by a proviso. There is only one other proviso in the Constitution: in s.26; and it has ceased to have relevance, so there is no guidance from other sections or past cases as to how it is to be interpreted. It should however be quite clear that the opening clause states a general rule to which the proviso makes an exception. (There are of course other clauses in the Constitution which contain exceptions, such as s.53). The general rule should ensure that on most occasions that the Prime Minister and Deputy are replaced, it occurs in public, on the floor of the House of Representatives. This is important. If people must have formalities and symbolism, they should be consistent with principle and reality. Following an election, the House should be convened as soon as possible with the Governor-General presiding. The first item of business should be a motion ‘That X be appointed as Prime Minister’. On most occasions this motion will be carried. Where no party has a clear majority, debate on the motion may become more interesting, with amendments being moved to insert a different name in the motion. Following the motion being passed into a resolution, the Governor-General will immediately announce something like: ‘In accordance with the resolution of the House, and my duty under the Constitution, I appoint X as Prime Minister of the Commonwealth.’ This procedure will reinforce in the public’s mind how Governments are made - by command of the majority in the House.
64A.4 Strictly speaking, it ought not to be necessary to have anyone appoint the Prime Minister or Deputy. He or she could be appointed directly by a vote of the House. That could be inconvenient if a vacancy arose while the House was not sitting - perhaps when members have gone on overseas trips during the winter recess. Convening the House may be an expensive and slow process now that it has 150 members. Providing for formal appointment by the Head of State allows some flexibility, so that there can be a seamless transfer of power when an unexpected vacancy occurs; as happened when Harold Holt disappeared. Hence appointment by the Governor-General has been retained, but with the Governor-General’s power to initiate appointments removed. The exception is however strictly limited, because most of the time the Acting Prime Minister provisions in proposed s.66A will be sufficient.
64A.5 Note that the proviso in the first paragraph of s.64A only refers to appointments. The Governor-General therefore has no power at all to remove a sitting Prime Minister or the Deputy until the House passes a resolution for removal. This does not of course prevent political parties from removing a serving Prime Minister, in the way that Kevin Rudd was ousted in June 2010. The loss of party leadership will usually induce a Prime Minister to resign without the necessity for a House resolution, following which the successor can be appointed and then confirmed in office by a House resolution. However, if a person in Mr Rudd's position did not resign, the Governor-General could not appoint a replacement. Conceivably this could occur when there was a political re-alignment consequent on parties splitting; such as in 1917, when Prime Minister Hughes and his supporters walked out of the ruling Labor party, yet retained Government by forming an alliance with the opposition. Resolution of such cases by the House of Representatives is the more appropriate procedure.
64A.6 The proviso states four conditions which must be met before the Governor-General may exercise his or her power to fill a vacancy without a resolution from the House.
64A.6.1 Firstly there must be a “vacancy”. Whereas provision has been made in proposed s.60B(2)(ii) for Parliament to define what is meant by vacancy in relation to the positions of Head of State and Deputy, that approach has been deliberately omitted from s.64A. Vacancies will usually be obvious - most will arise through resignation, death or the Prime Minister losing his or her seat in the House. But there is one other scenario which could be classed as a vacancy, in a broad sense: where the Prime Minister loses the support of the governing party yet does not resign; not due to a political re-alignment, but due to a mental illness, or some other medical condition which may or may not be temporary. The Prime Minister may not resign because he is comatose in intensive care. Is there a vacancy? There would be a similar problem if the Prime Minister went missing. At what point after Harold Holt disappeared was there a vacancy? To allow legislation to determine whether scenarios like this amount to a “vacancy” would be unwise. The legislation would probably have been made by a prior Parliament, which may not have foreseen the exact scenario which has unfolded. Generally in such cases it would be better to rely on the Acting Prime Minister provision in s.66A(ii) and then await the next sitting of the House; though the section would permit an appointment by the Governor-General in an emergency.
64A.6.2 Secondly, the House must not be in session. Under proposed s.6A, the Standing Orders will provide for the determination of session times. Presumably it will be done by reference to particular dates, so it will be easy to determine when the House is in session. The requirements of Parliament are the main factor determining session times, but currently session times should be set with regard to their possible effect on the operation of sections 57, 72(ii) and 128 of the Constitution. It is unlikely the addition of s.64A will cause different decisions to be made about when the House is in session.
64A.6.3 The third pre-condition is that an absolute majority of the House must request the appointment of the replacement. This ensures that the Governor-General cannot initiate an appointment without a House resolution. Under our present Constitution, it would be possible for the Governor-General to team up with a disgruntled group in the House to appoint one of the latter as Prime Minister, to achieve some specific purpose. This albeit remote possibility is completely removed under the Advancing Democracy model. The term "absolute majority" is used in ss.57 and 128, and means a majority of the total number of possible votes, rather than a majority of the votes actually cast. The reason why an absolute majority is needed is that in the absence of a formal meeting of the House, there is no procedure for recording who has voted on the question.
64A.6.4 Finally the support of the absolute majority must be evidenced "in writing". There is no reference to signatures, or documents 'by hand' or 'under seal'. The intention is simply that there be a documentary record of the request, so that it can be verified. The requirement should not prove a problem in the time of electronic communications. An email will be sufficient.
64A.7 Another important consequence flows from the limited role for the Governor-General under s.64A and the introductory words of s.58A which provide that the Governor-General may only exercise powers set out in the Constitution. Under the Advancing Democracy proposal, the Constitution contains no power for the Governor-General to appoint a Prime Minister in a ‘caretaker’ capacity, so it abolishes the notion of appointment of ‘caretakers’. After dismissing the Whitlam Government in 1975, Sir John Kerr purported to appoint Mr Fraser in a ‘caretaker’ capacity, which he claimed meant the Government would make no appointments or dismissals nor initiate new policies. This was a public relations stunt without any legal validity. Had the Fraser Ministry broken the ‘caretaker’ rules, its actions would still have been lawful, and Kerr could not have done anything - by choosing sides as he did he had nowhere else to turn if Fraser did not do as he was asked. To pretend that there was some control on the Fraser Government was therefore an act of deceit. Our current Constitution, which makes no mention of ‘caretakers’, allows those who wield the remnants of royal power to make up the rules as they go along, to suit themselves. That will end when the Advancing Democracy proposal is adopted.
64A.8 The final paragraph places the power to appoint, remove and suspend Ministers in the hands of the Prime Minister. At present, the Prime Minister advises the Governor-General who to appoint. That simply delays the appointment. Presumably appointments will be made in writing, but the omission of a method of appointment is intentional. There may be appointments which need to be made in times of war, rebellion or natural disaster where following a particular procedure would simply hamper the Government’s efforts to govern.
64A.9 Ministerial appointments are “subject to any resolution of the House of Representatives”. Although no Minister has ever been removed pursuant to a resolution of the House, the convention has always operated that each Minister must command the support of the majority of the House to maintain his or her position. The final words of s.64A make this convention explicit. They also provide an avenue of appeal to the House for any Minister who believes he or she should not have been dismissed.
64A.10 In summary, s.64A inserts the missing rule which is the essential characteristic of democracy - that the majority rules. |
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