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University of NSW
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The Commonwealth Attorney-General, Daryl Williams, recently declared the February 1998 Constitutional Convention "an outstanding success".[1] This is a fair assessment if the Convention is judged against its designated purpose - to decide whether Australia should become a republic, when this should occur, and which republican model should be put to referendum. However, at least for republicans, the Convention will ultimately have failed unless a satisfactory model of republican government is approved at the referendum to be held by December 1999. Hence final judgement on the Convention must be reserved until the outcome of the referendum is known. But its prospect of success will be enhanced by analysis of the Convention model while the opportunity exists to influence the details of the proposed constitutional amendments. Moreover, even at this early stage, some tentative lessons for future reform can be drawn from the successes and failures of the 1998 Convention.
The Convention model has six principal components: the nomination, appointment, removal and powers of the President, the republicanisation of the States, and amendment of the constitutional Preamble. The Convention devoted greater attention to the method of selecting the President than any other subject. It considered this the linchpin of the presidency since it would largely determine the essential nature of the office. Indeed it will. But, with the exception of supporters of the McGarvie model, the Convention gave insufficient consideration to the method of removing the President which, while likely to be employed extremely rarely, will nevertheless influence the way in which the office is perceived - by Presidents and Prime Ministers, as well as by the public. A President appointed by the Prime Minister but removable only by referendum, for example, would enjoy far greater practical independence than the converse - a popularly elected President removable at the whim of the Prime Minister.
Under the Convention model, a broadly based committee, established under Commonwealth legislation, will consult widely before compiling a short list of suitable presidential candidates for submission to the Prime Minister. Although a formal committee was not a component of the pre-Convention Australian Republican Movement (ARM) model, wide community consultation had long been envisaged and was not adopted merely as a concession to supporters of direct presidential election as is sometimes supposed. The operation of the nomination process should be adapted in light of experience, so it is appropriate to leave its details in the hands of Parliament, rather than entrench them in the Constitution.
Since a candidate will effectively require bipartisan support for election, there would seem to be little point in requiring the Prime Minister to nominate a candidate approved by the committee if that person does not enjoy the government's support.[2] But that does not render the committee "a clumsy sham", as Sir Harry Gibbs has alleged.[3] As both government and opposition will be represented on the committee, the shortlisted candidates are likely to include at least some acceptable to the Prime Minister and the Leader of the Opposition. If, in time, the committee appears to be ineffectual, its role could be strengthened; for example, by requiring Parliament, and thereby the public, to be informed of the names on the shortlist.
However, popular election of the Nomination Committee[4] would be unwise. It would politicise the nomination process, and consequently the presidential election, contrary to the Convention's intention. Candidates for election to the committee would be publicly committed to nominating certain candidates, thereby undermining the committee's intended function of non-political community consultation. Moreover, the election of committee members would inevitably evolve into a surrogate presidential election, as occurred in the case of the electoral college which formally elects the President of the United States.
The Convention model provides for presidential election by a two-thirds majority of both Houses of the Commonwealth Parliament sitting together. This has long been a core component of the "minimalist" republican model[5] advocated by the ARM and adopted by the Keating Government in 1995.[6] The head of state under the Australian system of government - which the republic would retain - fulfils two essential functions: the symbolic role of personifying the Australian nation and people, and ultimate constitutional guardian empowered to enforce fundamental constitutional principles, such as representative and responsible government and the rule of law, through exercise of the reserve powers. These functions require a head of state who is, and is perceived to be, non-partisan - "above politics" - and enjoys considerable legitimacy. In a republic - a state based upon popular sovereignty - legitimacy can be derived only from the people, directly or indirectly. The system will operate most effectively if the authority of both the President and the government is drawn from the same source: the indirect support of the people through their parliamentary representatives. Hence, the Convention model is the most suitable for an Australian republic which retains the present system of government.
Neither of the principal alternatives satisfies both criteria. A popularly elected President could plausibly claim greater popular legitimacy than the government and might experience difficulty in appearing non-partisan after a popular election between rival party candidates. A McGarvie President,[7] on the other hand, could claim little popular support and might well be a partisan figure since appointment is essentially in the hands of the Prime Minister, the principal party leader.
While the Senate continues to be elected by proportional representation, barring an unprecedented electoral landslide, election by a two-thirds majority at a joint sitting of both Houses would require bipartisan support. This effectively excludes politically partisan candidates. But proportional representation is not constitutionally entrenched and could be abolished by legislation, as recent governments have occasionally mooted. Consequently, the insecure foundation of the present method of electing the Senate was a weakness of the ARM/Keating model. However, the Convention model overcomes this by requiring the Prime Minister's nomination of a presidential candidate to be seconded by the Leader of the Opposition, thereby ensuring bipartisan support.[8] Constitutional identification of the Leader of the Opposition could be cumbersome,[9] so it may prove wiser to leave this in the hands of the Speaker, whose determination might be expressly rendered non-justiciable.
The Convention model's provision regarding presidential removal[10] is its most unsatisfactory feature, and has been criticised by virtually every commentator.[11] It is no coincidence that on this issue the Convention departed most substantially from the earlier ARM/Keating model, for the Convention's lapse in this respect is symptomatic of its overall failings, noted below.
The ARM/Keating model adopted the same method for presidential removal as for appointment: a two-thirds majority of both Houses in joint session. It was considered unnecessary to stipulate grounds for removal because it was thought that a supermajority would be unachievable without adequate grounds having been established. Moreover, the Senate's investigation into Justice Lionel Murphy's alleged "misbehaviour" demonstrated the delay and difficulty involved in interpreting such criteria.
However, a two-thirds majority is too stringent a standard, for it raised the spectre - highlighted by critics such as Richard McGarvie - of an Opposition preventing removal of a President who improperly obstructs the government.[12] Unfortunately, the ARM responded to justified criticism that removal had been made too difficult by going to the opposite extreme of making it too easy. The peculiar removal mechanism adopted by the Convention[13] was borrowed from republican models proposed by Senators Robert Hill (Liberal Government Leader in the Senate) and Nick Bolkus (Labor Shadow Attorney-General), which differed in other respects. The ARM presumably adopted it in the vain hope of attracting support for its "Bipartisan Appointment of the President" model from supporters of the McGarvie model, including the Prime Minister.
A mechanism for presidential removal is a constitutional safety valve or insurance policy, unlikely to be used, but colouring perceptions of the office. Its purpose is to enable removal of a President unable or unwilling properly to execute the functions of the office. The removal mechanism should, therefore, be designed to fulfil this purpose; as, for example, in Ireland whose President is removable for "misbehaviour" which "render[s] him unfit to continue in office."[14]
The Convention's removal mechanism fails to achieve its purpose in many respects, which can be noted here only summarily.
No ground for removal is stipulated, nor need any reason be given for removal. This is a denial of natural justice. The High Court might conceivably imply procedural, and even substantive, limitations and thereby subject presidential removal to judicial review.[15]
The removal mechanism unnecessarily excludes the Senate,[16] which is difficult to justify on the ground either of principle or pragmatism. The Senate is an essential component of the national Parliament and will participate in the election of the removed President's successor. Moreover, exclusion of the Senate risks alienating the smaller States whose support could be essential to the referendum's success.
Prime Ministerial removal of the President is incompatible with the status of a head of state. To the writer's knowledge, it has no precedent among republican constitutions.
Like the McGarvie model, the Convention's removal mechanism suffers from the vital structural weakness that presidential removal depends upon prime ministerial action which could be thwarted by pre-emptive presidential dismissal of the Prime Minister.
This mutual dismissibility of the President and Prime Minister facilitates the playing of "constitutional chicken"; a "`who will shoot first?' scenario", as Sir Anthony Mason aptly expressed it.[17] The Convention squandered a significant opportunity to improve Australian government, beyond merely symbolic features, by according the President greater security of tenure than that enjoyed by the Governor-General. This should encourage a President to warn the Prime Minister of the impending exercise of a reserve power, enabling the latter to take action to alleviate the necessity for its exercise, and thus avoid repetition of Sir John Kerr's error of acting prematurely without giving the Prime Minister adequate warning.
What is the justification for not re-instating a President found to have been wrongly removed? This will seem an ominous precedent to electors who are employees.
A President's competence to continue in office should not be linked to the House's confidence in the Prime Minister, which raises different issues. The likely consequence of the putative vote of no-confidence in the Prime Minister (constituted by disapproval of the President's removal) would be a dissolution of Parliament although, unlike the Hill and Bolkus proposals, the Convention resolution does not expressly say that. A dissolution of Parliament is a subject in which its members are intensely interested in both senses of the word. A presidential dismissal mechanism in which the future careers of those sitting in judgement are potentially at stake is hardly conducive to the dispassionate assessment of presidential conduct which a removal mechanism requires.
Finally, no provision is made for an acting President who would have to decide, for example, whether to grant the dissolution of Parliament which would follow upon the House's disapproval of a President's removal. Discussion at the Convention indicated general agreement with the present practice of appointing the senior State Governor.[18] But no provision was made for the acting President's removal.
The Commonwealth Parliament should generally honour the Convention's resolutions in framing the constitutional amendments necessary to effect them. But less weight should be attached to its presidential removal mechanism which (unlike presidential appointment) was not seen as a core issue and received scant consideration. It has been suggested that, like the 1897-1898 Convention which sat in three sessions, the 1998 Convention might be recalled to debate the Constitution Alteration Bill.[19] But a Joint Commonwealth Parliamentary Committee would seem a more effective means for combining constitutional expertise with the political considerations necessary to secure the Bill's passage both in Parliament and at the referendum. A parliamentary committee would also facilitate public input into the details of the final draft, some of which the Convention expressly left to Parliament (the nomination process, presidential powers and the Preamble). However, if the government is reluctant to depart from the Convention's resolutions, the Convention should be recalled for about three days to enable it to determine the optimum republican model without the earlier distractions of the monarchy vs republic debate or the need to demonstrate sufficient support to secure a referendum.
What removal mechanism should be substituted? Among the authors in this Forum, John Williams favours bipartisan removal, presumably along the lines of the original ARM/Keating model,[20] Linda Kirk removal by the Prime Minister through a McGarvie Council,[21] and Cheryl Saunders removal on specified grounds either by the House of Representatives or by a specially constituted Council.[22] Of these, the third comes closest to satisfying the criteria noted above, but the present writer maintains his earlier view[23] that the grounds and method for removing the President should be those applicable to federal judges: removal should be by both Houses of the Commonwealth Parliament sitting separately, on the ground of "proved misbehaviour or incapacity".[24]
For cosmetic rather than legal reasons, abolition of the monarchy would require alteration of the constitutional Preamble to remove reference to the Crown. Is wider amendment desirable?
It is suggested that it is.[25] Comparative experience suggests that a constitutional Preamble can usefully serve three functions:
To state the purposes of the Constitution (federation of the Australian Colonies and conversion to a republic) and the fundamental principles on which it is grounded (democratic government, the rule of law and equality before the law);
To identify the Australian people (indigenous peoples together with later immigrants of many diverse cultures); and
More controversially, to portray the Australian people's vision of themselves and how they wish others to perceive them. This can be accomplished by recognising core civic values, such as the equal worth and dignity of every person and the environmental obligation to future generations. These few core values, recognised almost universally, should unite the Australian people by acknowledging a shared national moral bedrock.
The Convention's resolution on the Preamble is one of its most significant, and least timid,[26] accomplishments. It endorsed preambular recognition of aboriginal prior occupation, the fundamental constitutional principles of representative democracy, responsible government and the rule of law, and the civic values of cultural diversity and respect for the environment. It also urged consideration for inclusion of equality before the law, gender equality and indigenous rights. Finally, it proposed recognition of popular sovereignty through a "We, the People" enactment clause.[27]
However, concern regarding the High Court's potential employment of these concepts in constitutional interpretation and fear that it could lead to a judicially-created implied Bill of Rights[28] led the Convention to recommend that Chapter III of the Constitution include a provision prohibiting use of the Preamble in constitutional interpretation. For more abundant caution, in case the latter provision proved ineffective,[29] it also urged that the Preamble be drafted to avoid "implications for the interpretation of the Constitution".[30]
Several authors in this Forum have criticised these recommendations. They argue that constitutional interpretation inevitably involves the application of fundamental community values, so it is senseless to deny judges access to the strongest evidence of these values. Moreover, for Australians to assert that they adhere to certain fundamental values but forbid judges to take cognisance of them would be "hollow and hypocritical",[31] indeed "verg[ing] on a joke".[32] This view has weight, but the Convention's resolution on the Preamble can be supported on both principled and pragmatic grounds.
The pragmatic consideration is that many conservative delegates, such as Professor Greg Craven, opposed preambular recognition of any civic values, arguing, like Sir Harry Gibbs, that "expression of social values is out of place" in a Constitution.[33] Without the proposed Chapter III provision, there is a good chance that the Convention would have rejected any preambular statement of values, adding to the existing Preamble only recognition of Aboriginal prior occupation and movement to a republic.[34] The Preamble addresses the entire Australian community - not just the High Court - and indeed the world community beyond it. If one believes, as the present writer does, that a preambular statement of fundamental civic values serves a useful moral, educational and socially unifying function, the Chapter III provision is surely a small price to pay for it. Placing the provision in the chapter of the Constitution dealing with the Judicature, rather than in the Preamble itself,[35] is both appropriate, since it is essentially addressed to the judges, and ensures that it will not detract from the Preamble's rhetorical impact. Moreover, nothing in the Constitution will prevent judicial reference to the Preamble for other purposes, such as statutory interpretation and development of the common law.[36]
There are also valid principled grounds for concern regarding the potential constitutional consequences which might flow from High Court use of broad civic values stated in the Preamble. Those consequences are certainly unforeseeable; as Sir Anthony Mason has remarked, "we do not know what would come of it in the hands of the judges".[37] Moreover, we have already experienced a sampling in both Australia and Canada.
In Leeth v Commonwealth,[38] Brennan, Deane and Toohey JJ purported to derive an implied constitutional right of equality - an implied prohibition against arbitrary discrimination - from the provisions in the Preamble and covering clause 3 that the people of the Australian colonies had agreed to unite in a federal Commonwealth.[39]
Moreover, the constitutional Preamble was recently given even greater effect by six judges of the Supreme Court of Canada. The recital in the Preamble to the Constitution Act 1867 (UK) that the Canadian Constitution was to be "similar in Principle to that of the United Kingdom" was held to justify implication of such constitutional principles as the rule of law, representative government, parliamentary privilege, freedom of political speech and judicial independence.[40] The judges, speaking through Lamer CJ, remarked:
[T]he preamble does have important legal effects. ... [It] identifies the organizing principles of the Constitution Act, 1867, and invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text. ... It is the means by which the underlying logic of the Act can be given the force of law.[41]
This judicial creativity suggests that the Convention's concerns are not fanciful. Under its resolution, the High Court would not be prevented from employing community values in constitutional interpretation, but the sources from which they are derived would lack the authority of constitutional text; as Sir Anthony Mason has noted, "[a] constitutional recital of values would be an extremely authoritative statement".[42] If the Constitution is to contain provisions governing its interpretation, they should be considered on their merits with that purpose clearly in view. As Alex Reilly argues, "[g]iven the uncertain nature of constitutional interpretation, a society should consider carefully what principles it wishes the Court to rely on to inform its interpretation of the Constitution".[43] Providing guidance in constitutional interpretation is never the primary purpose of a constitutional Preamble.
It is worthwhile noting that the proposed Chapter III provision is not entirely unprecedented. The Irish Constitution contains several "Directive Principles of Social Policy" which are "intended for the general guidance of [Parliament]." But judicial reference to them is expressly excluded:
The application of those principles in the making of laws shall be the care of [Parliament] exclusively, and shall not be cognisable by any Court under any of the provisions of this Constitution.[44]
Since preambular recital of fundamental principles and civic values is independent from the advent of a republic, it should perhaps be enacted in a separate Constitution Alteration Bill requiring approval in a separate (but presumably simultaneous) referendum question. Moreover, the Chapter III provision should be linked only to this portion of the Preamble, so that courts interpreting the Constitution would not be precluded from referring to the "indissoluble federal" nature of the Commonwealth.[45]
Opinion is divided on the Convention's success, and generally reflects the commentator's judgement on the merits of the Convention's republican model. Sir Harry Gibbs' verdict that its adoption "would be a disaster for Australia"[46] was not entirely unpredictable. But Cheryl Saunders' conclusion that "[w]ith hindsight, minimalism has been a mistake"[47] is more surprising, for not only is it unsubstantiated, but it flies in the face of Australia's referendum experience - of which she is more cognisant than almost anyone - which highlights the difficulty of persuading Australians to endorse even the most minimal constitutional change.
The Convention's model is flawed, but not beyond repair by a parliamentary committee or by the Convention itself if recalled. Its presidential removal mechanism is both structurally unsound and entirely inappropriate. Its resolution on the Preamble is incomplete, but it is probably just as well that a Convention of 152 delegates did not even try to draft a new one. Its resolution on presidential powers is also disappointing: the non-reserve powers are to be "spelled out so far as practicable" - which is surely 100 per cent[48] - and the present reserve powers together with the conventions governing them are merely to be incorporated by reference.[49] Proposals to adopt the Republic Advisory Committee's partial codification of these conventions[50] were ultimately abandoned in a attempt to gain the government's support.[51] It would be most unfortunate if the Constitution were belatedly to recognise the office of Prime Minister only in the context of presidential appointment and removal, but continue to omit the fundamental requirement of responsible government, namely that the Prime Minister must enjoy the confidence of the House of Representatives. Brian Galligan has commented:
The office [of President] is left as one of undefined absolute power: literally that of an absolutist monarch with the monarch deleted and an Australian president ... substituted. ... Making over a monarchist office of formal absolutist powers neutered by instant prime ministerial dismissal is not the way to go.[52]
The Convention's failings are largely attributable to two factors: insufficient attention was devoted to the details of the republican model, and the ARM conceded too much to the Prime Minister and other supporters of the McGarvie model in a futile attempt to secure their support. The Convention must bear some responsibility for this, but much of it was probably an inevitable consequence of the Convention's structure and agenda, which were largely determined in advance by the government.
For several reasons, the Convention was unable to focus attention solely on determining the best republican model to put to referendum. First, much time was occupied with debating the general question whether Australia should retain the monarchy. Secondly, many monarchists had little interest in contributing to the framing of any republican model. Thirdly, the Prime Minister had undertaken to submit to referendum any republican model enjoying the Convention's "clear support".[53] This term was not defined; nor was it made explicit that the earlier requirement for "consensus" had been abandoned. Once it became clear (on the second day) that the Convention would not favour a directly-elected President, many proponents of direct election opted in favour of the plebiscite which the Prime Minister had promised if the Convention was unable to express a "clear view".[54] Hence, the ARM felt obliged to offer concessions to the other "republican" group, supporters of the McGarvie model. This led to the Prime Ministerial dominance inherent in the Convention model.
Other features of the Convention exacerbated these factors. First, the interval between the election of delegates and the meeting of the Convention, which included the Christmas period, was probably too short to enable delegates to familiarise themselves with the issues[55] and discuss tactics with fellow delegates before the Convention met.[56] Secondly, the Convention's decision to refer to the Resolutions Group (which had been envisaged largely as a drafting committee) any resolution which received the support of 25 per cent of the delegates was an unwise over-reaction to a threatened "walk-out" by proponents of direct presidential election following the Convention's rejection (on its second day) of full codification of presidential powers, which they interpreted as rejection of their model.[57] This resulted in the deferral of decision on most issues, later resolved with insufficient consideration towards the end of the Convention. Moreover, the Resolutions Group itself, which met in private, appears to have operated unsatisfactorily.[58]
The Commonwealth Constitution is essentially the product of the Federal Convention of 1897-98, which was largely popularly elected.[59] Quick and Garran surmised that the Convention's success in securing approval of its handiwork by the Australian electors was attributable to the public's sense of involvement in the federation movement and its confidence in the quality of the Constitution framed by delegates specially elected for that task.[60] It has occasionally been suggested in the following century that the dismal record of constitutional referenda might be overcome by emulating the earlier Convention in electing its delegates.[61] This was eventually accomplished on the centenary of the final session of the earlier Convention, although the later Convention was only 50 per cent elected. (The 1897-98 Convention was 80 per cent elected.)
The 1998 Convention succeeded in attracting wide public interest and involvement, and hopefully advancing knowledge of Australian government.[62] The non-elected delegates enhanced the quality of the Convention's deliberations because many of them were genuinely open to persuasion. Most elected delegates understandably felt obliged to adhere to the platform on which they had been elected. As noted at the outset, the ultimate measure of the Convention's success will be whether or not the electors approve its model for an Australian republic. The referendum result will determine whether or not the 1998 Convention was a reprise of its illustrious predecessor of 1898.
[*]Professor of Law, University of New South Wales. Appointed delegate to the Constitutional Convention.
[1]D Williams, Realising the Republic: The Government's Perspective (unpublished paper presented at ANU Seminar Series "The Republic: What Next?", 6 April 1998), p1. See, likewise, G Williams "The People's Convention?" (1998) 23 (1) Alternative Law Journal 2 at 2("a great success").
[2] But see J Hirst, "In Defence of the Republic" (1998) 42(6) Quadrant 58 at 59.
[3] In his article, below, at .
[4] As suggested by John Williams in his article, below, at .
[5] For its origin, see the present author's draft republican Constitution s 59(2), in The Independent Monthly, March 1992, reprinted in G Winterton, "A Constitution for an Australian Republic", in G Winterton (ed), We, the People: Australian Republican Government, Allen & Unwin (1994), p 18. However, under that model the two Houses sat separately.
[6] PJ Keating, An Australian Republic : The Way Forward, AGPS (1995), p 11.
[7] That is, under the model proposed by the Hon. Richard McGarvie, providing for presidential appointment and removal by the Prime Minister through a "Constitutional Council" of three former Presidents, Governors-General, Governors, etc.
[8] For an early suggestion to this effect, see G Winterton, "A Model President", Weekend Australian, 10-11 June 1995, p 22.
[9] It would not be satisfactory simply to specify the leader of the party or coalition with the second highest number of members in the House of Representatives because two or more groups may have equal numbers. Moreover, it is theoretically conceivable for the government to win all seats in the House, as occurred in New Brunswick in 1987: see DL Peterson (1987-88) 10 Canadian Parliamentary Review 33.
[10] Removal is by the Prime Minister. If the House of Representatives does not ratify the removal within thirty days, its refusal is treated as a vote of no-confidence in the Prime Minister: "Final Resolutions of the Constitutional Convention, Canberra, 2-13 February 1998" (1998) 9 Public Law Review 55 at 56.
[11] See, for example, the articles by Sir Harry Gibbs, Linda Kirk, Cheryl Saunders and John Williams, below; Sir Anthony Mason, The Republic and Australian Constitutional Development (unpublished paper presented at ANU Seminar Series "The Republic : What Next?", 11 May 1998), pp 4-5; B Galligan, "The Republican Model" (1998) 42(4) Quadrant 17 at 18, 21; J Hirst, note 2 supra, at 59, 60.
[12] RE McGarvie, "Our Democracy in Peril: The Safe Way to a Democratic Republic" (1997) Victorian Bar News, No 101, 31 at 32-33. For a critique, see G Winterton, "A Reply to McGarvie", Adelaide Review, November 1997, p 16.
[13] The present writer endeavoured (unsuccessfully) to ameliorate the Convention model's dismissal mechanism: see Constitutional Convention, Transcript of Proceedings, 12 February 1998, pp 608, 626, 627.
[14] Irish Constitution art 12.10.7°.
[15] See A Mason, note 11 supra, p 5.
[16] This is ironic in view of its origination with two Senators.
[17] A Mason, note 11 supra, p 4.
[18] For such a provision, see the present author's draft republican Constitution s 60(2), in G Winterton, note 5 supra, p 19. The Governor of a State which retains links with the Crown (if that occurs) should be equally eligible. (But see John Williams' article, below, at .)
[19] J Hirst, note 2 supra, at 60. Compare Saunders, below, at ; J Williams, below, at .
[20] J Williams, below, at ..........
[21] L Kirk, below, at .......
[22] C Saunders, below, at .........
[23] G Winterton, note 5 supra, pp 19-20 (s 60(3) and (4)).
[24] See Commonwealth Constitution s 72(ii).
[25] See G Winterton, "A New Constitutional Preamble" (1997) 8 Public Law Review 186.
[26] Compare H Irving, "A Conventional Convention" (1998) Arena Magazine, No 34, 5 at 7.
[27] Final Resolutions, note 10 supra, at 57.
[28] See J Toohey, "A Government of Laws, and Not of Men?" (1993) 4 Public Law Review 158 at 169-170.
[29] See the present writer's remarks, Constitutional Convention, note 13 supra, 11 February 1998, p 548.
[30] Final Resolutions, note 10 supra, at 57.
[31] Alex Reilly's article, below, at .
[32] J Williams, below, at
[33] H Gibbs, below, at .
[34] See Professor Greg Craven's remarks, Constitutional Convention, note 13 supra, 9 February 1998, p 354.
[35] This was suggested at the Convention by the present writer.
[36] See A Mason, note 11 supra, p 7.
[37] Ibid.
[38] (1992) 174 CLR 455.
[39] Ibid at 475 (Brennan J), 486 (Deane and Toohey JJ).
[40] Reference re Remuneration of Provincial Court Judges [1997] 3 SCR 3 at 68-76.
[41] Ibid at 69, 75.
[42] A Mason, note 11 supra, p 7.
[43] A Reilly, below, at .
[44] Art 45. The Indian Constitution's provision excluding justiciability of its "Directive Principles of State Policy" is narrower: those provisions "shall not be enforceable by any court" (art 37). Emphasis added.
[45] Commonwealth of Australia Constitution Act 1900 (UK), Preamble.
[46] H Gibbs, below, at .
[47] C Saunders, below, at . Compare B Galligan, note 11 supra, at 20.
[48] See, for example, G Winterton, note 5 supra.
[49] Final Resolutions, note 10 supra, at 56.
[50] Republic Advisory Committee, An Australian Republic: The Options - The Report, AGPS (1993), pp 102-105.
[51] Senator Robert Hill was a signatory to the successful "Bipartisan Appointment of the President" model.
[52] B Galligan, note 11 supra, at 18, 21.
[53] See his remarks, Constitutional Convention, note 13 supra, 2 February 1998, p 2.
[54] Ibid.
[55] See, likewise, C Saunders, below, at .
[56] See Moira Rayner's article, below.
[57] See ibid at .
[58] Ibid at . Compare H Nathan, "The Convention From the Inside" (1998) 42 (4) Quadrant 21 at 23.
[59] The delegates to the 1897-98 Convention from New South Wales, Victoria, South Australia and Tasmania were popularly elected. Those from Western Australia were elected by its Parliament, and Queensland did not participate. Seven provisions of the Convention's draft Constitution were altered at the Premier's Conference of January 1899 and the British Parliament altered s 74 (and a few other provisions in minor respects).
[60] J Quick and RR Garran, The Annotated Constitution of the Australian Commonwealth, Angus & Robertson (1901), p 154, quoted by C Saunders, below, at .
[61] See G Winterton, "Australia's Constitutional Convention 1998" (1998) 5 Agenda 97 at 100.
[62] For favourable comment in this respect, see Saunders, below, at ; Mike Steketee's article below, at ; John Uhr's article below, at .