by John Pyke, Queensland candidate for the Constitutional Convention
66. Rule of law.
(1) The conduct of the executive government is presumed to be subject to any
Act of the Parliament of the Commonwealth unless express provision is made to
the contrary in that Act; and to any Act of a relevant Parliament of a State
and to liabilities under the common law, unless express provision is made to
the contrary by Act of the Parliament of the Commonwealth.
[This is a reversal of the current, and iniquitous, doctrines of "Crown
immunity" and the implied immunity of the Commonwealth from State laws. There
may well be circumstances in which government departments and authorities
should not be subject to the same laws as the rest of us, but there should be
no presumption of immunity; any immunity should be expressly
granted by Act of Parliament.]
(2) The executive government only has such powers over citizens and residents
of Australia as are given to it by law.
[This codifies the principle in Entick v Carrington (1765). It doesn't quite mean that
you should be able to find all the executive's coercive powers in Acts of Parliament -
some "prerogative" powers are recognised in the common law. (I believe that they should
be codified eventually.)]
67. No person above the law.
In their conduct as individuals, neither the President nor any member of the
executive government is immune from the ordinary law of the land.
[This is inserted to make it clear that any immunity granted by laws referred
to in the previous section can only apply to official action, and not to
private conduct of executive officers. We currently take it for granted that
nobody in Australia is above the law, but to spell it out might have
educational value. In the Winterton
draft (see s.59(13)) any criminal prosecution of the
President is subject to the consent of both Houses of Parliament - but if s/he
has done something criminal s/he should be prosecuted. If anyone initiates a
prosecution for political purposes the courts have ample power to dismiss or
adjourn proceedings.]
68. Duties and rights of members of the executive government.
(1) All members of the executive government shall carry out their duties
impartially, ethically and in the public interest.
(2) Every member of the executive government has the duty to reveal any information that comes to his or her attention about misconduct in public administration - to a more senior member of the government where such revelation seems likely to result in an appropriate response, but in other cases to the public or press. No member of the executive government shall be punished, or prejudiced in his or her future employment, for having revealed such information.
69. Rights of persons against the executive government
(1) Every citizen, and every person legally residing in Australia, has the
right to appeal against any decision of the executive government contrary to
his or her interests on the ground that it involved a misapplication of law or
was made in breach of the rules of procedural fairness.
(2) Every citizen, and every person legally residing in Australia, has the right of access, free of charge where a record directly concerns his or her rights and for a reasonable charge in other cases, to records held by the executive government, except for any record or part of a record which:
(a) relates to national defence or foreign policy, where its disclosure would harm the national interest;
(b) consists of privileged or confidential trade secrets, or commercial or financial information, obtained from a person;
(c) consists of personnel and medical files, or similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
(d) consists of information compiled for law enforcement purposes, but only to the extent that the production of such information:(i) could reasonably be expected to interfere with law enforcement proceedings;
(ii) would deprive a person of a right to fair trial or impartial adjudication;
(iii)could reasonably be expected to constitute an unwarranted invasion of personal privacy;
(iv) could be reasonably be expected to disclose the identity of a confidential source (including a State, local, or foreign agency or authority which furnished information on a confidential basis), or information furnished by a confidential source;
(v) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to increase the risk of circumvention of the law, or
(vi) could reasonably be expected to endanger the life or physical safety of any individual.
Every reasonably segregable portion of a record shall be provided to any person requesting a record after deletion of the portions which are exempt under this subsection.
[Ss.65-69 are totally new; ss. 65-69(1) have no particular precedents, though they are based on common concepts in administrative law, and sub-s. 69(2) is adapted from the US Freedom of Information Act (5 USC para 552).]
70. Defence services.
The command in chief of the defence services of the Commonwealth is vested in
the Executive Council.
[This is a realistic redrafting of the current s.68. Ever since federation,
the highest-level orders to the defence services have been made by the Cabinet
(sometimes glorified by the title of "War Cabinet"), not by
the
Governor-General, who has been a purely notional commander-in-chief. But then
the power of command should be qualified, so that it gives no impression that
the Defence Minister, or Executive Council, can, for example, call out the
troops to shoot the Opposition...]
The first duty of the defence services of the Commonwealth is to defend democratic institutions of government in accordance with the Constitution.
Members of the defence services of the Commonwealth are compelled to obey only lawful commands. In determining whether a command is lawful, notice shall be taken of the provisions of this section and of the rules of war at international law.
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