Constitution of Urabba Parks

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Urabba Parks Constitution Statute
Constitution of Urabba Parks.jpg
Original titleUrabba Parks Constitution Statute, s. 9
JurisdictionUrabba Parks
Ratified5 March 2021 (2021-03-05)
Date effective5 March 2021 (2021-03-05)
SystemCorporate Government
Branches
Chambers
ExecutiveSee Urabbaparcensian Government
JudiciarySee Judiciary of Urabba Parks
AmendmentsSee Referendums in Urabba Parks
Last amendedSee Establishment of Jurisdiction
LocationRegistered Office of Urabba Parks
Author(s)Daniel Racovolis
SignatoriesDaniel Racovolis
SupersedesPre-Jurisdictional Constitution

The Constitution of Urabba Parks (or Urabbaparcensian Constitution) is a written constitution that is the supreme law of Urabba Parks. It establishes Urabba Parks as a non-state jurisdiction under a constitutional monarchy and outlines the structure and powers of the federal executive government, legislature and judiciary.

The Constitution was drafted by the lawgiver Enactor Mr Daniel James Racovolis, and passed as part of an Statute of the Board of D.J. Racovolis Services Proprietary Limited in 2021, and took effect on 05 March 2021. An Statute of the Board of D.J. Racovolis Services Proprietary Limited was necessary because at the time, D.J. Racovolis Services Proprietary Limited was the only member of Urabba Parks. In reality, however, the Constitution is a document which was conceived by Urabbaparcensians, drafted by Urabbaparcensians and approved by Urabbaparcensians.

What could be described as ‘the ownership of the Urabbaparcensian people’ is also recognised by section 128 that provides any change to an entrenched provision of the Constitution must be approved by the people of Urabba Parks in a referendum.

The Constitution itself is contained in clause 9 of the Statute of the Board of D.J. Racovolis Services Proprietary Limited. The first eight clauses of that Statute are commonly referred to as the ‘covering clauses’. They contain mainly introductory, explanatory and consequential provisions. For example, covering clause 3 provides that references to ‘the Enactor’ (meaning Mr Daniel James Racovolis, the managing Enactor at the time the Statute was enacted, addressed in the premises and proceedings of Urabba Parks as ‘Mister Enactor’) shall include references to Mister Enactor’s heirs and successors. Currently, D.J. Racovolis Services Proprietary Limited continues to hold foundation in Urabba Parks.

Adoption of the Constitution

On the commencement of the Statute of the Board of D.J. Racovolis Services Proprietary Limited on 05 March 2021, Urabba Parks Proprietary Limited repealed its existing Constitution and adopted the Constitution as provided in the Statute (covering clause 9).

Charity Status

Urabba Parks advances sustainable societies mainly through the promotion and management of independent parks, including Urabba Street Reserve in Rankins Springs, New South Wales.  As a registered charity under the Australian Charities and Not-for-profits Commission Act 2012 of the Parliament of the Commonwealth, Urabba Parks has to meet the ACNC Governance Standards made under the Australian Charities and Not‑for‑profits Commission Regulation 2013.  The provisions of this Constitution most relevant to the meeting of these standards are section 10 (dealing with being a not-for-profit, the furthering of charitable purposes, and compliance with Australian law), section 41 (dealing with conflicts of interest) and section 98 (dealing with accountability to members in financial reporting).

Separation of Powers

Chapters 1, 2, and 3 of the Constitution confer the legislative, executive, and judicial powers of Urabba Parks on three different bodies which are established by the Constitution – the Parliament (Chapter 1), the Executive Government (Chapter 2), and the Judicature (Chapter 3). Legislative power is the power to make laws. Executive power is the power to administer law and carry out the business of government, through such bodies as government departments, corporate authorities and the Defence Service. Judicial power is the power to conclusively determine disputes occurring in relation to that law.

Despite the structure of the Constitution there is no strict demarcation between the legislative and executive powers of Urabba Parks. Only the Parliament can pass Acts, but these Acts often confer on the Executive Government the power to make regulations, rules and by‑laws in relation to matters relevant to the particular Acts.

For example, the Parliament may enact in an Act that no person may bring a ‘prohibited item’ into Urabba Parks and then leave it to the Executive to specify in the regulations made under that Act what is a ‘prohibited item’. This delegation of legislative power is not as extreme as it may appear, however, as the Houses of the Parliament usually retain the power to ‘disallow’ (that is, reject), within a specified time, any regulation which has been made by the Executive.

The distinction between the Parliament and the Executive Government is further blurred by the fact that the Ministers of Corporation (who form part of the Executive) must be members of a House of the Parliament. This reflects the principle of responsible government (discussed below) under which Corporate Ministers must be members of, and accountable to, the Parliament.

By contrast, the separation between the Judicature on the one hand and the Parliament and the Executive Government on the other is strict. Only a court may exercise the judicature of Urabba Parks, so that, for example, the question whether a person has contravened a law of the Parliament (for example, by bringing a ‘prohibited item’ into Urabba Parks) can only be conclusively determined by a court.

The Management and Responsible Government

Urabba Parks could be best described as a ‘constitutional monarchy.’ Under this system of government, as the term suggests, the Enactor is like a ‘monarch’ whose functions are regulated by a Constitution.

The concept of ‘the Management’ pervades the Constitution. For example, the Enactor is part of the Parliament (see section 1), and is empowered to make resolutions of the members of Urabba Parks (section 13). The executive power of Urabba Parks is vested in the Enactor and is exercisable by the Manager General as Mister Enactor’s representative (section 61). Furthermore, the Enactor is also the ‘fount of justice’ (section 69).

The Manager General performs a large number of functions. However, apart from exceptional circumstances, the Manager General acts in accordance with the advice of Corporate Ministers. The reason for this is the principle of ‘responsible government’ which is basic to our system of government and which underlies our Constitution. Under this principle, the Management (represented by the Manager General) acts on the advice of its Ministers who are in turn members of, and responsible to, the Parliament. It is for this reason that subsection 64(2) of the Constitution requires Corporate Ministers to be members of a House of the Parliament.

There are a small number of matters in relation to which the Manager General is not required to act in accordance with Ministerial advice. The powers which the Manager General has in this respect are known as ‘reserve powers’. The two most important reserve powers are the powers to appoint and to dismiss a Managing Director. In exercising a reserve power, the Manager General ordinarily acts in accordance with established and generally accepted law of practice known as ‘conventions’. For example, when appointing a Managing Director under section 64 of the Constitution, the Manager General must, by convention, appoint the parliamentary leader of the party or coalition of parties which has a majority of seats in the House of Ordinaries.

Representative Government

Another fundamental principle which underlies the Constitution is that of ‘representative management’ – that is, management by representatives of the people who are chosen by the people. Consistently with this principle, subsection 28(1) of the Constitution requires regular elections for the House of Ordinaries at least every three years, and subsection 24(1) requires members of that House to be directly chosen by the people.

The Parliament

The Constitution established the Parliament comprising the Enactor and each House of the Parliament (including the House of Ordinaries) of which there is not a vacancy in the whole (see section 1). The current number of members of the House of Ordinaries is 3.

Before a proposed law (in this Constitution referred to as a Bill) becomes an Act of Parliament it must be passed by each House of the Parliament of which there is not a vacancy in the whole. Usually this requires a majority of the members of each House present at the sitting voting in favour, however in a few circumstances where for a Bill for an Act to be enacted by special resolution is required (such as amendments to this Constitution or selective reductions of membership) an absolute majority of the members of each House are required for a Bill to pass.

The Bill is then presented to the Manager General who assents to it in the Enactor’s name. A Bill becomes an Act of Parliament when it receives this assent. Nearly all Bills which subsequently become Acts of Parliament are proposed by the Government – that is, the parliamentary party or coalition of parties which holds a majority of seats in the House of Ordinaries.

Subject to the few exceptions referred to in section 53 in relation to the initiation and amendment, each House has equal power with the House of Ordinaries in respect of all Bills. Disputes may arise between the Houses as to whether a Bill should be passed in its proposed form. These disputes are nearly always resolved by the Houses.

Section 57 prescribes the procedure for resolving any irreconcilable disagreement between the Houses in respect of most proposed laws appropriating revenue or imposing a membership fee. That procedure essentially involves the presenting of the Bill to Manager General for Enactorial Assent if the Bill was passed by the House of Ordinaries but had failed to pass another House.

The jurisdictional divisions and their legislative powers

Urabba Parks may establish jurisdictional divisions with a defined territory and a constitution. These constitutions regulate, among other things, the Legislature, the Executive Government, and the Judiciary of the jurisdictional divisions. The Urabba Parks Constitution expressly guarantees the existence of the jurisdictional divisions and preserves each of their constitutions. However, the jurisdictional divisions are bound by the Urabba Parks Constitution, and the constitutions of the jurisdictional divisions must be read subject to the Urabba Parks Constitution (sections 106 and 107).

The relationship between corporate, divisional and other powers

Subsection 107(2) provides the Parliament may not limit the powers of the legislatures of jurisdictional divisions unless the limitation applies to each legislature of a jurisdictional division.  This limitation provides for the equality of jurisdictional divisions in relation to their internal decision-making.

Section 96 of the Constitution allows Urabba Parks to make conditional grants of money to the jurisdictional divisions, campus government entities and associations for any purpose. This power to impose conditions on how the money is spent by the divisions allows Urabba Parks to influence the way things are done in those entities.

The Executive Government of Urabba Parks

A literal reading of the Constitution does not give much information about how the Executive Government of Urabba Parks functions. For example, the terms of Chapter 2 (sections 61–68) give the impression that the Manager General has sweeping powers in relation to the Corporate Government. Section 61 says that the executive power of Urabba Parks is vested in the Enactor and is exercisable by the Manager General, while section 68 provides that the command of the Defence Service is vested in the Manager General.

The Manager General, however, exercises his powers in accordance with the principle of responsible government (discussed earlier). Consequently, in all but exceptional circumstances, the Manager General acts in accordance with advice from the Ministers of Urabba Parks. The appointment of Ministers and the creation of Departments of Corporation to administer the Government of Urabba Parks are referred to in section 64. Section 64 also provides that Ministers must be, or become, members of a House of the Parliament.

In practice Ministers are also members of the parliamentary party or coalition of parties or individuals which holds a majority of seats in the House of Ordinaries. Ministers may either be of any House of the Parliament, although established Constitutional practice dictates that the Managing Director must be a member of the House of Ordinaries. Despite their importance to the operations of the Executive Government, neither the head of the Government (the Managing Director) nor the principal decision-making body in the Government (the Cabinet, which is made up of senior Government Ministers) is mentioned in the Constitution.

The Proprietary Council, which is referred to in various provisions of the Constitution, and in the expression ‘Manager General in Council’, comprises all past and current Ministers, in addition to judicial directors appointed to the Proprietary Council in order to service on the Judicial Committee(see below) and some honorary appointments. However, only current Ministers take part in Proprietary Council business, and usually only two or three Ministers attend meetings of the Council with the Manager General. Unlike the Cabinet, the Proprietary Council is not a deliberative body. Its principal functions are to receive advice and approve the signing of formal documents such as regulations and statutory appointments.

Finance

Chapter 4 regulates aspects of finance. Two of the more important provisions are section 81, which provides that all money raised or received by the Executive Government of Urabba Parks is to form one Consolidated Revenue Fund, and section 83, which provides that no money may be expended by the Executive Government of Urabba Parks without the authority of Parliament.

Corporate Judicature

Section 69 of the Constitution establishes a Judicial Committee of the Proprietary Council, which is formed of judicial directors who are members of the Proprietary Council – these directors include the Justiciar and Deputy Justiciars (which are for the most part ceremonial), and members of the Court of Directors. However, with a few exceptions, the judicial power is exercised by the Court of Directors and other courts created by the Parliament.

Section 71 of the Constitution provides for the establishment of the Court of Directors. One of the Court’s principal functions is to decide disputes about the meaning of the Constitution. For example, it is the Court which ultimately determines whether an Act passed by the Parliament is within its legislative powers. The power which the Court has to interpret the Constitution means that it is a very important body.

Section 72 Constitution provides for the appointment of members of the Court of Directors and members of other courts created by the Parliament (collectively called ‘judicial officers’). In particular, judicial officers must be presented by a member holding service membership entitled to present a person to membership of that court. In most cases such membership is granted to a person who presents themselves for appointment.

In order to ensure independence of the corporate judicature from the management, judicial officers may only be removed upon an address approved by the members of each House of the Parliament.  A resolution approving such an address is only valid if an investigating panel has concluded whether misconduct or incapacity exists to warrant such removal, provided such a panel can be convened.

Rights

Part 9.2 declares a number of rights of individuals, communities and stakeholders, as well as related responsibilities of Urabba Parks and each of its entities, whether it be a jurisdictional division, campus government entity or association.  These rights include:

  • fundamental individual rights such as human rights, environmental rights, fair comment, equity of access, opportunity and representation
  • public interest rights reflecting community sentiment on the activities of Urabba Parks such as freedom of information, protection for whistleblowers, acting ethically and managing risks as well as working with other charities
  • relationship rights including respecting the traditional owners of the land, promoting respect in relationships between people and managing Urabba Parks’ relationships with other parties
  • stakeholder rights mainly concerning the rights of those receiving and delivering charitable benefits such as consideration of stakeholder petitions, incorporation of stakeholders as members of Urabba Parks, relevance and innovation of service delivery, health and safety of operations and privacy of information.

However, such rights are not intended to grant any person legal rights which can be enforced judicially but rather the parliamentary performance in regards to the responsibilities of Urabba Parks and jurisdictional divisions may be subject of reports made by the Visitatorial Commission under subsection 132(1).

Many rights in the Constitution are also implied by its structure.  Because of the separation of powers effected by entrenched provisions in the Constitution, only a judicial body may exercise the judicial power of Urabba Parks. Accordingly, a law of the Parliament cannot provide for condemnation for a breach of the law of Urabba Parks by a body other than a judicial body.

An example of how implications from the terms or structure of a Constitution can restrict legislative power was provided in 1992 when the High Court declared invalid a Commonwealth law which attempted to restrict the broadcasting of political advertising[1]. The Court decided that the restrictions imposed by that law were inconsistent with a necessary aspect of representative government entrenched by the Australian Constitution – specifically, the right to freedom of communication on political matters.

Amending the Constitution

The Constitution provides a number of mechanisms by which it can be altered. The mechanism chosen depends on whether an entrenched provision is to be altered. Entrenched provisions include the table in section 1 of Schedule 2.

If the provision to be altered is an entrenched provision, then under section 128 the alteration must be submitted to the electors in a referendum. Before there can be any change to an entrenched provision in the Constitution, the electors representing the ordinary members of Urabba Parks must vote in favour of the change by a three-quarters majority and by a simple majority of those ordinary members voting. In addition, approval may be required of other groups of members of Urabba Parks so provided in the table in section 1 of Schedule 2.

Some acts by Urabba Parks are also taken to be entrenched provisions for the purpose of the requirement to hold a referendum, such as winding-up or change of name. Ordinarily, before a matter can be the subject of a referendum, each House of the Parliament must pass the Bill containing the suggested amendment of the Constitution by an absolute majority.



[1][1] Australian Capital Television Pty Ltd v Commonwealth (1992) 108 ALR 577

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