Constitution of Urabba Parks/Overview
This is an overview of the Constitution of Urabba Parks by the Urabbaparcensian Company Secretary.
Overview[edit | edit source]
The Urabbaparcensian Constitution can be described as ‘the birth certificate of a charity’. It also provides the basic rules for the government of Urabba Parks. Indeed, the Constitution is the fundamental law of Urabba Parks binding everybody including the Corporate Parliament and the legislature of each jurisdictional division. Accordingly, even an Act passed by a Parliament is invalid if it is contrary to the Constitution.
Background to the Constitution[edit | edit source]
The Constitution was drafted by the Founder Mr Daniel James Racovolis in the form of the Urabba Parks Proprietary Limited Constitution Statute 2021, which was adopted by special resolution of Urabba Parks on 5 March 2021. In drafting the Statute, the Founder intended to create a Hellenic and Landcare jurisdiction, a charitable democracy having the values of responsibility, accountability and creativity.
What could be described as ‘the ownership of the Urabbaparcensian people’ is recognised by section 128 that provides any authorisation of entrenched matter (including the alterations of many provisions of the Constitution) must be approved by the members of Urabba Parks in a referendum.
The Constitution itself is contained in clause 9 of the Statute of the Founder. 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’ shall include references to the Founder’s heirs and successors in Management.
Adoption of the Constitution[edit | edit source]
On the commencement of the Statute of the Founder on 5 March 2021, Urabba Parks repealed its existing Constitution and adopted the Constitution as provided in the Statute (covering clause 9). This is because Urabba Parks had first made a special resolution under section 136 of the Corporations Act 2001 of the Parliament of the Commonwealth to repeal its existing governing document and adopt the Constitution as provided.
The Federal Structure[edit | edit source]
The Constitution establishes a federal system of government. Under a federal system, powers are distributed between a central government and constituent governments. In Urabba Parks, that distribution is between Urabba Parks and its regions and other jurisdictional divisions. (The relationship between Urabba Parks and the jurisdictional divisions is discussed below.
Charity Status[edit | edit source]
Mr Racovolis founded Urabba Parks Proprietary Limited on 3 July 2012 as a charity to own and operate Urabba Street Reserve, a quarter-acre block located at 4 Urabba Street Rankins Springs, New South Wales 2669. Having originally acquired the property on 10 August 2011, the Founder transferred Urabba Street Reserve to the newly formed Urabba Parks on 9 July 2012 for the nominal sum of $100. At this time Urabba Parks applied for registration as a charity with the Australian Government’s newly formed charity regulator, the Australian Charities and Not-for-profits Commission (ACNC). The ACNC granted Urabba Parks registration as a charity on 3 December 2012. As a registered charity under the Australian Charities and Not-for-profits Commission Act 2012 of the Parliament of the Commonwealth, Urabba Parks is required 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[edit | edit source]
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 legal disputes, traditionally exercised by courts in disciplinary trials and litigation about such things as contracts and accidents.
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[edit | edit source]
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 Park Minister. 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 Park Minister 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[edit | edit source]
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.
Corporate Parliament[edit | edit source]
The Constitution established the Corporate 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 a 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.
Corporate Legislative Powers[edit | edit source]
The Constitution confers the power to make laws on the Corporate Parliament. However, the power of the Corporate Parliament to make laws is limited to particular subjects. Most of these subjects are listed in sections 51 and 52. They include defence; external affairs; approved benefits; taxation; external, trading, charitable and financial entities; the opening, maintenance and closing of giving accounts and giving pools; the declaration and expulsion of Urabbaparcensian Associates; compliance with Australian law; and securities.
This list of powers given to the Corporate Parliament does not expressly refer to a number of important subjects including education, occupational health and safety, public disciplinary law, and roads – but this does not mean that those subjects are wholly outside the Parliament’s powers. For example, even though the Corporate Parliament has no specific power in relation to occupational health and safety, it can, under its compliance with Australian law power, make laws regulating the conduct of entities in relation to their occupational health and safety obligations if that is necessary to give effect to compliance with Australian law. The legislative powers of the Corporate Parliament can also be expanded by the legislatures of the regions referring matters to the Corporate Parliament under subparagraph 51(b)(xxxvii).
The jurisdictional divisions and their legislative powers
Urabba Parks may admit or 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
Although the Corporate Parliament has the power to determine the legislative power of the jurisdictional divisions, 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. Under section 109, a divisional law are invalid if inconsistent with a law made by the Corporate Parliament to the extent of the inconsistency.
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 entities allows Urabba Parks to influence the way things are done in the entities.
The Executive Government of Urabba Parks[edit | edit source]
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 Park Minister 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 Park Minister) 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.
Corporate Judicature[edit | edit source]
Chapter 3 of the Constitution (sections 69–80) 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 of the 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.
Finance[edit | edit source]
Chapter 4 of the Constitution (sections 81–105) contains provisions regulating, among other things, membership of Urabba Parks. Upon the winding up of Urabba Parks, and after the payment of its debts and liabilities, ‘charity distributions’ of the surplus funds are made to eligible charities chosen by members. Charity distributions may also be made during the existence of Urabba Parks. The amount of charity distribution in respect of a member is determined by the type and grade of membership (and in some cases the amount paid up on the membership). The types of membership include:
- Service membership: This type of membership is a debt owing to the member upon winding-up or when an application for redemption is made by the member. No charity distributions can me made in respect of other types of membership until the amount paid up on service membership and its associated interest and charity distributions have been paid in full.
- Patron membership: This type of membership, along with service membership, is known as ‘preferential membership’, meaning that obligations in respect of it must be fully satisfied before further charity distributions can be made. Once charity distributions have been made on service membership, no further charity distributions can be made until a distribution equal to the amount paid up on patron membership and its associated charity distribution entitlements have been paid.
- Affiliate membership: This type of membership is issued at a nominal value, paid up from charity distributions made during the existence of Urabba Parks applied to the membership, which is the amount of the charity distribution made in respect of the membership upon winding-up. The amount is reduced equally in proportion if there are not enough surplus funds, after the payment of the debts and obligations related to service and patron members, to make any further charity distributions.
- Ordinary membership: This membership represents the ‘ownership’ of Urabba Parks, with members of this type participating in charity distributions of surplus funds in proportion to the grade of their membership, and (with some exceptions) being able to vote in elections for members of the House of Ordinaries.
Chapter 4 also regulates other aspects of finance and trade. 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.
New Regions[edit | edit source]
The Constitution makes provision for the establishment and admission of new regions (sections 121 and 124). No new regions have been established or admitted since establishment. Under section 121, a new region can be created by an Act of the Corporate Parliament.
Territories[edit | edit source]
Section 122 empowers the Corporate Parliament to make laws in relation to ‘territories’, being parts of Urabba Parks not forming part of a jurisdictional division, or in matters in which the legislature of the jurisdictional division does not have power to make laws. In relation to territories, the Corporate Parliament can make laws on any subject – that is, it does not share its law‑making power with the regional legislatures as it does in relation to the regions.
Rights[edit | edit source]
Part 2 of Chapter 9 (sections 131 to 149) 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).
There are also the basic rights which are also part of the Australian Constitution Subsection 116(3) provides for freedom of religion. Under entrenchment 9.1 (see the table in clause 1 of Schedule 2), the Government cannot detach membership from property unless the member agrees or is fairly compensated by way of a charity distribution to a charity nominated by the member.
Many rights in the Constitution are also implied by its structure. Because of the separation of powers effected by 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. 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[edit | edit source]
The Constitution provides a number of mechanisms by which it can be altered. The mechanism chosen depends on whether an entrenched matter is to be authorised. Entrenched matters are those falling in the table of entrenchments in clause 1 of Schedule 2.
If the provision to be altered is entrenched matter, then under section 128 the alteration must be submitted to the electors in a referendum. Before there can be any change to an entrenched matter 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 constituencies so provided in the table in clause 1 of Schedule 2.
Some acts by Urabba Parks are also taken to be entrenched acts which require the approval of the members in 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.
Urabbaparcensian Company Secretary
Notes[edit | edit source]
 Australian Capital Television Pty Ltd v Commonwealth(1992)108 ALR 577