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«The Hon Sir Gerard Brennan AC KBE, formerly Chief Justice of Australia. 17 February 2011 1. I acknowledge the Gadigal people of the Eora nation on ...»

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“Constitutional Issues relating to the Republic as they Affect the States” (1998) 21(3) UNSW Law Journal 750, 756; See the collection of descriptions listed by Janine Pritchard in “Monarchical States under a Republican Commonwealth” in Sarah Murray (ed), Constitutional Perspectives on an Australian Republic (The Federation Press, 2010) 106.

Annotated Constitution, p 930.

McGinty v Western Australia (1996) 186 CLR 140, 171-173, 189, 208-209, 216, 251 and cases there cited: Victoria v The Commonwealth (1971) 122 CLR 353, 371; New South Wales v The (Commonwealth) which was enacted pursuant to s 51 (xxxviii) of the Constitution 75. The Australia Act lifted restrictions on the powers of the Parliaments of the States, terminated all responsibility of the United Kingdom government for the States 76 and conferred ultimate authority to assent to State legislation on the State Governor77. Section 7 of the Australia Act declared State Governors to be the Queen’s representatives in the respective States but the only State function left to the Queen is a formal power to appoint and to terminate the appointment of the Governor – a power exercised on the advice of the Premier 78. That formality can be discharged by a President without affecting the operation of a State constitution or the political authority of a Premier. There is no logical reason to retain a monarchical form of government for a State provided the transition leaves in place every other element of the State Constitution. What should be avoided is any attempt either to impose any change of substance on the constitutions of the States or to affect the capacities which the States respectively enjoy to alter their constitutions 79. Section 7 of the Australia Act could be Commonwealth (1975) 135 CCLR 337, 372; China Ocean Shipping Co v South Australia (1979) 145 CLR 172, 182; Also see Yougarla v Western Australia (2001) 207 CLR 344, 369; John Quick and Robert Garran, The Annotated Constitution of the Commonwealth (Sydney, Legal Books, 1901, 1976 Reprint) 930; cf Western Australia v Wilsmore [1981] WAR 179.

Port MacDonnell Professional Fishermen’s Association Inc. v South Australia (1989) 168 CLR 340, 381; Attorney-General (WA) v Marquet (2003) 217 CLR 545, 571.

Section 10.

Section 9.

Section 7(3).

See Twomey “One In, All In...” above n 66, 37. They are immune from Commonwealth legislative impairment of their structure or capacity to function: Melbourne Corporation v The Commonwealth(1947) 74 CLR 31 at 56, 60, 66, 74, 82; The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 139-140, 213-215, 280-281; Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192 at 217-218, 226-227, 231, 232, 248, 260;

Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188, 230-232. 248-249;

McGinty v Western Australia (1996) 186 CLR 140, 173; Austin v The Commonwealth (2003) 215 CLR 185; Clarke v Commissioner of Taxation (2009) 83 ALJR 1044.

repealed and the Queen’s formal power of gubernatorial appointment could be transferred to a republican President by a Commonwealth Act passed at the request of all State Parliaments pursuant to s 15(1) of the Australia Act and s 51 (xxxviii) of the Constitution – the procedure followed by the States in 1999 to exclude the operation of s 7 of the Australia Act 80. If that unanimity is no longer achievable, the same result would follow from an appropriate amendment of s 106 81. To allow voters, if they wish, to distinguish between the Commonwealth and the State governments, an amendment to s 106 could be submitted to a referendum separate from, but contemporaneously with, the referendum to introduce a Commonwealth republic.

41.There is a question whether an amendment to allow the repeal of s 7 of the Australia Act would attract the operation of paragraph 5 of s 128 which requires, in addition to the referendum majorities, a majority of voters in a State to approve certain laws relating to the State. Stephen Gageler, supported by Jack Richardson, Gerard Carney and Anne Twomey, does not think that such an amendment would attract the operation of paragraph 5 of s 128 82. However, See footnote 71; See also Gerard Carney The Constitutional Systems of the States and Territories above n 66, 331.

Section 15(3) of the Australia Act avoids the possibility that the regime created pursuant to that Act and secured by s 51(xxxviii) of the Constitution could not be affected by a constitutional amendment of s 106.

Gageler “Amending the Constitution through s 128” in Constitutional Perspectives on an Australian Republic, p.19; Richardson Opinion in the matter of s 128 of the Constitution reprinted in App A of Report of Standing Committee B to Executive Committee p 18 in Proceedings of the Australian Constitutional Convention and Standing Committee Reports(Melbourne 1975) ; Carney The Constitutional System of the Australian States and Territories, above n 66; A. Twomey The Constitution of New South Wales (2004) 788-791; Quick and Garran The Annotated Constitution of the Australian Commonwealth (Sydney, Legal Books, 1976) p 991.

McHugh and Gummow JJ in McGinty v State of Western Australia83 made “passing reference” to that paragraph as applicable to “provisions of the Constitution in relation to a State”. This broad view of the paragraph might be only tentative. The former view seems preferable.





The Problem of Constitutional Amendment

42.The Constitution proper is a schedule to the Imperial Constitution Act 1900. The preamble to the Constitution Act recites an agreement to unite “under the Crown of Great Britain and Ireland” and the Covering Clauses proclaim a monarchical form of government. As Sir Anthony Mason has commented 84 to amend the Constitution while leaving those provisions in place would create “a veritable constitutional camel”. Despite the inelegance, however, an amendment of the Constitution introducing a Republic would be effective even if the Preamble and Covering Clauses remained 85.

The removal of monarchical references in the Constitution would leave the Preamble and the monarchical provisions of the Covering Clauses ineffectual. The 1999 Referendum Bill simply ignored those provisions. Nevertheless, it would be desirable as well as elegant to repeal the Constitution Act other than the Constitution (1996) 186 CLR 140, 237, 275.

“Constitutional Issues relating to the Republic as they affect the States” (1998) 21(3) UNSW Law Journal 750, 753.

See Opinion of Dennis Rose QC, reprinted in the Republic Advisory Committee, An Australian Republic – The Options (1993) Vol 2, Appendix 8; Stephen Gageler “Amending the Commonwealth Constitution through Section 128 – A Journey through its Scope and Limitations” in Sarah Murray (ed), Constitutional Perspectives on an Australian Republic (Sydney, Federation Press, 2010) 6,16-17.

proper. A succession of Imperial Statutes raises some interesting questions about the steps that need to be taken to achieve that repeal.

These questions have been addressed in a series of scholarly articles which identify the problems and propose some solutions 86. I list some of the sources to which I am indebted and, at the end of the written paper, I have appended some draft clauses which might be considered in drafting a Bill for a referendum to amend the Constitution.

43.In 1900, no repeal of the Constitution Act would have been possible:

it would have been repugnant to a law of the Imperial Parliament and therefore “absolutely void and inoperative” by force of s 2 of the Colonial Laws Validity Act 1865. That provision was repealed in its application to laws of the Commonwealth by s 2 of the Statute of Westminster 1931 87 but s 8 of that Statute declared that the repeal did not confer any power to repeal or alter the Constitution Act. By s 8 the Imperial Parliament denied Australia’s power to repeal or alter the Constitution Act either by the referendum procedure under s 128 or by an ordinary law of the Commonwealth.

Quick and Garran, The Annotated Constitution of the Commonwealth (Sydney, Legal Books, 1901, 1976) 989-990; George Winterton, Monarchy to Republic – Australian Republican Government (Melbourne, OUP, 1986), Ch 8; Anne Twomey, The Constitution of New South Wales (Sydney, Federation Press, 2004) 788-791; Opinion of Dennis Rose QC, reprinted in the Republic Advisory Committee, An Australian Republic – The Options (1993) Vol 2, Appendix 8;

Stephen Gageler and Mark Leeming, ‘An Australian Republic; Is a Referendum Enough’ (1996) 7 Public Law Review 143; Geoffrey Lindell and Dennis Rose, ‘A Response to Gageler and Leeming: “An Australian Republic: Is a Referendum Enough?”’ (1996) 7 Public Law Review 155;

Sir Anthony Mason “Constitutional Issues relating to the Republic as they affect the States” (1998) 21(3) UNSW Law Journal 750, 755; S Gageler, “Amending the Commonwealth Constitution through Section 128 – A Journey through its Scope and Limitations” in Sarah Murray (ed), Constitutional Perspectives on an Australian Republic (Sydney, The Federation Press, 2010) 6,16.

Adopted by the Commonwealth in 1942.

44.In 1986 the Australia Act was enacted here88 and in the United Kingdom89 “to bring constitutional arrangements affecting the Commonwealth and the States into conformity with the status of the Commonwealth…as a sovereign, independent and federal nation.” Section 1 provided that thereafter no United Kingdom statute could extend to the Commonwealth or the States or Territories. Section 15 provided for the repeal or amendment of the Statute of Westminster and of the Australia Act itself by an Act of the Commonwealth Parliament, enacted either at the request or with the concurrence of all State Parliaments 90 or in exercise of a power conferred on the Parliament by a s 128 amendment to the Constitution 91. Thus the Commonwealth Parliament acquired the power to remove the last legislative Imperial fetters on Australian legislative power, dependent on either the unanimous approval of State Parliaments or the approval of the necessary majorities of the Australian people to carry a referendum. Once the Statute of Westminster or at least s 8 thereof is repealed in either of the ways provided by s 15 of the Australia Act, the preamble and the Covering Clauses of the Constitution Act can be repealed and any provisions having continuing relevance to our Constitution (for example, Covering Clause 5) can be translated into the Constitution proper. There seems Pursuant to the States’ request under s 51(xxxviii).

In accordance with the Commonwealth’s request and s 4 of the Statute of Westminster.

Section 15(1) and (2). No such law has been proposed, but note the unanimous request Acts in 1999, fn 71 supra.

Section 15(3). This subsection may merely confirm the power already available under s 128: see L Zines The High Court and the Constitution (Sydney, Federation Press, 5th ed 2008) pp 421-423.

to be a consensus about the sufficiency of that procedure 92. Repeal of s 8 also opens the way to empowering the Parliament to repeal any or all Imperial Acts applicable to Australia, consistently with s 2 (2) of the Statute of Westminster.

45.Another view, endorsed by the 1988 Constitutional Commission, is that, once it is recognized that the Commonwealth is a “a sovereign, independent and federal nation” and that the British Parliament has renounced authority to legislate for Australia, s 8 of the Statute of Westminster no longer limits the scope of the amendments which can be effected by the referendum procedure under s 128, that section being sufficient by itself to “[encompass] all matters relating to our mode of governance”93 In Marquet’s Case 94 a majority of the Court observed that constitutional arrangements in Australia have changed in fundamental respects and that “constitutional norms, whatever be their historical origins, are now to be traced to Australian sources”. But the Australia Act is an Australian source and it affirms the operation of the Statute of Westminster, including s 8, unless the Statute is amended as s 15 provides. With respect, the view of the Constitutional Commission must be of doubtful validity.

See Mason, “Constitutional Issues relating to the Republic as they Affect the States” (1998) 21(3) UNSW Law Journal 750, 754; Geoffrey Lindell, “Why is Australia’s Constitution Binding?” (1986) 16 Fed LR 29, 40; Stephen Gageler and Mark Leeming, “An Australian Republic: Is a (1996) 7 Public Law Review 143; Geoffrey Lindell and Dennis Rose, “A Response to Gageler and Leeming” (1996) 7 Public Law Review 155, Stephen Gageler, “Amending the Commonwealth Constitution through Section 128 – A Journey through its Scope and Limitations” in Sarah Murray, Constitutional Perspectives on an Australian Republic (Sydney, Federation Press, 2010) 6,16; Appendix 8 to The Report of the Republic Advisory Committee (AGPS, 1993), Advice by Dennis Rose QC as Acting Solicitor General, paras 1-29; Anne Twomey The Constitution of New South Wales (Sydney, Federation Press, 2004), 781-782; Anne Twomey The Australia Acts 1986 (Sydney, Federation Press, 2010) 339-341.

Vol 1, Final Report of the Constitutional Commission, pp 122-123, par 3.123.

Attorney-General (WA) v Marquet (2003) 217 CLR 545, 570.

46.If repeal of s 8 of the Statute of Westminster is desirable before a republican Constitution comes into effect, a Referendum Bill should include two provisions in addition to those prescribing the republican form of government. One provision would authorize the Parliament under s 15(3) of the Australia Act to repeal s 8; the other would delay the coming into effect of the republican provisions until the Parliament had repealed s 8.



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