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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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47.When s 8 is repealed, the present preamble and Covering clauses of the Constitution Act should be repealed and a new preamble reciting the sovereignty of the Australian people as the source and sustaining force of the Australian Constitution should be inserted. This is no novelty. In Kirmani’s Case 95 Deane J said that “whatever be the theoretical explanation, ultimate authority in this country lies with the Australian people” and, in ACTV 96, Mason CJ recognized “that ultimate sovereignty reside[s] in the Australian people”. This assertion of Australian authority is accepted in a number of High Court judgments 97. It accords with the de facto independence of our polity and the independent, egalitarian ethos of the Australian people. Geoffrey Lindell contends that the will and authority of the Australian people give the Constitution its “legally binding and Kirmani v Captain Cook Cruises Pty Ltd (No. 1) (1985) 159 CLR 351, 442 and see per Murphy J at 384.

Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106, 138.

See, for example, Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 72 (Deane and Toohey JJ);

Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 171 (Deane J); McGinty v Western Australia (1996) 186 CLR 140, 230 (McHugh J); and Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479, 523 (Kirby J); Attorney-General (WA) v Marquet (2003) 217 CLR 545, 570 (Gleeson CH, Gummow, Hayne and Hayden JJ).

fundamental character” and it “coincides with popular understanding”98. It is time that we assumed constitutional authority over our own Constitution, repealing the Constitution of Australia Act 1900 except for the Constitution proper and declaring that we, the Australian people, give to ourselves our Constitution. To that

end, I would like to see a new beginning in terms like these:

–  –  –

• Recognizing the dignity, culture and spirituality of our Aboriginal and Torres Strait Islander citizens and their historical occupancy and custodianship of our lands and seas;

• Conscious of the contributions to our national life made by Australians of different ethnic origins, nationalities, religions, traditions and cultures;

–  –  –

• Respecting the inherent dignity of every person and

• Willing to participate in the building and maintenance of international peace;

Confirm and give to ourselves this Constitution.”

48.Thus we would affirm our constitutional independence from all Imperial laws, our freedom to mould our Constitution to the exigencies of our future and our reliance on the genius of our people to shape the character of our nation. For me and, I would hope, for many Australians this would reflect our grateful acceptance of our See Geoffrey Lindell “Why is Australia’s Constitution Binding?” (1986) 16 Fed L.R. 29, 37.

history and of our present multicultural society, our tolerance, our outward vision and our pride in a free and confident nation.

Suggested clauses for consideration in Bills to amend the Constitution:

The Commonwealth Bill The Parliament of Australia, with the approval of the electors, as

required by the Constitution, enacts:

1 Short title This Act may be cited as the Constitution Alteration (Establishment of Republic - Commonwealth) 2011

–  –  –

3. Commencement:

(1) Schedule 1 comes into force when this Act receives Royal assent.

(2) Schedule 2 comes into force either – (a) on the repeal of section 8 of the Statute of Westminster, or (b) on the termination of the reign of Her Majesty Queen Elizabeth II whichever is the later.

Schedule 1—Amendment of the Constitution Section 51.

Insert subsection (xxxviiA):

“the repeal of – (i) section 8 of the Statute of Westminster;

(ii) the Commonwealth of Australia Constitution Act other than the Constitution the repeal to come into force when Schedule 2 of the Constitution Alteration (Establishment of Republic - Commonwealth) 2011 comes into force;

(iii) section 7 of the Australia Act 1986 (Commonwealth and United Kingdom) the repeal to come into force when Schedule 2 of the Constitution Alteration (Establishment of Republic - Commonwealth) 2011 comes into force;” Schedule 2—Amendment of the Constitution

1. Short title, Preamble and Governing Clauses (a) Insert after the words “The Constitution” the words “of the Commonwealth of Australia” (b) Delete the words “The Schedule” after the words: “Chapter VIII.Alteration of the Constitution” and insert in lieu thereof the

following:

“We, the people of Australia –

• Recognizing the dignity, culture and spirituality of our Aboriginal and Torres Strait Islander citizens and their historical occupancy and custodianship of our lands and seas;

• Conscious of the contributions to our national life made by Australians of different ethnic origins, nationalities, religions, traditions and cultures;

–  –  –

• Respecting the inherent dignity of every person and

• Willing to participate in the building and maintenance of international peace;





Confirm and give to ourselves this Constitution:

Covering Clauses:

A. This Constitution and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State;

and the laws of the Commonwealth shall be in force on all ships whose first port of clearance and whose port of destination are in the Commonwealth.

B. The Commonwealth shall mean the Commonwealth of Australia established on 1 January 1901.

C. The States shall mean the States of New South Wales, Queensland, Tasmania, Victoria, Western Australia, and South Australia, and such territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called a State.

D. New Offices of State:

The President (1) The President is the Head of the Commonwealth and must be a citizen of the Commonwealth capable of being chosen as a member of the House of Representatives;

(2) The first President shall be the Governor-General in office when this section comes into force and shall hold office for a term of 2 years thereafter.

(3) The President shall hold office for a term of 5 years from the date on which he enters upon his or her office but is eligible for re-election once and shall continue in office after the expiration of his or her term until his or her successor enters upon his or her office.

(4) The President shall hold no other office of profit.

(5) The President shall not be removed from office except on the certificate of the President of the Senate and the Speaker of the House of Representatives stating that both Houses in the same session have resolved to remove the President on the ground of proved misbehaviour or incapacity.

(6) The President may resign office by writing addressed to the President of the Senate.

(7) In the temporary absence or inability of the President to discharge his or her functions, the senior State Governor shall assume the duties and functions of the President.

The Electoral College (1) The President shall be elected by the members of the Electoral College composed of –

–  –  –

(2) If any chosen member shall be unavailable to take part in the proceedings of the Electoral College, the person next most favoured in the ballot which chose the unavailable member shall take that member’s place.

(3) The Electoral College shall meet to elect a President not less that 60 nor more than 90 days prior to the expiration of the term of a President or at any time in order to fill an occasional vacancy in the office (4) The procedures for choosing members of the Electoral College and the procedures of the Electoral College may be prescribed by law

The Council of State

(1) There shall be a Council of State to advise the President in the exercise of power under s 61(3) of the Constitution.

(2) The Constitutional Council shall consist of three citizens – a. one of whom has served as Governor-General or President of the Commonwealth of Australia or as a Governor of a State;

b. one of whom has served as Chief Justice or as a Justice of the High Court of Australia or as Chief Justice of a superior federal court or of the Supreme Court of a State; and c. one of whom has served in one or more of the offices referred to in paragraphs (a) and (b) of this subsection.

(3) Subject to subsection (4) members of the Constitutional Council shall remain in office until their successors are appointed in accordance with paragraph (5)(a).

(4) A member of the Constitutional Council –

–  –  –

2. Section 2.

Delete s 2.

3. Section 51.

Insert after subsection (xxxviiA)(iii):

(iv) “the Australia Act 1986 (UK) and the Statute of Westmister 1931, and (v) any other laws enacted by the Parliament of the United Kingdom in so far as they are part of the law of the Commonwealth, a State or a Territory:”

4. Section 61.

Delete Section 61 and insert in lieu thereof (1) The executive power of the Commonwealth including the prerogative power and all other immunities, powers, privileges and functions which were vested in or exercisable by the Queen or by the GovernorGeneral before the Constitutional Alteration (Establishment of Republic - Commonwealth) 2011 came into force are vested in and may be exercised by the President.

(2) Subject to subsection (3), the President shall exercise or refrain from exercising any power conferred upon him or her by this Constitution only in accordance with advice tendered to the President by the Federal Executive Council, the Prime Minister or, in the case of a

–  –  –

(4) In the exercise of power and the formation of opinions under this Constitution, the President and the Constitutional Council shall have regard to the conventions affecting those functions when performed by the Governor-General before the Commonwealth of Australia became a Republic and to any conventions subsequently established.

(5) A certificate issued by the Constitutional Council that there are reasonable grounds for the President’s opinion under paragraph (3)(d) is conclusive evidence of the existence of such grounds and that certificate shall not be called in question in any court.

–  –  –

Delete Section 64 and insert in lieu thereof:

The President may appoint a Prime Minister and other Ministers of State for the Commonwealth to administer such departments of State of the Commonwealth as the President in Council may establish.

Subject to this Constitution, the Prime Minister and other Ministers of State holding office when the Republic commenced shall continue in their respective offices.

The Prime Minister holds office until he or she resigns office by notice to the President or is dismissed by the President under this Constitution.

Ministers of State other than the Prime Minister hold their respective offices during the pleasure of the President but no Minister of State shall hold office for a longer period than three months unless the Minister is or becomes a Senator or a member of the House of Representatives.

The Parliament of Australia, with the approval of the electors, as

required by the Constitution, enacts:

1 Short title This Act may be cited as the Constitution Alteration (Establishment of Republic- States) 2011

–  –  –

3. Commencement:

The Schedule comes into force when Schedule 2 of the Constitution Alteration (Establishment of Republic - Commonwealth) 2011 comes into force.

The Schedule—Amendment of the Constitution Section 106 (a) Renumber the paragraph as subsection (1) (b) Delete the words: “as at the establishment of the Commonwealth” and insert in lieu thereof: “as at the coming into force of the Constitution Alteration (Establishment of Republic - State) 2011”;

(c) Insert subsection (2) to read: “Notwithstanding the repeal under s 51(xxxviiA)(v) of any law enacted by the Parliament of the United Kingdom, the provisions repealed in so far as they were part of the law of a State immediately prior to the repeal shall be deemed to be a law of the State unless and until the Parliament of the State shall otherwise provide”;

(d) Insert subsection (3) to read: “A law made by the Parliament of a State under subsection (2) respecting the constitution, powers or procedures of its Parliament shall be of no force or effect – (i) unless it is made in such manner and form as may be required by a law made by that Parliament;

(ii) insofar as it purports to confer or vest any power, privilege or function in the Sovereign of the United Kingdom or of any other foreign power;

(e) Insert subsection (4) to read: “The powers, immunities, privileges and functions which were vested in or exercisable by the Queen or by the Governor immediately prior to the Constitution Alteration (Establishment of Republic State) 2011 coming into force are vested in and may be exercised by the Governor”;

(f) Insert subsection (5) to read: “Notwithstanding section 61(2) the power to appoint and the power to terminate the appointment of a Governor of a State is vested in the President acting on the advice of the Premier of the State.”



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