…First, to create a Republic of Australia the Constitution must be amended.
Section 128 of the Federal Constitution is a section which allows for such amendments. It requires the Commonwealth Parliament to pass an amending bill setting out the changes proposed, and then requires a majority of Australians and a majority of the States to agree.
Not for one minute do I believe the founding fathers of the Constitution contemplated this section would be a vehicle for removing the Monarchy…
The problem arises because “The Constitution” is not an Act but is contained within an Act. To be precise, “The Constitution” is in clause 9 of the Commonwealth of Australia Constitution Act 1900.
An examination of its development shows that this was deliberate. The problem is that without some imaginative interpretation section 128 may amend “the Constitution”, but not the covering clauses of the Act clauses 1 to 8.
These other clauses clearly envisage the continuation of the Crown. Whatever arguments are made about their continued relevance, clause 2 both provides for the continuation of the Monarchy and prevents indigenous monarchies being instituted…
Even those who support the republican case agree that despite the confusing wording of section 15(3) of the Australia Acts it would not be possible to remove recognition of State monarchies under that Act without the agreement of State governments.
States have their own constitutional restrictions on removing the Monarchy. Victoria requires an absolute majority in both Houses. Queensland requires a referendum. Western Australia has both such limitations.
These are the major legal difficulties facing those who are currently arguing that Australia should become a republic.
There are also other difficulties such as the possibility of express limitations on section 128 and whether this section can be used to amend itself.
Before leaving the legal difficulties facing the republicans I note that sub section 51 (xxxviii) may cater for radical change to the Constitution and covering clauses. It allows an amendment to any power under the Constitution that could only, at the time of the establishment of the Constitution, be exercised by the United Kingdom.
However the founding fathers restricted the use of this section to circumstances where all the States agreed.
A debate that pretends these problems do not exist is not an honest debate…
via The Samuel Griffith Society: Volume 2: Dinner Address by Jeff Kennett.
Second Conference of The Samuel Griffith Society
The Windsor Hotel, Melbourne; 30 July–1 August 1993
The second Covering Clause would be more difficult to modify than any of the previous changes to the Constitution because you would need a majority in every state to support the change in a referendum. In Australia voting is compulsory so the vote in any referendum would reflect the general mood of the whole population towards the proposed changes. A successful fear campaign would sink it. A major party not supporting the changes would prevent the proposal even going to a vote. If in any one state the referendum vote is defeated that would sink the whole project. How would you tally the territory votes? The larger territories could be treated like states, but what of the smaller ones like Norfolk Island, Christmas Island or the Australian Antarctic Territory? Could they individually sink a republic referendum?
Given all this it would probably be best to prepare suitable models and do the work to think it all through and wait for the time to be right. It is something you can not rush or push through, but there will probably be windows of opportunity that open up in time. A series of plebiscites could be used to test a number of aspects of models, but the sequence of events leading up to a referendum may not be so straightforward as some people propose.
It’s interesting to note that since the Statute of Westminster the Crown is understood to be divisible and that there is in theory a different crown for each of the states and for the Commonwealth. You could look at the seven-pointed Commonwealth Star as also being a symbol for an Australian Crown. Traditionally the seven-points of the Commonwealth Star represent the six states and the territories. As mentioned before, we could define a democratic and republican process with regular direct elections (whether with a state-based round-robin process or nationally) that would give us an Australian head of state who would have only symbolic power and who could yet temporarily play the role that the Queen does now. It’s a “Crowned Republic” that would work and that is democratic and that respects our history and traditions (even if republicans think the workings under the bonnet look somewhat unlikely).