…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).
The covering clauses argument is nonsense. The force of a law depends on the legislative power of the body which enacts it. The legislative power of the Westminster parliament with respect to Australia was entirely abolished by the Australia Acts. The Constitution Act (as opposed to the Constitution) is now pretty much a legal nullity. Even if it is not, the Australia Acts authorise the federal parliament to amend or repeal the Constitution Act insofar as it applies to Australia. The Australia Acts themselves directly amended the constitutions of Western Australia and Queensland without reference to the amendment procedures provided by those constitutions. (Ss 13 and 14) Can it seriously be argued that some parts of the state constitutions and the Constitution Act override the Constitution when the Constitution is quite explicit that state constitutions only continue subject to the federal constitution and that valid federal laws override stae laws? (Ss 108 and 109) In any case if the Constitution Act is about to be resurrected, S5 of that Act repeats the same formulas that make the federal constitutions and laws override state constitutions and laws.
The intellectual confusion of the Kennet argument is shown by his invocation of the ‘fathers of the constitution’ to claim that the Constitution Act, which the said fathers did not draft or enact, somehow overrides the Constitution, which they did.
The divisibility of the Crown is not a relevant legal doctrine. It emerged from a series of Imperial Conferences whose power to make laws was nil and in any case ended long ago with passage of the Australia Acts. It cannot override the Constitution itself for the same reasons that the Westminster parliament can no longer make laws that apply in any part of Australia. To argue otherwise is to argue that Britain can re-acquire North America by abrogating the Treaty of Paris or re-acquire India by repealing the Indian Independence Act 1947.
Hi Alan,
Thanks for your comments. I have no training in law so these comments are just general opinions.
I think one of the main issues with regard to our head of state has to do with the nature and source of authority in our society. In Australia I think that most people would not expect our head of state to exercise that authority as well – that is up to the cabinet, parliaments and courts. Governments can make laws and they can set up organisations to enforce their laws and collect taxes, but there also needs to be an acceptance throughout society that the laws enacted are just. That is something that is very difficult to do and it takes a very long time to develop. It is an intangible thing and it is difficult to define. That general acceptance that the system of government and law is just lends that system its authority – law is respected, even if it is challenged through non-violent political action at times. We expect arguments that build and use the basic principles of justice and reason to have some weight. Places without a sense of justice are characterised by the arbitrary use of force, whether instituted or brutal. The issue of a symbolic head of state is about authority and justice, or the lack of it.
The Crown in Australia has a unifying effect, even if it is unfashionable now to mention it. That is not because the Queen or the British parliament could force their laws onto us.
There is also the issue that we do have the Queen as our head of state and it is the covering clauses that tie our head of state to the person of the British monarch. If we are to become a republic we need to address this. It may be possible to bypass a majority vote in every state through the Australia Acts so that we could fall back onto the majority of states and the majority of votes you need to change the Constitution proper, but that might raise the possibility for future division and a wish to succeed in states like WA if they voted against a s128 republic referendum that passed in all states bar theirs. That would be a bad outcome. The issue of head of state is more about a feeling – a vibe – of justice in society so the vote would have to be seen to be unanimous. It won’t happen overnight and it might even take decades to do. Apparently, even before the First Fleet set sail there was a comment recorded that it was inevitable that Australia would eventually become a republic!
“Apparently, even before the First Fleet set sail there was a comment recorded that it was inevitable that Australia would eventually become a republic!”
Where did you read that? I would like to learn more.
Also, I do agree with Alan – the constitution is the highest law in the land and s108 means it binds the constitutions of the states (“subject to this constitution)”.
At the last RG5 conference a few weeks ago in Melbourne we we talking about the topic informally and that was one of things that was mentioned. For something a little more solid, the introduction in Mark McKenna’s book The Captive Republic starts thus:
“From the vantage point of the late twentieth century, the history of republicanism in Australia is the history of an imagined destiny. The Australian republic is a two-century-old dream not realised, the captive bird that waits patiently for the door of the cage to open.
The belief that Australia would ‘inevitably’ become a republic was already planted in 1788 when the First Fleet sailed into Sydney Harbour. After the American War of Independence in 1776 many people in Britain accepted that the colonies in the New World would eventually assert their independence and separate from the parent state. In Australia, a republic was long recognised as the end point of the colonies’ political development – an ideal that would be realised when Australia finally matured into an independent nation.”
The reference at that point of the text is given as:
McKenna, M., ‘A history of the inevitable republic’ in M. Stephenson and C. Turner (eds), Australia – Republic or Monarchy, pp50-71.
That doesn’t seem to have any quotes but on page 56 it says: “The American Declaration of Independence in 1776 proved to be a watershed in colonial relations. Long before Phillip arrived at Sydney Cove in 1788, the possibility that the colonies in the Antipodes would be forced to make war to declare their independence had markedly diminished. The British would never forget the loss of the American colonies and Australian colonials would never tire of reminding them.”
So my wording was careless in the previous comment.
Gday Robter
The Constitution+Constitution Act+Australia Acts+Statute of Westminster is a mess and writing a standalone constitution rather than what we have should be a priority.
The Constitution does talk about the Queen a lot, and the references to the United Kingdom in S34 and other places are a reasonable hint to the courts about which queen is being mentioned. It might be fun but I cannot see anyone suddenly deciding the governor-general was actually appointed by Margrethe II or Beatrix.
I do not think you can build a legal case for ratification by all states out of the Constitution Act. That especially the case when the Constitution itself does require ratification by all Original States for changing equal representation in the Senate. You could build a political case for ratification by all states, but I am not sure that you could build a democratic case.
G’day Alan,
There are also quite a few mentions of the Crown in the Constitution as well. It is a dated document and has proved very difficult to change by referendum. One currently defunct section that would be very important considering this proposed approach of changing the nature of the Australian Crown(s) to become egalitarian and democratic is s59 in particular. This power to veto legislation has never been exercised and presumably will never be exercised while a monarch is head of state, but it may be tested if there is an elected head of state. This is about the powers of our head of state, apart from the issue of the reserve powers which the elected head of state would not be in a position to exercise in this model anyway (the appointed Vice-President could exercise the reserve powers if need be). I think if this model were to be developed there would need to be a separate referendum question asking specifically whether s59 should be deleted from the Constitution.
Another possibility, far fetched as it may be, is through the Statute of Westminster 1931 and the possibility of the Commonwealth
nationsrealms getting together and agreeing to indigenous and democratic ways to apportion and match the divisible Crown with separate head of states for the Commonwealthnationsrealms that currently have the Queen of England as head of state. Regularly held national democratic elections could be seen as a form of succession. Obviously as you mentioned above, you would need to have the political case to ask the Commonwealthnationsrealms to do such a thing – a resounding referendum win for a republican model that agrees to preserve the Crown but in a democratic form. It’s a very polite way to go about national independence.About the mess of the various documents and legislation that make up the basis of our democratic system, I think there is a case that Convention has a strong role in our system of democracy and it is very difficult to codify those Conventions and it may be counterproductive to try to do so. For one example as I understand it, nowhere in our Constitution does it mention the Prime Minister, yet that person is effectively the head of government. The Constitution only makes sense in the ground of Westminster conventions. It’s like saying that there is an unwritten component that complements the Constitution.
I think also that once we do become a republic there may be a burst of interest in modifying our Constitution to make it more reflective of modern practice and there may be the possibility to rewrite appropriate sections and put the individual changes to a referendum. There may be a number of successful referendum results in a succession if a reasonable case is put before the people and if the proposed changes are very limited in scope – and nothing like the approach taken for the yes/no republic referendum of 1999.
Section 59 in the Australian Constitution reads:
Another option to removing Section 59 is to add a ‘bee sting’ clause that would see an elected President packing their bags if they ever do decide to use Section 59 to disallow legislation. But the power to veto is a serious power for a head of state and having that power might politicise the office and also politicise the election process. The powers of the head of state is a fraught issue over which there will be many differing opinions – but s59 is already in the Constitution and the only option is to remove that power by referendum under s128.
Another point worth making is that if we can redefine succession to the Crown for the Australian Commonwealth and states as a democratic PROCESS with regularly held elections for the head of state through the Statute of Westminster, then there will be no need to amend the second covering clause for the Constitution. The second covering clause can stay as it is and the process of succession to the divisible Crown that apply to Australia can be defined as a democratic process, voted on and passed in a referendum in Australia with the election process for the head of state being added as a new section in the Constitution and then having the change formally agreed to by the Commonwealth realms. I think it would be preferable if there were continuity of the Crown from the monarchy to a regularly elected head of state. I also think that Queen Elizabeth II would be a suitable monarch to confer that new status of Australian head of state to an elected Australian (honorary) president.
As a last resort though, amending the second covering clause may still a possibility, even if there is be a better way to formally do the change from monarchy to republic. And I know that many republicans would be scratching their heads wondering what on earth this talk about a democratic Crown is all about.