"The challenge for Australian republicans”. In the third of his four-part series, Ross Garrad outlines the plan for a unified and sovereign Australia.
Read Part One here and Part Two here
Aust1st: Australian Unity and Sovereignty First (Part 3)
Details of the AUS1st constitution alteration: Our own Head of State
HERE'S THE challenge for Australian republicans: make sure the AUS1st plan isn’t the last word on how to get there from here. Show us your plan, if it’s better, faster and safer than this one, as long as it’s based on our nation’s realities and not your own fantasies.
And as long as it doesn’t unnecessarily alienate the many Australians who, for whatever reason, feel some sense of personal loyalty to Queen Elizabeth.
Any alternative plans should contain, at the very least, a strong indication of the actual constitutional amendments required to achieve their aims. A decade and a half since the last referendum, it’s way past time for a small number of detailed, realistic proposals to be put forward for public consideration. Vagueness and ambiguity are the enemies of our constitutional progress.
The changes set out below in the AUS1st proposal are a close approximation to what could be put to the people at a referendum — subject, of course, to a certain amount of re-drafting by experts in the field.
Shown here is the suggested wording and explanatory notes for Sections 1, 1a and 2 — those sections that would achieve full constitutional independence, separation from the British monarchy, and the promotion of the Governor-General to “OUR OWN Head of State”.
The other four sections involving significant change are detailed in the next article, 'Details of the AUS1st constitution alteration: Democratising our Constitution (Part 4)'.
The usual typographical conventions are used here:
Plain text for existing constitutional text to be retained;
Strikethroughfor existing constitutional text to be deleted;
Underlined for new constitutional text.
'Time to ditch the Monarchy': Peter FitzSimons debates monarchist Chris Whittaker
A. INSERTION OF AN INTRODUCTORY SECTION 1
(The existing Section 1 is re-numbered to Section 4)
The Sovereignty of the Australian People
1. The Constitution of the Commonwealth of Australia, consisting of Sections 1 to 128, is the supreme law of Australia and the fundamental written expression of the people’s sovereignty. Deriving its authority from the democratically-expressed will of the people, it can be altered only with their consent, in accordance with Section 128. This Constitution, and all laws made under it by the Parliament, shall be binding on the courts, judges, and people of every part of the Commonwealth.
Notes
In addition to a declaration of the sovereignty of the Australian people, this section defines the extent of the Constitution: sections 1 to 128. It is therefore made clear that the largely obsolete 'overing clauses' of the Constitution Act are not part of the Australian Constitution. This has been the case since 1900, but the status of the Constitution, embedded within a British Act, has long been a source of confusion and obfuscation. This section will make it clear that our country has a standalone Constitution, fully owned by its people, with no 'back-door' method of amending it.
The only sentence in the covering clauses that may actually matter, by defining the scope of constitutional power, is transferred from clause 5 into the new Section 1.
#auspol New Speaker Tony Smith a supporter of an Australian republic
— Greg Barns (@BarnsGreg) August 10, 2015
B. INSERTION OF A TEMPORARY SECTION 1a
Abolition of Monarchical Succession
1a. All Australian Commonwealth laws dealing with succession to the Australian Crown are hereby repealed to the extent that they determine such succession. The current Monarch of Australia will continue to occupy that position until he or she ceases to be the Monarch of the United Kingdom. At that time, the following amendments will be implemented automatically and immediately:
- This section 1a, along with sections 59, 60 and 74, and part (ii) of section 34, will be deleted;
- The words specified will be deleted from the following sections:
44: 'under the Crown', 'during the pleasure of the Crown', and 3 instances of 'Queen’s',
57: 'the Queen’s',
58: 'for the Queen’s assent', 'in the Queen’s name', and ', or that he reserves the law for the Queen’s pleasure',
61: 'is vested in the Queen and' and 'as the Queen’s representative',
64: 'Queen’s',
66: 'to the Queen',
68 : 'as the Queen’s representative',
122: 'by the Queen',
128: 'the Queen’s'; - Wording in the following sections will be amended as shown:
2: 'the Queen’s representative in Australia' amended to 'the Head of State of the Commonwealth of Australia', and an additional sentence inserted after the first sentence of the first paragraph: 'The Governor-General may use the additional title of President.'
4: 'the Queen' amended to 'the Governor-General',
117: 'subject of the Queen' amended to 'citizen of Australia'
126: 'Her Majesty' and 'the Queen' amended to 'the Parliament'.
The provisions of this section are subject to the following:
If the Monarch’s reign ends at any time between the passage of this constitutional alteration by the Parliament and the giving of assent by the Governor-General, the new Monarch of the United Kingdom will become the Monarch of Australia until such assent is given. At that time, the amendments contained in subsections (a), (b) and (c) will be implemented automatically, immediately after the constitutional alteration as a whole acquires legal force.
Notes
This section is the heart of the “automatic republic” concept: Australia will separate from the monarchy at the instant the Queen’s reign concludes. The list of amendments that removes the monarchy from our Constitution will execute automatically, and this Section will itself be deleted.
The final paragraph of the section may seem, at first glance, to add an unnecessary complication; in fact it is essential to allow for the possibility of monarchical succession occurring at an inconvenient time, and creating uncertainty regarding the identity of 'the current monarch of Australia'. Voters need to be assured that what they think they are voting for will actually occur, and will not be thwarted by circumstances beyond their control
After 800 years, monarchy has come to an end in Spain. Australia next? http://t.co/IEEdeMFPOc
— Michael Ginsburg (@ginmi) June 19, 2014
C. EXPANSION OF SECTION 2
(The existing Section 2, concerning the Governor-General, is expanded and clarified, and also incorporates the non-obsolete parts of Sections 3 and 4.)
The Governor-General
2. A Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.
The Governor-General is the highest representative of the Australian nation, the Queen’s representative in Australia, and the foremost guarantor of our constitutional democracy. The duties of the Governor-General will be discharged without fear or favour, with complete impartiality, and in accordance with established conventions. The Governor-General will not vote in any election.
Term of office
The term of office of the Governor-General will be between five years and six years, as determined by the Parliament at least four years six months after the commencement of the term. In the absence of such determination, the term will be five years.
Eligibility
The Governor-General must be an Australian citizen over the age of 50 years, must not be a member of a political party, and must not have served previously as a Governor-General, except in an acting capacity, or as a Prime Minister.
Dismissal
The Governor-General may be dismissed by a resolution supported by more than half of the members of the House of Representatives and the Senate combined.
Vacancy
Under normal circumstances, an impending vacancy in the office of Governor-General will lead to the convening of a Constitutional Assembly at an appropriate time, in accordance with Section 3. Otherwise, a person who has been appointed as a deputy under Section 126 may carry out the duties of Acting Governor-General. In an emergency in which no such person is available, the most senior available State Governor may carry out the duties of Acting Governor-General. In any case of deficiency or conflict in these provisions, an emergency joint sitting of the Parliament will appoint an Acting Governor-General by resolution. An Acting Governor-General will not hold office for longer than two months.
Salary
(Existing section 3) There shall be payable to the Queen out of the Consolidated Revenue fund of the Commonwealth, for the salary of the Governor-General, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds.
The salary of a Governor-General shall not be altered during his continuance in office.
Provisions relating to Governor-General
(Existing section 4) The provisions of this Constitution relating to the Governor-General extend and apply to the Governor-General for the time being, or such person as the Queen may appoint may be appointed to administer the Government of the Commonwealth; but no such person shall be entitled to receive any salary from the Commonwealth in respect of any other office during his administration of the Government of the Commonwealth.
Labor leader @billshortenmp sees Australian Republic 'within 10 years.' @lcalcutt http://t.co/bjhwDCuDNF #9News pic.twitter.com/Nr14Yo8Od9
— Nine News Australia (@9NewsAUS) July 24, 2015
Notes
Role: The term 'guarantor' has been suggested by constitutional lawyer Glenn Patmore. The wording 'constitutional umpire' is often used, but it may give a misleading impression of the frequency with which the Governor-General may be called upon to perform an adjudicative role. 'Guarantor' is well-understood to mean someone who plays an active role only as a last resort, usually when others have failed in their obligations.
Term of office: This formalises the existing situation and provides security of tenure; a Governor-General evolving into our country’s Head of State should not hold office 'during the Queen’s pleasure', which really means 'during the Prime Minister’s pleasure'. Some flexibility should be retained with regard to the end of the term, particularly to avoid any inappropriate synchronisation with the electoral cycle, but this should be determined by the Parliament and not the Prime Minister, if our country deserves to be described as a parliamentary democracy.
Eligibility: As a matter of democratic principle, limitations on eligibility should be minimal. However, the limitations set out here would have a vital educational purpose, for the public and for political actors, in setting out some constitutional expectations of the office of Governor-General. The age requirement reinforces an image of the Governor-General as a person who has served the nation with great distinction over a long period of time. It is consistent with our history; all Australian (i.e. non-British) Governors-General have been in their late fifties or older. Non-membership of a political party should be uncontroversial, and reinforces the wording of the first paragraph of Section 2. A Governor-General should not be eligible for re-election, either immediately or at a later date; his or her entire focus should be on serving the nation for a single term, not running for re-election.
The provision concerning former Prime Ministers is also in keeping with historical precedents: occasionally a former government minister has been appointed to the office of Governor-General, but never a former Prime Minister. However, when people are asked to speculate on the identity of a potential Australian Head of State, the names of politicians, particularly former Prime Ministers, are brought up. This seems to reflect a widespread community perception, which impacts negatively and divisively on the debate over our country’s future. The Prime Minister, more than any other Minister or official, stands at the epicentre of our country’s adversarial politics, and it is futile to expect such a person, however honourable and well-intentioned, to successfully adopt the impartial role expected of the Governor-General.
Still to come:
Part 4 – Details of the Aus1st Constitution alteration: Democratising our Constitution.
Find out more about an Australian republic here.
Ross Garrad has a Masters degree in Applied Law and has served as Treasurer and Convenor of the Queensland branch of the Australian Republican Movement.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License
Australia 'should cut ludicrous ties to the Queen within five years': Former rugby player Peter FitzSimons, ch... http://t.co/qTZgFttkEV
— Nah Baby Nah (@NahBabyNah) July 27, 2015
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