The fourth part of the 2011 George Winterton Lecture given by former High Court Chief Justice Sir Gerard Brennan. In Part 4, Sir Gerard looks at what would happen to the states in an Australian Republic.
In the previous three sections, Sir Gerard explained why it is important for Australian to become a republic, defined the powers of a President and then looks at methods for selecting a President.
The Monarchy and the States
There would be some support for the proposition that each State should determine for itself whether it wishes to adopt a republican form of government[i]. This was proposed by George Winterton[ii] and adopted in connection with the 1999 referendum[iii]. The Monarchy is entrenched in some State constitutions and the State procedures which might lead to a republican form of government vary from State to State[iv]. In addition, s 7 of the Australia Act provides for State Governors to be representatives of the Queen. Prior to the 1999 referendum, however, the States laid the foundation for excluding the operation of s 7 by unanimously requesting the Commonwealth[v] to enact a law allowing each State to pass a law having that effect[vi].
It would be a curious constitutional mélange to maintain a republican Commonwealth with monarchical States. Sir Anthony Mason said it would be a “constitutional monstrosity” [vii].
The Constitution, as Quick and Garran observed, provided:
“one grand scheme … in which the new national elements are blended harmoniously with the old provincial elements, thus producing a national plan of government having a Federal structure.”[viii]
The States derive their constitutional status and powers from the Commonwealth Constitution[ix] and from the Australia Act (Commonwealth) which was enacted pursuant to s 51 (xxxviii) of the Constitution[x]. 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[xi] and conferred ultimate authority to assent to State legislation on the State Governor[xii]. 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[xiii]. 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[xiv]. Section 7 of the Australia Act could be 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[xv]. If that unanimity is no longer achievable, the same result would follow from an appropriate amendment of s 106[xvi]. 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.
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[xvii]. However, McHugh and Gummow JJ in McGinty v State of Western Australia[xviii] 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.
[i] Gerard Carney , The Constitutional Systems of the Australian States and Territories (Melbourne, Cambridge University Press 2006) p 339; Anne Twomey: “One In, All In – The Simultaneous Implication of a Republic at Commonwealth and State Levels” in Sarah Murray (ed) Constitutional Perspectives on an Australian Republic ( Sydney, Federation Press, 2010) 20, 38, 40
[ii] Monarchy to Republic: Australian Republican Government (Melbourne,OUP,1986), pp 103-105.
[iii] See Janine Pritchard “Monarchical States under a Commonwealth Republic” in Sarah Murray (ed) Constitutional Perspectives on an Australian Republic (Sydney, Federation Press, 2010) 106, 107.
[iv] Anne Twomey:“One In, All In...”, above n 66, 24.
[v] As provided for in s 15(1) and (2) of the Australia Act.
[vi] The several Acts were entitled the Australia Act (Request) Act 1999, and were intended to add to s7 of both the UK and Commonwealth versions of the Australia Act subsections authorizing the State Legislature to exclude the operation of the earlier subsections of s 7. See, for example, Act No 33 of 1999 (Vic.).
[vii] “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.
[viii] Annotated Constitution, p 930.
[ix] 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 (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  WAR 179.
[x] Port MacDonnell Professional Fishermen’s Association Inc. v South Australia (1989) 168 CLR 340, s81; Attorney-General (WA) v Marquet (2003) 217 CLR 545, 571.
[xi] Section 10.
[xii] Section 9.
[xiii] Section 7(3).
[xiv] 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.
[xv] See footnote 71; See also Gerard Carney The Constitutional Systems of the States and Territories above n 66, 331.
[xvi] 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.
[xvii] 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.
[xviii] (1996) 186 CLR 140, 237, 275.