Republic

Pathway to a Republic (part 5): Amending the Constitution

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The fifth and final part of the 2011 George Winterton Lecture given by former High Court Chief Justice Sir Gerard Brennan. Sir Gerard concludes by talking about how you would actually go about rewriting the Constitution and provides draft amendments that align with his vision about what an Australian Republic would look like.

 

Australia's former chief justice Sir Gerard Brennan

 

In the previous three sections, Sir Gerard explained why it is important for Australian to become a republic, defined the powers of a President, looked at methods for selecting a President and discussed how the states would be dealth with in an Australia Republic.

[Read Part 1 of the speech: 'Why a Republic?']

[Read Part 2: 'The Powers and Functions of an Australian President']

[Read Part 3: 'The selection of a President']

[Read Part 4: 'The monarchy and the states']

The Problem of Constitutional Amendment


The Constitution proper is a schedule to the Imperial Constitution Act 1900. The preamble to the Constitution Act recites an agreement to unite “under the Crown of Great Britain and Ireland” and the Covering Clauses proclaim a monarchical form of government. As Sir Anthony Mason has commented[i] to amend the Constitution while leaving those provisions in place would create “a veritable constitutional camel”. Despite the inelegance, however, an amendment of the Constitution introducing a Republic would be effective even if the Preamble and Covering Clauses remained[ii]

 

The removal of monarchical references in the Constitution would leave the Preamble and the monarchical provisions of the Covering Clauses ineffectual. The 1999 Referendum Bill simply ignored those provisions. Nevertheless, it would be desirable as well as elegant to repeal the Constitution Act other than the Constitution proper. A succession of Imperial Statutes raises some interesting questions about the steps that need to be taken to achieve that repeal. These questions have been addressed in a series of scholarly articles which identify the problems and propose some solutions86[iii]. I list some of the sources to which I am indebted and, at the end of the written paper, I have appended some draft clauses which might be considered in drafting a Bill for a referendum to amend the Constitution.

In 1900, no repeal of the Constitution Act would have been possible: it would have been repugnant to a law of the Imperial Parliament and therefore “absolutely void and inoperative” by force of s 2 of the Colonial Laws Validity Act 1865. That provision was repealed in its application to laws of the Commonwealth by s 2 of the Statute of Westminster 1931[iv]

In 1986 the Australia Act was enacted here[v] and in the United Kingdom[vi]

“…to bring constitutional arrangements affecting the Commonwealth and the States into conformity with the status of the Commonwealth…as a sovereign, independent and federal nation”.


Section 1 provided that thereafter no United Kingdom statute could extend to the Commonwealth or the States or Territories. Section 15 provided for the repeal or amendment of the Statute of Westminster and of the Australia Act itself by an Act of the Commonwealth Parliament, enacted either at the request or with the concurrence of all State Parliaments[vii] or in exercise of a power conferred on the Parliament by a s 128 amendment to the Constitution[viii]. Thus the Commonwealth Parliament acquired the power to remove the last legislative Imperial fetters on Australian legislative power, dependent on either the unanimous approval of State Parliaments or the approval of the necessary majorities of the Australian people to carry a referendum. Once the Statute of Westminster or at least s 8 thereof is repealed in either of the ways provided by s 15 of the Australia Act, the preamble and the Covering Clauses of the Constitution Act can be repealed and any provisions having continuing relevance to our Constitution (for example, Covering Clause 5) can be translated into the Constitution proper. There seems to be a consensus about the sufficiency of that procedure[ix]. Repeal of s 8 also opens the way to empowering the Parliament to repeal any or all Imperial Acts applicable to Australia, consistently with s 2 (2) of the Statute of Westminster.

 

Another view, endorsed by the 1988 Constitutional Commission, is that, once it is recognized that the Commonwealth is a “a sovereign, independent and federal nation” and that the British Parliament has renounced authority to legislate for Australia, s 8 of the Statute of Westminster no longer limits the scope of the amendments which can be effected by the referendum procedure under s 128, that section being sufficient by itself to “[encompass] all matters relating to our mode of governance”[x] In Marquet’s Case[xi] a majority of the Court observed that constitutional arrangements in Australia have changed in fundamental respects and that “constitutional norms, whatever be their historical origins, are now to be traced to Australian sources”. But the Australia Act is an Australian source and it affirms the operation of the Statute of Westminster, including s 8, unless the Statute is amended as s 15 provides. With respect, the view of the Constitutional Commission must be of doubtful validity.

If repeal of s 8 of the Statute of Westminster is desirable before a republican Constitution comes into effect, a Referendum Bill should include two provisions in addition to those prescribing the republican form of government. One provision would authorize the Parliament under s 15(3) of the Australia Act to repeal s 8; the other would delay the coming into effect of the republican provisions until the Parliament had repealed s 8.

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[xii] Deane J said that “whatever be the theoretical explanation, ultimate authority in this country lies with the Australian people” and, in ACTV[xiii], 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[xiv]. 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 fundamental character” and it “coincides with popular understanding”[xv]. 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:

“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;

• Proud of our democratic system of government under the rule of law;

• 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.”
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 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

2 Schedules

The Constitution is altered as set out in the Schedules

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;

• Proud of our democratic system of government under the rule of law;

• 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 –

(a) The Chief Justice of the High Court who shall preside at meetings of the Electoral College;

(b) Two members chosen by the people of each State;

(c) One member chosen by the people of each mainland Territory.

(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 –

(a) may resign office by writing under her or his hand delivered to the President;

(b) shall not be removed except by the President in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity.

(5) (a) The President, after consultation with the Prime Minister, shall appoint members of the Constitutional Council within 3 months after the day on which the House of Representatives is summoned to meet after a general election;

(b) If, at any time prior to the issuing of writs for a general election, there be a casual vacancy in the Constitutional Council, the President, after consultation with the Prime Minister, shall appoint an eligible person to fill that vacancy.

2. Section 2.


Delete s 2.

 

 

Former Governor General and High Court Judge Sir William Deane

 

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 Governor-General 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 power conferred by or under an Act of the Parliament, a Minister of State responsible for the administration of the Act.

(3) The President may, without the advice prescribed by subsection (2) –

(a) following the death or resignation of a Prime Minister, appoint as Prime Minister the person who, in the opinion of the President, is most likely to form a government which will have the confidence of the House of Representatives;

(b) decline to prorogue the Parliament, to dissolve the House of Representatives or to dissolve the Senate and the House of Representatives simultaneously if the President is not satisfied that–

(i) there are reasonable grounds to warrant the prorogation or dissolution; or

(ii) the Parliament has granted or will grant sufficient funds to enable the administration of the Commonwealth during the period ending when the Parliament might next meet if the President were to prorogue the Parliament, to dissolve the House of Representatives or to dissolve the Senate and the House of Representatives simultaneously on advice tendered in accordance with subsection (2);

(d) exercise or refrain from exercising a power conferred by section 5, 28, 57 or 64 if the President is of the opinion on reasonable grounds that the proposed exercise of power is absolutely necessary to ensure compliance with the general law or the effective operation of representative and responsible government under this Constitution.

(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.

i. Section 64


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

2 Schedules

The Constitution is altered as set out in the Schedule

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.”

 

 


 

[i] “Constitutional Issues relating to the Republic as they affect the States” (1998) 21(3) UNSW Law Journal 750, 753.

 

 

[ii] See Opinion of Dennis Rose QC, reprinted in the Republic Advisory Committee, An Australian Republic – The Options (1993) Vol 2, Appendix 8; Stephen Gageler “Amending the Commonwealth Constitution through Section 128 – A Journey through its Scope and Limitations” in Sarah Murray (ed), Constitutional Perspectives on an Australian Republic (Sydney, Federation Press, 2010) 6,16-17.

 

 

[iii] Quick and Garran, The Annotated Constitution of the Commonwealth (Sydney, Legal Books, 1901, 1976) 989-990; George Winterton, Monarchy to Republic – Australian Republican Government (Melbourne, OUP, 1986), Ch 8; Anne Twomey, The Constitution of New South Wales (Sydney, Federation Press, 2004) 788-791; Opinion of Dennis Rose QC, reprinted in the Republic Advisory Committee, An Australian Republic – The Options (1993) Vol 2, Appendix 8; Stephen Gageler and Mark Leeming, ‘An Australian Republic; Is a Referendum Enough’ (1996) 7 Public Law Review 143; Geoffrey Lindell and Dennis Rose, ‘A Response to Gageler and Leeming: “An Australian Republic: Is a Referendum Enough?”’ (1996) 7 Public Law Review 155; Sir Anthony Mason “Constitutional Issues relating to the Republic as they affect the States” (1998) 21(3) UNSW Law Journal 750, 755; S Gageler, “Amending the Commonwealth Constitution through Section 128 – A Journey through its Scope and Limitations” in Sarah Murray (ed), Constitutional Perspectives on an Australian Republic (Sydney, The Federation Press, 2010) 6,16. but s 8 of that Statute declared that the repeal did not confer any power to repeal or alter the Constitution Act. By s 8 the Imperial Parliament denied Australia’s power to repeal or alter the Constitution Act either by the referendum procedure under s 128 or by an ordinary law of the Commonwealth.

 

 

[iv] Adopted by the Commonwealth in 1942.

 

 

[v] Pursuant to the States’ request under s 51(xxxviii).

 

 

[vi] In accordance with the Commonwealth’s request and s 4 of the Statute of Westminster.

 

 

[vii] Section 15(1) and (2). No such law has been proposed, but note the unanimous request Acts in 1999, fn 71 supra.

 

 

[viii] Section 15(3) . This subsection may merely confirm the power already available under s 128: see L Zines The High Court and the Constitution (Sydney, Federation Press, 5th ed 2008) pp 421-423.

 

 

[ix] See Mason, “Constitutional Issues relating to the Republic as they Affect the States” (1998) 21(3) UNSW Law Journal 750, 754; Geoffrey Lindell, “Why is Australia’s Constitution Binding?” (1986) 16 Fed LR 29, 40; Stephen Gageler and Mark Leeming, “An Australian Republic: Is a (1996) 7 Public Law Review 143; Geoffrey Lindell and Dennis Rose, “A Response to Gageler and Leeming” (1996) 7 Public Law Review 155, Stephen Gageler, “Amending the Commonwealth Constitution through Section 128 – A Journey through its Scope and Limitations” in Sarah Murray, Constitutional Perspectives on an Australian Republic (Sydney, Federation Press, 2010) 6,16; Appendix 8 to The Report of the Republic Advisory Committee (AGPS, 1993), Advice by Dennis Rose QC as Acting Solicitor General, paras 1-29; Anne Twomey The Constitution of New South Wales (Sydney, Federation Press, 2004), 781-782; Anne Twomey The Australia Acts 1986 (Sydney, Federation Press, 2010) 339-341.

 

 

[x] Vol 1, Final Report of the Constitutional Commission, pp 122-123, par 3.123.

 

 

[xi] Attorney-General (WA) v Marquet (2003) 217 CLR 545, 570.

 

 

[xii] Kirmani v Captain Cook Cruises Pty Ltd (No. 1) (1985) 159 CLR 351, 442 and see per Murphy J at 84.

 

 

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

 

 

[xiv] 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).

 

 

[xv] See Geoffrey Lindell “Why is Australia’s Constitution Binding?” (1986) 16 Fed L.R. 29, 37.

 

 

 
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