by Nick Hobson
What
some have said
"It
seems quite clear that the constitution can be altered by means other than
Section 128 Referendum against, I'm sure, the intentions of the founders and
against, I'm equally sure, the expectations of the Australian people."
Tony
Abbott MP (Member for Warringah, House of Representatives)
"I
find no fault in [the] logic and [the] material will credibly add to the
literature on this subject." and " & I think [we] should be aware
of the potential for plebiscites to fulfil the moral dictate of the popular
will, but avoiding the perils of referenda and Section 128. In the scenario
[that is implied], the Court and the Howard governments could fall to Labor, a
plebiscite 'Do you want a republic' could get a majority, and the Labor States
and Commonwealth Parliaments could then combine to vote in a Republican model
similar to that which has just been rejected, with the plebiscite as authority.
As a direct electionist that is not an appealing prospect to me."
Senator
Andrew Murray (Senator for Western Australia)
"I
read with interest the Hobson article Is our constitution safe? " and "My
opinion was that the Australia Act 1986 fudged, without any convincing
intellectual or logical basis, the referendum issue which its draftsmen
pretended to avoid. It was assumed that the necessary referendum approvals for
changing the Constitution would not be available or would probably not be
available. So it was decided that the need for referendum approval could be
avoided by the simplistic device of not making any new amendment of the
Constitution as set out in s.9 of the Constitution Act: the 1986 Act did not
say 'and the Constitution as set out in s.9 of the Act (and as hitherto amended
in accordance with the prescribed amendment procedure) is further amended as
follows &' Instead, the words of the constitution were left unchanged; and
it was considered that amendment procedure and referendum approval were
therefore unnecessary. According to that 'barrack-room lawyer's view'
referendums were not required because no change was being made in the wording
of the 'constitution'. That view treated form as triumph over substance. I
advised and believed that, as everyone knew that the 1986 Act was making
profound and fundamental constitutional change, and was intended to do so, form
could not be relied on as prevailing over substance; and that the High Court
would prefer substance to pathetic reliance on form. (Alas the argument was
never taken to court.)"
Leolin
Price QC (10 Old Square, Lincoln's Inn, London)
"This
is a considerable debate now as to whether the ultimate foundation for the
Australian Constitution is the will of the people. What [is] written collects
much of the relevant material."
The
Hon Justice Michael Kirby AC CMG (The High Court of Australia)
Pause
for Thought
"As
an instrument of Government, it has no equal in the world for the purpose of
giving democratic government to the people."
"
...... that while it is not too pliant and cannot be easily altered, it
provides the machinery for doing anything the people of the continent may
desire."
"We
have no flag that has braved the battle and the breeze for over a thousand
years. We have this Commonwealth infant in our arms, nurturing and tending it,
strengthening and developing it, and if we are to do our duty correctly we
shall remember the lessons of the past and observe the watchword of freedom and
justice to all."
The
Hon W Trenwith, Minister for Public Works (Victoria) on the Constitution and
the Federation at a luncheon held in Sydney on 5 January 1901 to celebrate the
Federation of the Commonwealth of Australia. [1]
BACKGROUND
In 1986, G J Craven - a lecturer in Law at the
University of Melbourne at the time - wrote an article about the possibility of
the Commonwealth Parliament amending the Constitution without a referendum.
'Nevertheless,
the logical implication to be drawn from the remarks in the Kirmani Case
is that through a simple amendment of the Statute of Westminster, the
Constitution Act could be made subject to the legislative power of the
Commonwealth Parliament. Whether this prospect is greeted with
delight or recoiled from in horror depends largely upon one's point of view.
To some, this possibility would represent a welcome means of
achieving wide-ranging constitutional reform without the likelihood of repeated
and depressing defeat at the hands of the referendum requirements of s.128.
To others, it would be abhorrent as a subversion on one of the
fundamental principles of the Constitution, that a constitutional amendment
cannot take place without the consent of a majority of the electors of the
Commonwealth, and majorities of electors in a majority of States.
Whichever view one takes, the dicta in Kirmani hold some
fascinating possibilities for the future of constitutional amendment in
Australia.'
For
whatever reason, G J Craven did not attend to the existence of the Australia
Act 1986.[3]
In
their book, Australian Constitutional Law and Theory [4], Tony
Blackshield and George Williams wrote:
The
Australia Act was assented to on 4 December 1985 and came into
operation on 3 March 1986 when it was proclaimed by Elizabeth II, who travelled
to Canberra for that purpose to make it clear that she was acting in her
capacity as Queen of Australia. Section 15 of the Act laid down a
mechanism for amending or repealing the Australia Act and the Statute
of Westminster. It has been suggested that on a literal
reading of the Australia Act, s15 appears to allow s8 of the Statute
of Westminster to be amended or repealed so as to enable the
Constitution, and particularly s 128 (see Chapter 28), to be amended or
repealed otherwise than by referendum. This reading, while
literally plausible, runs counter to the emerging notion of popular sovereignty
(see Chapter 1). Of course, if the Australia Act did have such an
effect, neither the Australia Act 1986 (Cth), nor the Australia
(Request and Consent Act ) Act 1986 (Cth) would be constitutional as
they would breach s128, which provides that: 'This Constitution shall
not be altered except in the following manner'.
Before
proceeding further on the discussion itself, it will help to focus on various
definitions that are instrumental to this argument.
THE
CONSTITUTION ACT VERSUS THE CONSTITUTION OF THE COMMONWEALTH
The
Commonwealth of Australia Constitution Act [5] is an Act of
the Parliament of the United Kingdom of Great Britain and Ireland. The
Act consists of a Preamble and 9 clauses; the 9th clause contains
The Constitution of The Commonwealth[6].
The Constitution is that part of the Imperial Act comprehended in Clause 9 and
divided into chapters, parts and sections being numbered from 1 to 128
inclusive. The Schedule is also part of the Constitution.[7]
The
Australia Act 1986 offers the following definitions:
"the
Commonwealth of Australia Constitution Act" means the Act of the
Parliament of the United Kingdom known as the Commonwealth of Australia
Constitution Act, and
"the Constitution of the Commonwealth" means the Constitution of the Commonwealth set forth in section 9 of the Commonwealth of Australia Constitution Act, being that Constitution as altered and in force from time to time.
"the Constitution of the Commonwealth" means the Constitution of the Commonwealth set forth in section 9 of the Commonwealth of Australia Constitution Act, being that Constitution as altered and in force from time to time.
G J
Craven in The Kirmani Case [8]states 'In the
context of the present discussion, it should therefore be noted at this stage
that the Commonwealth of Australia Constitution Act (including the Constitution
proper) is apparently 'part of the law of the Commonwealth' for the purposes of
sub-s. 2(2)[9]'.
Additionally, P H Lane[10] probably
offers the best and most apt description viz. 'Since the Commonwealth of
Australia Constitution Act includes 'the Constitution of the Commonwealth', a
reference to the former includes the latter.[11]
However, at times a law may refer to both phrases, presumably for greater
caution. For that matter, cl V (of the Constitution Act) refers to
'This Act' and 'the Constitution'.'
Finally,
and as recent as July 2000, Cheryl Saunders indicates 'the Constitution still
is encased in the original British act of parliament and is preceded by a
preamble and eight introductory sections to that act.' [12]
In
other words, the Constitution is part of the Constitution Act
but the Constitution Act is not part of the
Constitution. An analogy could be 'all sultanas are raisins
but not all raisins are sultanas'. Therefore, there is clear and
reasonable support for the view that The Constitution is an integral
and, for the moment, an inseparable part of the Constitution Act.
Accordingly, if the Constitution Act in toto were to
be repealed then The Constitution itself would also be
automatically repealed.
POWERS
OF THE COMMONWEALTH PARLIAMENT
Section
51 of the Constitution defines those areas in which the Commonwealth
Parliament, subject to the Constitution, has power to make laws for the peace,
order, and good government of the Commonwealth. Specifically, s51
(xxxviii) states:
'The
exercise within the Commonwealth, at the request or with the concurrence of the
Parliaments of all the states directly concerned, of any power which can at the
establishment of this Constitution be exercised only by the Parliament of the
United Kingdom or by the Federal Council of Australasia.'
S51
(xxxviii) is important for the discussion in this paper because it allows the
Commonwealth Parliament to assume any power that was previously exercised only
by the Parliament of the United Kingdom or by the Federal Council of
Australasia[13] at
the establishment of the Constitution.
The
power can, however, be exercised only at the request or with the concurrence of
the Parliaments of all the States directly concerned. The power is
also expressed to be subject to the Constitution, so any law made pursuant to
it which conflicts with the Constitution is invalid.[14]
To
date, the Parliament of the Commonwealth of Australia has on three occasions
passed Acts requesting and consenting to the enactment by the Parliament of the
United Kingdom of Acts extending to Australia. The Acts of the Parliaments of
the Commonwealth and of the United Kingdom, respectively, are as follows: [15]
|
Australia
|
United
Kingdom
|
|
Australia
(Request and Consent) Act 1985
|
Australia
Act 1986
|
|
Christmas
Island (Request and Consent) Act 1957
|
Christmas
Island Act, 1958
|
|
Cocos
(Keeling) Islands (Request and Consent) Act 1954
|
Cocos
Islands Act, 1955
|
Clearly,
these three Acts have met all the necessary requirements and, in themselves,
do not conflict with s51 (xxxviii) of The Constitution.
Specifically, the High Court's decision in Port MacDonnell Professional
Fishermen's Association Inc v South Australia (1989) 168 CLR 340 has put at
rest any doubts as to the validity of the Australia Act 1986 (Cth).
In the unanimous opinion of the court, s 51(xxxviii) of the
Constitution should be given a broad interpretation reflecting its 'national
purpose of a fundamental kind', which is that of 'plugging gaps which might
otherwise exist in the overall plenitude of the legislative powers exercisable
by the Commonwealth and State parliaments under the Constitution': 168 CLR at
378, 379.[16]
CHANGING
THE CONSTITUTION
s128
of the Constitution requires that any proposed amendment to the Constitution
must first be passed by an absolute majority of both House of Parliament, or at
least one House if the other House refuses. s128 also imposes a
double majority system for change by the people: firstly a majority of electors
in a majority of States must approve of the change and, secondly, a majority of
all electors nation-wide must also approve of the change. Up to
and including 6 November 1999, only 8 out of 44 proposals placed before the
Australian people to change the Constitution have received the necessary
approval under s128 of the Constitution.
From
the outset of federation in 1901, any change to the Constitution was subject to
these requirements thus preventing the Commonwealth Government itself from
making changes to the Constitution without reference to the people.
In other words, the Constitution was protected from any undue and
unwanted change by the Australian Parliament without approval by the people at
a referendum.
In
theory, the United Kingdom Parliament, to, could amend the Constitution which
was contained in an Act of that Parliament, the Commonwealth of Australia
Constitution Act.[17]
The Constitution Act itself, of which the constitution was section 9, could be
altered only by the parliament of the United Kingdom, which could also, as a
matter of law, alter the constitution itself if it chose to do so.[18]
This was also recognised by Quick and Garran in their discussion on
restrictions of the amending power in respect of depriving equal representation
of the States in the Senate and the minimum number of representatives in the
"National Chamber". Quick and Garran indicated that
"If unanimity cannot be secured, there yet remains the possibility of
resort to the Imperial Parliament for an amendment of the Constitution,
dispensing with the necessity for obtaining the consent of all the
States".[19]
Quick and Garran also assert that "the Commonwealth (of Australia) is only
quasi -sovereign, and the amending power, though above the State
Governments and above the Federal Government, is below the Imperial Parliament"
and that "The amending Power can amend the Constitution, but the
Constitution Act is above its reach".[20]
However,
since the introduction of the Australia Act 1986 (Cth) that is no longer the
case as Section 1 of that Act states:
'No
Act of the Parliament of the United Kingdom passed after the commencement of
this Act shall extend, or be deemed to extend, to the Commonwealth, to a State
or to a Territory as part of the law of the Commonwealth, of the State or of
the Territory.'
However,
the aforementioned section could possibly be repealed. Cheryl Saunders, in a
recent article writes, amongst other things, on Australia's independence: 'It
was formalised in the passage of the Australia Acts 1986, which made it clear
that the British parliament could, or at least would, no longer legislate for
Australia.[21]
Also, P. H. Lane has indicated:
'..
If we wanted to scrap the existing document[22] altogether,
for instance, to become a republic or to end the Federation by abolishing the
States, first the Federal Parliament, at the request or with the concurrence of
all State Parliaments, should qualify so much of the Australia Acts 1986 (Cth
& UK) as stand in the way. Then these Parliaments should request and
consent to the United Kingdom Parliament repealing the whole Constitution Act.'[23]
The
view that the United Kingdom could have amended the Constitution prior to 1986
is also supported by Professor George Winterton. However, Professor Winterton
has also indicated that the United Kingdom may not be legally limited to
Section 1 of the Australia Act 1986 (UK).[24]
The
High Court of Australia also plays a part in the constitutional process.
It fills in the details for the day-to-day running of the country, and it
adapts the Constitution to the present day.[25]
The High Court, for example, has decided that the Commonwealth's power in s.
51(v) over 'postal, telegraphic, telephonic, and other like services', given in
1901, now allows the Commonwealth to control broadcasting (in 1935) and
television (in 1965). Thus the High Court has updated the postal power.[26]
However,
the Constitution should not be read in isolation. Apart from
various Acts of the Commonwealth Parliament, State Constitutions and High Court
dicta that add further to the constitutional picture, there are two other very
important Acts that impinge on our constitutional arrangements. The
Statute of Westminster 1931 (UK) and the Australia Act 1986 (UK) (the latter is
mirrored in the Australia Act 1986 (Cth)) are two English Acts that affect
Australian constitutional law.[27]
STATUTE
OF WESTMINSTER, 1931
The
Statute of Westminster, 1931 (UK), assented to on 11 December 1931, was enacted
by the Parliament of the United Kingdom to give effect to certain resolutions passed
by Imperial Conferences held in the years 1926 and 1930. S 10 of
this Act provided that sections 2, 3, 4, 5 and 6 of the Act shall not
extend to a Dominion unless that section is adopted by the Parliament of the
Dominion. The option for any such adoption to have effect either
from the commencement of this Act or some later date as specified was also
given. S 10(3) of the Act included the Commonwealth of Australia as a
dominion for the purposes of s 10.
The
Australian parliament enacted the Statute of Westminster Adoption Act 1942
(assented to on 9 October 1942) adopting Sections 2, 3, 4, 5 and 6 of the
Imperial Act (Statute of Westminster, 1931) taking effect from 3 September
1939. The purpose of the Adoption Act was to 'remove doubts
as to the validity of certain Commonwealth legislation, to obviate delays
occurring in its passage, and to effect certain related purposes, by adopting
certain sections of the Statute of Westminster, 1931, as from the commencement
of the war between His Majesty the King and Germany.'[28]
Sections
4, 9 (2) and (3) and 10 (2) of the Statute of Westminster, in so far as they
are part of the law of the Commonwealth, of a State or of a Territory, have
subsequently been repealed by section 12 of the Australia Act 1986.
In
the book The Constitutional Structure of the Commonwealth , the author,
K.C. Wheare, provides us with an explanation regarding the autonomy of
Commonwealth nations.[29] The
following is a summary of part of that section as it relates to Australia:
In
discussions among members of the Commonwealth at the Imperial Conference of
1926 leading up to the enactment of the Statute of Westminster, 1931, it was
agreed that the principal of equality should govern their relation.
One
consequence of this was that the Parliaments of the overseas Members should be
empowered to repeal or amend acts of the parliament of the United Kingdom
extending to them. To that end, the clause that was eventually to become
section 2 of the Statute of Westminster was drafted. That
draft proposed that the Colonial Laws Validity Act of 1865 be repealed and that
the powers of the parliament of a Dominion should include the power to repeal
or amend any act of the parliament of the United kingdom in so far as the same
part was part of the law of the Dominion.
But
the repeal of this Act did more than remove the rule of construction by which
an act of a colonial legislation was void if it was repugnant to an act of the
parliament of the United Kingdom. It also contained some important provisions
about certain requirements about the powers and procedure in amending colonial
constitutions as follows:
Every
Colonial legislature shall have, and be deemed at all times to have had, full
power within its jurisdiction to establish courts of judicature, and to abolish
and reconstitute the same, and to alter the constitution thereof, and to make
provision for the administration of justice therein; and every representative
legislature shall, in respect to the colony under its jurisdiction, have and be
deemed at all times to have had, full power to make laws respecting the
constitution, powers, and procedure of such legislature; provided that such
laws shall have been passed in such manner and form as may from time to time be
required by any act of parliament, letters patent, order-in-council, or
colonial law for the time being in force in the said colony.
Before the enactment of the Statute of Westminster, the Australian Constitution could be altered in two ways: firstly, by the provisions contained in s128 of the Constitution, and secondly, by the Parliament of the United Kingdom. It was of fundamental importance to Australia that the constitution should be supreme over the legislatures and it was feared that the repeal of the Colonial Laws Validity Act may allow the Australian Parliament to alter the Australian Commonwealth Constitution Act and thereby amend or repeal the Constitution itself. Accordingly, an elaborate provision was inserted at S 8 to deny the Australian Parliament any power to repeal or amend the Constitution Act or the Constitution itself. A similar provision was made at s 9 protecting the status quo in respect of the States.
Accordingly,
it was clear that the framers of the Statute of Westminster, and particularly
the governments and parliaments in Australia at the time, believed that in the
absence of any such safeguards, there was at least a strong presumption that
the Australian parliament would acquire a power to alter the Constitution which
it did not already posses. But there is another view.
That view is that section 2 (2) of the Statute of Westminster did not increase
the area of the powers of the Australian parliament beyond those laid down in
the Australian constitution. Rather, it provided that any act passed by
that parliament within the area of its powers should not be void through
repugnancy to an imperial act extending to Australia.
So
section 8 of the Statute did no more than preserve the existing law about how
the Constitution and the Constitution Act could be altered. [30]
The effect is to confine the operation of the Statute to matters within the
sphere of competence of the Australia Federal authorities.[31]
At least it ensured that the Federal Parliament could not
use the powers given to it by section 2 of the Statute to make laws in
disregard of the requirements of section 128 of the Constitution.[32]
In other words, The Commonwealth Parliament could not, by itself, amend or
repeal either the Constitution Act or the Constitution contained at clause 9 of
the Constitution Act after the enactment of the Statute of Westminster,
1931.
AUSTRALIA
ACT 1986
The
Australia Act 1986 is an Act to bring constitutional arrangements affecting the
Commonwealth and the States into conformity with the status of the Commonwealth
of Australia as a sovereign, independent and federal nation.
The Australia Act 1986 (Act No. 142, 1985) was assented to on 4 December 1985
and came into operation on 3 March 1986 at 5.00 A.M. Greenwich Mean Time[33] when it was
proclaimed by Queen Elizabeth II, who travelled to Canberra for that purpose to
make it clear that she was acting in her capacity as Queen of Australia.
In addition to this Australia Act 1986 an Australia Act
1986 , in substantially identical terms, was enacted by the United Kingdom
Parliament (1986 Chapter 2) pursuant to a request made and consent given by the
Parliament and Government of the Commonwealth in the Australia (Request and
Consent) Act 1985 and with the concurrence of all States of Australia (see
the Australia Acts Request Act 1985 of each State).[34]
The suffixes (Cth) and (UK) are often added to the titles of the
respective Acts so as to differentiate one from the other. The UK
Act has its source in the Statute of Westminster (s4, then available), the Cth
Act in the Constitution (s.51 (xxxviii)). The former was passed in case
the latter was found to be invalid.[35]
By
joint action of all the Parliaments of Australia and the United Kingdom, the
legislative, executive and judicial institutions of the United Kingdom ceased
to have any power, responsibility or jurisdiction in respect of Australian
affairs.[36]
Accordingly, the United Kingdom Parliament has implicitly 'abandoned' its
Constitution Act of 1900 to the Commonwealth, States and their Territories for
their local handling.[37]
A
High Court decision of 1989 has also put at rest any doubts as to the validity
of the Australia Act 1986 (Cth). [38]
DISCUSSION
So
far, this paper has established that:
- There has been, from time-to-time, comment on the possibility of the Constitution being changed by processes other than those contained at s128 of the Constitution.
- The Constitution forms an integral and, for the moment, an inseparable part of the Commonwealth of Australia Constitution Act.
- The principal way of changing the Constitution is by the resource contained at s128 of the Constitution.
- At the establishment of the Constitution and up to the introduction of the Australia Act 1986, the United Kingdom Parliament could also have amended the Constitution because it is part of an Act of that Parliament.
- The enactment of the Statute of Westminster, 1931 gave the Commonwealth Parliament additional powers to repeal or amend acts of the parliament of the United Kingdom extending to Australia but denied any power to amend or repeal the Constitution or the Constitution Act.
- The enactment of the Australia Act 1986 finally confirms the status of the Commonwealth of Australia as a sovereign, independent and federal nation and that the United Kingdom Parliament has 'abandoned' its Constitution Act of 1900 to the Commonwealth and the States for local handling.
The
Commonwealth of Australia Constitution Act 1900 (including the Constitution)
remains part of our law.[39]
Accordingly, and because this act has now been 'abandoned' by its author, the
sole responsibility for its future rests entirely with Australia and its
institutions. Additionally, the Statute of Westminster, 1931 and
the Australia Act 1986 (Cth), as amended and in force from time to time, in so
far as they are part of the law of the Commonwealth, of a State or of a
Territory, provide additional constitutional nuances for our deliberation.
Assuming
the constraints of Section 1 of the Australia Acts remain valid, the United
Kingdom can no longer amend the Constitution since the enactment of those Acts.
That being the case, does this mean that the United Kingdom's
former power to do so has simply been extinguished and that the only way the
Constitution can now be changed is through s128 of the Constitution? Or
does this mean that the United Kingdom's former power has been inadvertently or
covertly transferred to some other authority?
Returning
to the Statute of Westminster, 1931, section 8 of that statute leaves the
machinery of constitutional amendment exactly as it was before the enactment of
the Statute; so 'any [existing] power to repeal or alter' the Commonwealth
Constitution or the enveloping Constitution Act survives[40] even though
s.2 (2) of the Statute of Westminster authorises the use of Commonwealth
legislative power to repeal or amend any such English Act, order, rule or
regulation in so far as the same is part of the law of the Dominion.[41]
However, both saving provisions (on the Constitution Act with the Constitution,
and on the federal division of authority) may be overturned by action under
s.15 of the Australia Act.[42]
Section
15 of the Australia Act deals with the method of repeal or amendment of that
Act and the Statute of Westminster. That section is divided into three
subsections as shown below:
- This Act or the Statute of Westminster 1931, as amended and in force from time to time, in so far as it is part of the law of the Commonwealth, of a State or of a Territory, may be repealed or amended by an Act of the Parliament of the Commonwealth passed at the request or with the concurrence of the Parliaments of all the States and, subject to subsection (3) below, only in that manner.
- For the purposes of subsection (1) above, an Act of the Parliament of the Commonwealth that is repugnant to this Act or the Statute of Westminster 1931, as amended and in force from time to time, or to any provision of this Act or of that Statute as so amended and in force, shall, to the extent of the repugnancy, be deemed an Act to repeal or amend the Act, Statute or provision to which it is repugnant.
- Nothing in subsection (1) above limits or prevents the exercise by the Parliament of the Commonwealth of any powers that may be conferred upon that Parliament by any alteration to the Constitution of the Commonwealth made in accordance with section 128 of the Constitution of the Commonwealth after the commencement of this Act.
Put
simply, the Australia Act and what remains of the Statute of Westminster 1931
can be repealed or amended only by:
- a Federal Act which has the concurrence of all the State Parliaments, or
- alteration to the Constitution, under section 128, conferring power on the Commonwealth.[43]
The
third subsection mitigates the threatened rigidity, by specifying another
method of amending or repealing the provisions of the Statute of Westminster or
the Australia Act.[44]
The correct view of section 15 (3) is that it not only qualifies the
exclusiveness of section 15 (1), but also positively allows a subsequent
alteration under section 128 [of the Constitution] to enable Parliament to do
any of the things that can be done by the alternative procedure under section
15 (1) read with section 15 (2).[45]
Because
the application of subsection 3 calls on the people of Australia for approval
to amend or repeal the Statute of Westminster and/or The Australia Act in
accordance with the provisions of s 128 of the Constitution, it needs no
further discussion at this time.
Subsection
2 of section 15 of the Australia Act is, in effect, a definition section.[46]
We can ignore this subsection because it is a technical legal instruction to
the courts about the way they should handle a federal statute which tries to do
something contrary to the Statute of Westminster or the Australia Act.[47]
Accordingly,
it is no longer necessary to consider subsections 2 and 3 of section 15 of the
Australia Act for the purposes of this paper. That said, we now
consider s15 (1) of both the Australia Act 1986 (Cth) and the Australia
Act 1986 (UK) in turn.
AUSTRALIA
ACT 1986 (Cth)
This
act has s 51(xxxviii) of the Constitution as its source.[48]
Like all subsections of Section 51, s 51(xxxviii) is subject
to 'the Constitution'.
Earlier
in this paper we noted that 'It has been suggested that on a literal reading of
the Australia Act, s15 appears to allow s8 of the Statute of
Westminster to be amended or repealed so as to enable the
Constitution, and particularly s 128 (see Chapter 28), to be amened or repealed
otherwise than by referendum. This reading, while literally
plausible, runs counter to the emerging notion of popular sovereignty (see
Chapter 1). Of course, if the Australia Act did have such an effect,
neither the Australia Act 1986 (Cth), or the Australia (Request and Consent
Act) Act 1986 (Cth) would be constitutional as they would breach s128, which
provides that: 'This Constitution shall not be altered except in the
following mannerÉ. .' [49] There are
two points to consider here. One is the issue of popular
sovereignty; the other is whether or not s 15(1) of the Australia Act 1986
(Cth) allows for the repeal or amendment of the Constitution without breaching
s128 of the Constitution.
Popular Sovereignty:
Most dictionaries describe sovereignty as
'supreme power'. Ruth Lapidoth, when interviewed about recent
Israel/Palestine negotiations, said 'sovereignty is an abstract notion that
makes people's feelings very strong'. [50] Tony
Blackshield and George Williams in their book 'Australian Constitutional Law
and Theory'[51] state:
'Geoffrey Lindell, in 'Why is Australia's
Constitution Binding? The Reasons in 1900 and Now, and the Effect of
Independence' (1986) 16 Federal Law Review 29, developed the view that the
Constitution is binding because the Australian people accept it as their
fundamental constitutional document. This view was based on the idea that
all law applicable in Australia now has an Australian rather than a British
source.'
The High Court has begun to develop this approach. Recent decisions have seen acceptance of the notion that the sovereignty of the Constitution now lies with the Australian people, but not without qualification. One important qualification is based on s 128 of the Constitution (see Chapter 28).'
The High Court has begun to develop this approach. Recent decisions have seen acceptance of the notion that the sovereignty of the Constitution now lies with the Australian people, but not without qualification. One important qualification is based on s 128 of the Constitution (see Chapter 28).'
The major premise of popular sovereignty is the
acquiescence of the Australian people in the constitutional system established
by the Commonwealth of Australia Constitution Act 1900 (Imp). [52] However, the
hierarchies established by such a system are not acquiesced in by all people,
nor is Australia's constitutionalism strictly limited to that Act. [53]
Broad statements as to the reposition of 'sovereignty' in the 'people' of Australia, if they are to be given legal rather than popular or political meaning, must be understood in the light of the federal considerations contained in s 128. Those statements must also allow for the fact that none of the Australia Acts, Imperial, Commonwealth or State followed approval at a referendum, in particular, any submission to the electors pursuant to s 128 of the Constitution. Moreover, in s 15 thereof, the Australia Acts provide their own mechanism for amendment or repeal by statute and without submission to the electors at State or Commonwealth level.[54]
To think of the Constitution as a legally binding compact of the people rests upon the notion of their tacit consent - a consent that is difficult to prove or disprove. The people have not voted on the transfer of the ultimate authority over the Constitution away from the British Parliament and into their hands and their power to alter the Constitution under the terms of Constitution s128 cannot be exercised on their own initiative - their 'agreement' may in part be a product of lack of opportunity to disagree.[55]
Section 15(1) of the Australia Act 1986 (Cth) versus Section 128 of the Constitution:
It should be noted here that Blackshield and Williams contained their argument of whether or not the application of the Australia Act s15 could be used to breach s128 of the Constitution solely to the application of the Australia Act 1986 (Cth). They did not present the same argument under the application of the Australia Act 1986 (UK).
The Constitution is not the sole source of rules for constitutional government in Australia. However, with the exception of the Australia Act 1986 (UK) the other sources either rest on power authorised by the Constitution or are sources of law that could be controlled by means of appropriate alterations of the Constitution.[56]
Under section 15 (1) the Commonwealth Parliament, at the request or with the concurrence of each State Parliament (and without any referendum), could now repeal or amend section 8 of the Statute of Westminster in so far as the Constitution Act is concerned.[57]
With the repeal or amendment of section 8 of the Statute of Westminster to the necessary extent, the Parliament might then have the power, under section 2 (2) of the Statute of Westminster, to repeal or amend the preamble and covering clauses in the Constitution Act (see paragraph 15 above) without the need to obtain any further powers. [58]
Confirmation of this process can be found in the Constitution (Requests) Bill 1999 introduced into the Queensland Parliament.[59] This Bill contained 2 schedules. Schedule 1 provided for an amendment to include a further sentence at the end of section 8 of the Statute of Westminster 1931 viz:
Broad statements as to the reposition of 'sovereignty' in the 'people' of Australia, if they are to be given legal rather than popular or political meaning, must be understood in the light of the federal considerations contained in s 128. Those statements must also allow for the fact that none of the Australia Acts, Imperial, Commonwealth or State followed approval at a referendum, in particular, any submission to the electors pursuant to s 128 of the Constitution. Moreover, in s 15 thereof, the Australia Acts provide their own mechanism for amendment or repeal by statute and without submission to the electors at State or Commonwealth level.[54]
To think of the Constitution as a legally binding compact of the people rests upon the notion of their tacit consent - a consent that is difficult to prove or disprove. The people have not voted on the transfer of the ultimate authority over the Constitution away from the British Parliament and into their hands and their power to alter the Constitution under the terms of Constitution s128 cannot be exercised on their own initiative - their 'agreement' may in part be a product of lack of opportunity to disagree.[55]
Section 15(1) of the Australia Act 1986 (Cth) versus Section 128 of the Constitution:
It should be noted here that Blackshield and Williams contained their argument of whether or not the application of the Australia Act s15 could be used to breach s128 of the Constitution solely to the application of the Australia Act 1986 (Cth). They did not present the same argument under the application of the Australia Act 1986 (UK).
The Constitution is not the sole source of rules for constitutional government in Australia. However, with the exception of the Australia Act 1986 (UK) the other sources either rest on power authorised by the Constitution or are sources of law that could be controlled by means of appropriate alterations of the Constitution.[56]
Under section 15 (1) the Commonwealth Parliament, at the request or with the concurrence of each State Parliament (and without any referendum), could now repeal or amend section 8 of the Statute of Westminster in so far as the Constitution Act is concerned.[57]
With the repeal or amendment of section 8 of the Statute of Westminster to the necessary extent, the Parliament might then have the power, under section 2 (2) of the Statute of Westminster, to repeal or amend the preamble and covering clauses in the Constitution Act (see paragraph 15 above) without the need to obtain any further powers. [58]
Confirmation of this process can be found in the Constitution (Requests) Bill 1999 introduced into the Queensland Parliament.[59] This Bill contained 2 schedules. Schedule 1 provided for an amendment to include a further sentence at the end of section 8 of the Statute of Westminster 1931 viz:
Nothing in this section prevents the amendment
of the Commonwealth Constitution Act by omitting the Preamble or by repealing
section 2 to 8.
While Schedule 2 allowed for an amendment to
the Commonwealth of Australia Constitution Act of the Parliament of the United
Kingdom viz:
Amendment of Imperial Act
The Commonwealth of Australia Constitution Act of the United Kingdom is amended as set out in this Schedule, so far as that Act is part of the law of Australia or of an external Territory.
Preamble
Omit the Preamble
Sections 2,3,4,5,6,7 and 8
Repeal the Sections
The end result would have culminated in a
revised Constitution Act consisting only of section 1 (the Short Title) and
Section 9 (the Constitution). However, this Bill, and a similar Bill introduced
into the Victorian Parliament never saw the light of day.
The Commonwealth Parliament could pass the legislation requested pursuant to section 51 (xxxviii) of the Constitution and section 15 (1) of the Australia Acts 1986 only if all the States passed requesting Acts. As there was not complete agreement between all the Sates, most of the States decided not to introduce a Bill into their Parliaments.[60]
If the aforesaid validly establishes that the Constitution Act (but not the Constitution) may be amended or repealed without a referendum, could this also mean that there may be scope to do the same with the Constitution itself given that the Constitution is part of the Constitution Act?
A High Court judgement[61] summarises the effect of s 51 (xxxviii) of the Constitution as it was interpreted in Port MacDonnell Professional Fishermen's Assn Inc v South Australia (1989) 168 CLR 340 thus:
The Commonwealth Parliament could pass the legislation requested pursuant to section 51 (xxxviii) of the Constitution and section 15 (1) of the Australia Acts 1986 only if all the States passed requesting Acts. As there was not complete agreement between all the Sates, most of the States decided not to introduce a Bill into their Parliaments.[60]
If the aforesaid validly establishes that the Constitution Act (but not the Constitution) may be amended or repealed without a referendum, could this also mean that there may be scope to do the same with the Constitution itself given that the Constitution is part of the Constitution Act?
A High Court judgement[61] summarises the effect of s 51 (xxxviii) of the Constitution as it was interpreted in Port MacDonnell Professional Fishermen's Assn Inc v South Australia (1989) 168 CLR 340 thus:
The effect of s 51 (xxxviii) is to empower the
Parliament 'to make laws with respect to the local exercise of any legislative
power which, before federation, could not be exercised by the legislatures of
the former Australian colonies'. It represents an actual enhancement of
the legislative powers of the States because 'it confers, by implication, power
upon the Parliament of a State to participate in the legislative process which
the paragraph requires, namely request (or concurrence) by a State Parliament
and enactment by the Commonwealth Parliament'. There is a potential
enhancement of State legislative powers because the Parliaments of the States
are the potential recipients of legislative power under a law made pursuant to
the paragraph. Any room for an inhibition against giving to the
grant in s 51 (xxxviii) its full scope and effect by reason of what was once
the status of the Commonwealth itself within the British Empire no longer
applies.
Now, s 51 (xxxviii) is subject to the Constitution. That being the case, does s 51 now have the effect to void any law made to amend or repeal the Constitution under s 15 (1) of the Australia Act 1986 (Cth) given the High Court has now put to rest any doubts as the validity of this Act?[62] If the answer is 'Yes', could a similar effort under s 15 (1) of the Australia Act 1986 (UK) overcome this technicality?
AUSTRALIA ACT 1986 (UK)
The Australia Act 1986 (UK) is a British
statute. It is a fundamental or higher law which prevails over
ordinary laws and it cannot be altered by any one Australian legislature acting
unilaterally. Its force in Australia now must rest on the
authority of the Australian legislatures empowered to alter the Act under S 15
of the Act.[63]
This act has its source in the Statute of
Westminster (section 4 of the Statute was then available) and was passed in
case the Australia Act 1986 (Cth) was found to be invalid.[64]
Theoretically, the combination of Parliaments
specified in s 15 (1) of the Australia Act (UK) may not be bound by the opening
words of s 128[65] (of the Constitution), as
may apply to the Australia Act 1986 (Cth), to enact legislation to repeal or
amend section 8 of the Statute of Westminster, 1931. Such
Commonwealth legislation would technically be an amendment to the Australia Act
(UK) and thus, being a later enactment with the same force as British
legislation applying by paramount force, would effectively amend or repeal the
provisions of the Constitution Act.[66] Whether or not
the High Court would or could conclude this is not possible is yet to be
determined.
THE AUSTRALIA ACT 1986 (Cth)
and THE AUSTRALIA ACT 1986 (UK)
There are other views on these acts.
The late Richard McGarvie believed that the Australian Parliament,
at the request of or with the concurrence of all the State Parliaments, can now
amend or repeal the Constitution Act or The Constitution.[67] This assertion is
confirmed in Mr McGarvie's book DEMOCRACY - choosing Australia's republic.[68]
Legal language is also a source for discussion
and interpretation in respect of the Australia Acts. In his advice to
the Republic Advisory Committee[69], Dennis Rose uses the words
'Épower to repeal or amend Section 8 of the Statute of Westminster to the
extent necessary for the purpose of repealing or amending the preamble or
covering clauses of the Constitution ActÉ' It could be argued that the use of
the words 'extent necessary' could also allow for a wider interpretation than
that indicated if there was a desire or need to do so.
Accordingly, this approach could possibly
assume a greater extent of power to repeal, in toto, the Constitution Act or
the Constitution itself.
Professor George Winterton[70] has also indicated that the
preamble and the covering clauses of the Constitution Act could be amended or
repealed either by Commonwealth legislation enacted at the request, or with the
concurrence, of all state parliaments pursuant to s 15(1) of the Australia Act
1986 (UK) or pursuant to s 51(xxxviii) of the Constitution; the latter being
subject to the Constitution. If the latter is stated as being
subject to the Constitution then it must be implicit that the former is not.
Indeed, the Australia Act 1986 (UK) is a British statute and is a
fundamental or higher law which prevails over ordinary laws.[71] However, when the
Constitution (Requests) Bill 1999[72] was
introduced into the Queensland Parliament it was not only done so pursuant to
both of the Australia Acts (Cth and UK) but also pursuant to the section
51(xxxviii) of the Constitution. It would appear from this diversity of
views, that there is considerable scepticism within the constitutional legal
fraternity about the scope of the powers of the Australia Acts.
There is argument that s 128 (of the
Constitution) may, by inference, have been itself restricted in operation by
the British Act.[73]
Although, as a practical matter, it might be said, it is unlikely that any
amendment to the Australia Act would ever be sought.[74] However, there
is now evidence that the argument that any amendment to the Australia Act would
not be sought is now void.
In 1999, the New South Wales Parliament enacted
legislation[75] - in accordance with
Section 15 (1) of the Australia Acts - requesting the Commonwealth Parliament
to amend both the Australia Act 1986 (Cth) and the Australia Act 1986 (UK) to
add the following at the end of section 7 of each of those Acts:
(6) The Parliament of a State may make a law
providing that the preceding subsections do not apply to the State.
(7) Upon the coming into effect in a State of a law referred to in subsection (6), this section ceases to apply to the State as provided by that law.
(7) Upon the coming into effect in a State of a law referred to in subsection (6), this section ceases to apply to the State as provided by that law.
In other words, the additional sub-paragraphs
to section 7 would allow for the any or all of the States to become republics
in their own right with or without a Commonwealth referendum.
Similar legislation was enacted in all of the
other 5 States. As well as providing for the changes outlined
above, these Acts also provided for the commencement day to be fixed by proclamation.
That day could not be before the day on which the Constitution
Alteration (Establishment of Republic) 1999 [76] received Royal Assent.
Because the 6 November 1999 republic referendum failed to gain the
approval of the Australian people, that Act could then not receive Royal
Assent.
Accordingly, each state Act requesting the
Australia Acts 1986 (Cth) and (UK) be amended was left in limbo. In 2000, New
South Wales[77], Queensland[78] and South Australia[79] repealed their respective Australia
Acts (Request) Act 1999. Victoria, Western Australia and Tasmania
have not repealed their respective Australia Acts (Request) Act 1999.
Additionally, Western Australia[80] and Tasmania[81] have indicated that there
are no current plans to repeal these Acts.
However, nothing in law is immutable.[82] Technically,
there would be nothing to stop Victoria, Western Australia and Tasmania from
amending their respective request Act to alter the commencement date to another
date in the future and for New South Wales, Queensland and South Australia to
re-introduce similar legislation - with the same commencement date as that of
the other three States - without the will of the Australian people.
Most Australians only have a scant knowledge of
their Constitution. At most, it might be said that just under one
in five Australians have some idea of what the Constitution contains while just
over one in two Australians are aware that we have a written Constitution at
all.[83] If most
Australians do not understand their Constitution itself, then, it would not be
too hard to visualise that most voters were probably not aware of the proposed
changes to both of the Australia Acts prior to the 6 November 1999 republic
referendum.
Accordingly, it wouldn't be too difficult to
contemplate a future and 'silent' attempt to re-introduce such changes.
For example, in 2000 the New South Wales
Parliament amended the Constitution Act 1902.[84]
Section 13A of that act was amended in relation to the vacation of seats of
Parliament following conviction for certain offences. The Bill relating
to this Act travelled at break-neck speed. It was introduced in
both the Legislative Assembly and the Legislative Council on 7 June 2000 and
sent to the Governor on 8 June 2000 who assented to it "in the name and on
behalf of Her Majesty" on 9 June 2000! The assent thereof was
reported in the New South Wales Legislative Assembly on the same day.
Of course, it will be argued by some that,
because this part of the New South Wales Constitution is not subject to
referendum, it is just simply an administrative change to be implemented by the
Parliament alone. Not many people would understand this quaint
anachronistic arrangement given that any Incorporated Association or Company
can only change its rules by a vote of all its members at a special general
meeting. The New South Wales voters have no control over these and other
aspects of their state Constitution; only a few sections are subject to
referendum process. Fundamental rules about the acquisition of
public power cannot confidently be left to those who presently hold power or
who have regular prospects of doing so.[85]
Up until the enactment of the Constitution
(Parliamentary Reform) Act 2003, the situation in the state of Victoria was
even less democratic because the Constitution of that state was not subject to
any referenda requirements at all. Victoria could not alter the
constitution of its Parliament, or either House, at that time unless the
amending bill was passed by an absolute majority in each House.[86] Given this,
and a possible scenario of further action under the Australia Acts similar to
the one conducted in 1999, the people of Victoria could find themselves with a
Constitution that, while they may not wish to acquiesce to by 'popular
sovereignty', they are blindly forced to accept without having given opinion.
That said, the Constitution (Parliamentary Reform) Act 2003 now provides for
important core provisions to be changed only after the Victorian people vote at
a referendum. This requirement does not extend to Part 1 of The
Constitution Act 1975 which deals with the Crown. Nor does it apply to
Section 15 of that Act which describes the Victorian Parliament as consisting
of Her Majesty, the Council, and the Assembly. Accordingly, and
despite those democratic enhancements, the Victorian Parliament alone could,
with appropriate changes made to the Australia Acts, turn that State into a
republic without the will of the people.
Such parliamentary luxuries may even be more
detrimental to Australia's democracies in respect of the Australia Acts if all
Australian legislatures were under the control of one political party.
POLITICAL DISPOSITION CIRCA
1985-86
The following table shows the political
disposition of the Australian Parliaments circa 1985-1986:[87]
|
Parliament
|
Political
Party
|
Political
Leader
|
|
Commonwealth
|
Labor
Party
|
Bob
Hawke
|
|
New
South Wales
|
Labor
Party
|
Neville
Wran
|
|
Victoria
|
Labor
Party
|
John
Cain
|
|
South
Australia
|
Labor
Party
|
John
Bannon
|
|
Western
Australia
|
Labor
Party
|
Brian
Burke
|
|
Queensland
|
National
Party
|
Joh
Bjelke-Petersen
|
|
Tasmania
|
Liberal
Party
|
Robin
Gray
|
From
this table we can see that one political party, while not in control of all
legislatures, did, in fact, have significant representation at the time of the
enactment of the Australia Acts. Could this aspect have played a part in
repatriating the remnants of Australian constitutional authority by the
politicians rather than by the will of the people?
The
repatriation process in this case was not consistent with the involvement of
the people in establishing the Constitution in the late 1890s.
While only 52% of the people supported the Australian Constitution then, and
despite that most women and many aboriginals were excluded from voting, [88] the people
were, nonetheless, involved. The true spirit of sovereignty allowed to be
exercised by the framers of our Constitution in the 1890s was not mimicked by
Australia's politicians of the 1980s with the repatriation of the final
elements of constitutional authority.
If
the make-up of the Australian parliaments circa 1985-86 was fundamental to the
way in which the repatriation process took place then, could there be a misuse
of the powers under s15 (1) of the Australia Acts sometime in the future?
If, say, the Liberal Party was to have control of all the legislatures
at some time in the future and given Robert Hughes' assertion that 'With the
'80s came a true plutocratic overclass' and that 'No politician can hope to get
elected to national office without the support of these highly placed Mates',[89] could we not
see the 'ruling elite' impose their will over a political party?
Dr Carmen Lawrence, the federal member for Fremantle and former premier of
Western Australia, is right about the 'Byzantine power-focused behaviour' of
the major parties and their 'disquieting alliance' with corporations and large
organisations. There is a relationship, Dr Lawrence says, between
the amount of money the privileged minorities provide the big parties and the
influence they are able to wield with party leaders.[90]
David Humphries[91] further sums
up this dilemma:
'The
problems of money in politics are not isolated to the US,' reported Damian
O'Connor, Labor's left-wing assistant NSW State secretary. 'Private money is
rarely strings-free.'
His report refers to his US hosts negatively and helplessly raising the pivotal role of fundraising. A congressman, pursuing a $3 million re-election purse for his safe seat, devoted two hours a day to fundraising and 'there was a strong impression that fundraising was the central task in obtaining public office'.
O'Connor argues the US trip highlighted the need here to halt what he says is the risk of our political system being 'captured by corporate interests to the exclusion of the needy or our positive goals'.
The influence of the corporate dollar in State politics is increasing at a disturbing rate and NSW Labor ought to take the lead in working on ways to curb its influence,' he said. He thinks expenditure and donation limits should be considered and electronic media advertising restricted.
His report refers to his US hosts negatively and helplessly raising the pivotal role of fundraising. A congressman, pursuing a $3 million re-election purse for his safe seat, devoted two hours a day to fundraising and 'there was a strong impression that fundraising was the central task in obtaining public office'.
O'Connor argues the US trip highlighted the need here to halt what he says is the risk of our political system being 'captured by corporate interests to the exclusion of the needy or our positive goals'.
The influence of the corporate dollar in State politics is increasing at a disturbing rate and NSW Labor ought to take the lead in working on ways to curb its influence,' he said. He thinks expenditure and donation limits should be considered and electronic media advertising restricted.
Unfortunately,
successive parliaments have failed to implement reforms that have been
repeatedly proposed over recent years by the Australian Electoral Commission.
Unless Federal and State governments act to fix deficiencies in
the electoral laws, the perception that the system is open to shady fundraising
practices, hidden gifts and the buying of influence and government favours will
continue to erode already low confidence in the integrity of the political
process.[92]
Following
on from that we should note the words of Richard McGarvie:
Once
Cabinet was the linchpin of the systems of government but now in the
Commonwealth it is the Prime Minister and in a state the Premier.
Through its control of Parliament, the political party in power makes the
important decisions Parliament once made itself. There is an
extensive system of political parties that enforce a tight discipline over
party members. The Prime Minister or Premier can usually exert a
considerable degree of control over his or her whole party.
Through that control - the ability to have Parliament dissolved and the
patronage the office gives - the Prime Minister or Premier has extensive
control over members of cabinet and members of the government party in
Parliament. The Prime Minister or Premier also has substantial control
over the great administrative resources of the Public Service.[93]
This
recent and undemocratic trend is no better demonstrated that when the Whitlam
government was elected in 1972. Initially, there were only two Queen's
Ministers of State for the Commonwealth to advise the Governor-General; they
were Prime Minister and one other Minister!
Another,
and perhaps disturbing, aspect is that 'the trend toward younger members of
parliament means that pensions are paid for a longer period as retirees are
younger' and that 'politics was once viewed as something people aspired to
after they had made their mark as lawyers or teachers or community workers.
Today, it is a first career. This means that federal and state parliaments are
increasingly being filled with people with very little experience in the wider
world.'[94] Therefore,
their ability to make mature and sensible judgements will never be tempered
with the benefit of that worldly experience. This could lead to their decision
making processes being manipulated by more powerful and influential members of
the public at large rather than their arriving at well reasoned and stand
alone decisions that reflect the needs of the nation and not that of the
powerful and wealthy.
THE
HIGH COURT OF AUSTRALIA
The
framers (of the Constitution) did not seek to establish a Constitution that
would set the ground rules for all time but a document that would evolve.
The Constitution can be reinterpreted by the High Court, and more
important, amended by the Australian people. Where there has been
significant updating, this has been done by the judges of the High Court.
They have generally been willing to reinterpret the Constitution to meet
their perceptions of the needs of the Australian society. This is
distinctly second-best solution to that of Australians undertaking the task.
It risks further alienation of the people from their government by
suggesting that the task of renewal is not their responsibility but that of the
High Court.[95] On the issue
of 'precedent', Emeritus Professor Leslie Zines, writes:[96]
'The
High Court has never regarded itself as bound by its own decisions and in the
area of constitutional law the principle of stare decisis is regarded as
having somewhat less force than in other areas of the law, for the obvious
reason that parliament cannot rectify the consequences of a decision of the
High Court on the Constitution.
The High Court has on a number of occasions overruled its earlier decisions in constitutional law.'
The High Court has on a number of occasions overruled its earlier decisions in constitutional law.'
Whatever
room there may be for debate about the meaning of what the framers of the
Constitution said, either expressly or by implication, and subject to the
possibility of constitutional change, [the High Court is] bound by their choice
not to say certain things. We can interpret what they provided,
and we can make implications from what they said, where that is appropriate.
But if they remained silent on a matter, and legitimate techniques
of interpretation cannot fill the gap they left, then we are bound by their
silence.[97]
The
2000 US presidential election has highlighted the possibility of the stacking
of the courts. That the (US) Supreme Court has been the object of
political stacking by both sides has been obvious for years. In
Australia, we are rapidly going down the path to similar politicisation of the
courts. The High Court has obviously been highly political for years,
no more so that when Chief Justice Sir Anthony Mason, after his Pauline
conversion to activism, led it into all kinds of capers. But Mason
was never partisan, even though quite a few judges have been and are.
One classic case was Justice Eddie McTiernan who held onto his
place on the High Court into advanced senility so as to ensure that he was
succeeded by a Labor appointment.[98]
To be sure, our system occasionally produces a judge who is non-conformist to
the point of quirkiness, or anti-government to the point of anarchy.[99]
No
one can predict the make-up of the Australian Parliaments in 2050 and, noting
that the Justices of the High Court are appointed by the
Governor-General-in-Council[100] on the
advice of the Government, nor can anyone predict the make-up of the High Court
either. Accordingly, no one is able to state with absolute
confidence as to whether or not that, some time in the future, outside and
unconstitutional influences on these institutions could take place.
Any possibility of misusing powers under s 15 (1) of the Australia
Acts should have cause for concern. Even the remote possibility of
circumventing s128 (of the Constitution) should be closed off.[101]
Could our current constitutional arrangements allow us to
tread the pathway to the slippery slope of anarchy in the future?
THE
FUTURE IS OUR RESPONSIBILITY
If
there is any lesson to be learned from the journey into this debate it can be
said that it is very clear that nothing is clear about the extent of the powers
of the Australia Acts. Had the residual constitutional authority
been retrieved with the will of the people in 1986, then the problems relating
to this situation would, in the main, have been automatically resolved.
There can be no argument about the constitutionality of the
Statute of Westminster and the Australia Acts. There can be no argument
that the people do not have supreme control over these documents as they should
in a democratic society. Accordingly, any decision as to the
validity of these acts should not be left to the High Court which the make-up
of changes from time to time. It is now time for the people to use
their democratic right to assert their authority over the Australian
Parliaments to gain total control over their constitutional arrangements.
How can this been done?
GAINING
CONTROL
There
maybe numerous ways for the people to gain total control of their
constitutional arrangements. Some suggestions follow:
- The Commonwealth Parliament could simply put a proposal to the people in accordance with Section 128 of the Constitution to amend the first line of Section 128 of the Constitution to read:
- This Constitution, The Commonwealth of Australia Constitution Act 1900 (UK), The Statute of Westminster 1931 (UK), The Australia Act 1986 (Cth) and The Australia Act 1986 (UK) shall not be altered except in the following manner: - (Note: Attendant changes to Section 15(1) of the Australia Acts 1986 (Cth & UK) may also be required):
- The Commonwealth Parliament could seize its authority under section 15(3) of the Australia Acts to seek a power to:
- Rename the existing schedule to the Constitution to 'Schedule 1' with an attendant change to section 42 of the Constitution,
- Add Schedule 2 consisting of the Statute of Westminster,
- Add Schedule 3 consisting of the Australia Act 1986 (Cth),
- Repeal Section 15 of the Australia Acts, and
- Include a provision in s128 of the Constitution so that any repeal or amendment of any or all of the schedules is subject to the existing amendment provisions of s128 of the Constitution.
- The Commonwealth Parliament could seize its authority under section 15(3) of the Australia Acts to seek a power to:
- Amend section15(1) of the Australia Acts to read:
This
Act or the Statute of Westminster 1931, as amended and in force from time to
time, in so far as it is part of the law of the Commonwealth, of a State or of
a Territory, may be repealed or amended by an Act of the Parliament of the
Commonwealth passed at the request or with the concurrence of the Parliaments
of all the States, with such provisions having been approved by a majority
of voters in each of the States, and, subject to subsection (3) below, only
in that manner.
- The Commonwealth Parliament could seize its authority under section 15(3) of the Australia Acts to seek a power to:
- Amend section15 of the Australia Acts to read:
This
Act or the Statute of Westminster 1931, as amended and in force from time to
time, in so far as it is part of the law of the Commonwealth, of a State or of
a Territory, may be repealed or amended by an Act of the Parliament of the
Commonwealth in accordance with the provisions of s128 of the Constitution of
the Commonwealth, and only in that manner.
- The Commonwealth and State Parliaments, under the existing authority of section 15(1) of the Australia Acts, amend section 15(1) of the Australia Acts to read:
- This Act or the Statute of Westminster 1931, as amended and in force from time to time, in so far as it is part of the law of the Commonwealth, of a State or of a Territory, may be repealed or amended by an Act of the Parliament of the Commonwealth passed at the request or with the concurrence of the Parliaments of all the States, with such provisions having been approved by a majority of voters in each of the States, and, subject to subsection (3) below, only in that manner.
Each
State parliament could include a new Chapter/Section in their State
Constitution along the lines of the following example (The example shown is
based on the Queensland Constitution):
CHAPTER
? - SPECIAL PROCEDURE TO
CHANGE
CERTAIN CONSTITUTIONAL MATTERS
Certain
measures to be supported by referendum
1.
A Bill that expressly or impliedly provides for the repeal or the amendment of
any or all of:
(a)
the Australia Act 1986 of the Parliament of the Commonwealth of Australia,
(b)
the Australia Act 1986 of the Parliament of the United Kingdom,
(c)
the Statute of Westminster 1931 of the Parliament of the United Kingdom, or
(d)
the Commonwealth of Australia Constitution Act of the Parliament of the United
Kingdom,
must
not be presented for assent by or in the name of the Sovereign unless it has
first been approved by the electors in accordance with this section and a Bill
assented to after its presentation in contravention of this subsection has no
effect as an Act.
2. On
a day not sooner than 2 months after the passage through the Legislative
Assembly of a Bill of a kind referred to in subsection (1) the question for the
approval or otherwise of the Bill shall be submitted to the electors qualified
to vote for the election of members of the Legislative Assembly under the
Electoral Act 1992.
3.
The day is to be appointed by the Governor in Council by Order in Council.
4.
When the Bill is submitted to the electors the vote must be taken in the manner
the Parliament of Queensland prescribes.
5.
If a majority of the electors voting approve the Bill, it must be presented to
the Governor for its reservation for the signification of the Sovereign's
pleasure.
6.
Any person entitled to vote at a general election of members of the Legislative
Assembly is entitled to bring proceedings in the Supreme Court for a
declaration, injunction or other remedy to enforce the provisions of this
section either before or after a Bill of a kind referred to in subsection (1)
is presented for assent by or in the name of the Sovereign.
7.
This section does not affect the operation of the Constitution Act Amendment
Act 1934.
Making
one of above-mentioned changes would ensure that:
1.
No further approach could be made back to the United Kingdom without the
consent of the people regardless of the Australian High Court acceptance that
constitutionally speaking, in relation to Australia, the United Kingdom is now
a 'foreign power',[102]
2. No further argument that the Constitution or the Constitution Act could be legally changed without the will of the people could be entertained,
3. Supreme sovereignty of the people of Australia over their constitutional arrangements would be finally achieved in writing, and
4. The unrealistic and academic notion of 'popular sovereignty' - a concept that wouldn't cut much chop with the average 'bloke' or 'sheila' - would be consigned to the rubbish bin forever.
2. No further argument that the Constitution or the Constitution Act could be legally changed without the will of the people could be entertained,
3. Supreme sovereignty of the people of Australia over their constitutional arrangements would be finally achieved in writing, and
4. The unrealistic and academic notion of 'popular sovereignty' - a concept that wouldn't cut much chop with the average 'bloke' or 'sheila' - would be consigned to the rubbish bin forever.
WHEN
COULD SUPREME SOVEREIGNTY OF THE PEOPLE BE ACHIEVED
On
10 May 2001, the Commonwealth Parliament assembled at the Victorian Parliament
House, Melbourne, where it sat for 27 years beginning in 1901. As
in 1901, the House of Representatives sat in the Legislative Assembly and the
Senate sat in the Legislative Council. This Sitting, under the
direct control of the Commonwealth Parliament was seen to be a major focus of
the importance of Victoria in the development of the Federal Parliament and
indeed the Nation.[103]
There
was, of course, much said about the attainment of the Centenary of Federation
in a congratulatory and celebratory manner during that sitting.
Not that there was anything wrong with that! But it could have
been even more significant for the Nation if the sitting had been used, in
part, to either commence or finish with the finalisation of control of all
constitutional authority by the people. It could have be an act of coming
together regardless of being indigenous or non-indigenous, regardless of
religion, regardless of political affiliation, regardless of gender and
regardless of any other belief or alignment. We could have been
essentially as one for a very important celebration and that celebration should
have been done in no lesser a form. It would have ordained our
current elected public servants with the same distinction and aura that we now
place on the founders of our magnificent constitution.
However,
that was not to be. But this issue should not be allowed to die; we
should all take responsibility to do what we can to move public thinking to
ensure that the people attain total sovereignty of their constitution.
It is something that can be easily done. All that is needed is the
will of our parliamentary representatives. If we can do this, then
the spirit of the framers would be better commemorated by having the courage to
look at Australia's constitutional arrangements with a degree of prescience
about the demands of the new century, as they did[104] and
we will have done our duty correctly and remembered the lessons of the past and
observed the watchword of freedom and justice to all![105]
HOW
CAN YOU HELP?
Contact
your local Commonwealth and State elected public servants and let them know
that you want total sovereignty of all of Australia's constitutional documents.
Time is precious, so do it NOW !
BIOGRAPHICAL
DETAILS
Nick
Hobson DFC AFC
Nick
Hobson was born in Devonport, Tasmania in 1944. On completion of his education
at Devonport High School in 1960 he was employed with the Bank of New South
Wales (now Westpac).
In
1966 he joined the RAAF where he graduated as a pilot with the rank of Pilot
Officer. On graduation he undertook an Iroquois helicopter conversion and later
served with No. 9SQN in South Vietnam as a helicopter pilot where he was
awarded the Distinguished Flying Cross (DFC). In 1970, Nick was selected to
undertake an instructor's course with the RAF in the United Kingdom. On return
to Australia he took up helicopter instructional duties at No 5SQN in Canberra.
In 1971, he was involved in extensive rescue operations during the great floods
in the Darling River district of NSW for which he was later awarded the Air
Force Cross (AFC).
In1972,
Nick was selected for a tour of duty as an exchange officer to fly and instruct
on helicopters with the USAF at bases in Florida and Arizona. Other highlights
of Nick's RAAF career include a two-year term as ADC to the Governor of
Victoria and several tours (including two tours in Command) of peacekeeping
duties with the United Nations and the Multi-National Force and Observers based
in Egypt. After 20 years of service Nick retired from the RAAF with the rank of
Wing Commander.
In
1986 Nick took up the position of Senior Projects officer with the NSW
Directorate of Bicentennial Events after which he was employed as the General
Manager of the Westpac SLSA Helicopter Rescue Service. Due to the formation of
the Australian Republican Movement Pty Ltd in 1991, Nick became involved in the
republican debate and remains strongly committed to the retention of
Constitutional Monarchy as the best form of government suited for Australia and
its people for the foreseeable future.
The
author may be contacted at mailto:support@statusquo.org
ANNEX
B
ANNEX
C
ANNEX
D
NOTES:
[1] J.J. Keenan, The
Inaugural Celebrations of the Commonwealth of Australia, William Applegate
Gullick, Government Printer (NSW), 1904.
[2] G.J. Craven, The Kirmani
Case-Could the Commonwealth Parliament Amend the Constitution Without a Referendum,
The Sydney Law Review, March 1986, pp. 64-72.
[3] Act No. 142, 1985; assented
to 4 December 1985 and came into operation on 3 March 1986 at 5.00 a.m. Greenwich
Mean Time (see Gazette 1986, No. S85, p.1).
[4] Tony Blackshield and G
Williams, Australian Constitutional Law and Theory, The Federation
Press, 1998, p156.
[5] An Act of the Parliament of
the United Kingdom of Great Britain and Ireland, 63 and 64 Victoria, 9 July
1900, Proclaimed by Queen Victoria on 17 September 1900 and establishing the
Commonwealth of Australia on 1 January 1901.
[7] Quick and Garran, The
Annotated Constitution of the Australian Commonwealth , 1901 edition
reprinted by Legal Books, Sydney, 1995, p. 989.
[8] G.J. Craven, The Kirmani
Case-Could the Commonwealth Parliament Amend the Constitution Without a
Referendum?, The Sydney Law Review, March 1986, p. 67.
[10] P.H. Lane, Lane's
Commentary on The Australian Constitution, Second Edition, LBC Information
Services, 1997.
[11] Eg the Constitution Act 1902
(NSW), s 5 refers to the Commonwealth of Australia Constitution Act alone.
[13] Clause 7 of the
Constitution Act repealed the Federal Council of Australasia Act, 1885 so as
not to affect any laws passed by the Federal Council of Australasia and in
force at the establishment of the Commonwealth.
[16]
P.
Hanks & D Cass, Australian Constitutional Law: Materials and Commentary
, Butterworths, Sydney, 1999, p320.
[17]
P.H.
Lane, An Introduction to the Australian Constitution , Fifth Edition,
LBC The Law Book Company, 1990, p3.
[18]
K.C.
Wheare, The Constitutional Structure of the Commonwealth , Oxford at the
Claredon Press, 1960, p60.
[19]
Quick
and Garran, The Annotated Constitution of the Australian
Commonwealth, 1901 edition reprinted by Legal Books, Sydney, 1995, p. 991.
[20]
Quick
and Garran, The Annotated Constitution of the Australian
Commonwealth, 1901 edition reprinted by Legal Books, Sydney, 1995, p. 994.
[23]
P.H.
Lane, An Introduction to the Australian Constitution , Fifth Edition,
LBC The Law Book Company, 1990, pp 3-4.
[25]
P.H.
Lane, An Introduction to the Australian Constitution , Fifth Edition,
LBC The Law Book Company, 1990, p 5.
[26]
P.H.
Lane, An Introduction to the Australian Constitution , Fifth Edition,
LBC The Law Book Company, 1990, p 6.
[27]
P.H.
Lane, Lane's Commentary on The Australian Constitution , LBC Information
Services, 1997, p3.
[28]
Preamble,
Statute of Westminster Adoption Act 1942 , Act No 56, 1942, assented to
on 9 October 1942.
[29]
K.C.
Wheare, The Constitutional Structure of the Commonwealth , Oxford at the
Claredon Press, 1960, Chapter III.
[32]
Tony
Blackshield & G Williams, Australian Constitutional Law and Theory ,
The Federation Press, 1998, p1218.
[35]
P
H Lane, Lane's Commentary on The Australian Constitution, LBC Information
Services, 1997, p3, note 6.
[37]
P
H Lane, Lane's Commentary on The Australian Constitution, LBC Information
Services, 1997, p4.
[38]
P
Hanks & D Cass, Australian Constitutional Law: Materials and Commentary
, Butterworths, Sydney, 1999, p320.
[40]
P
H Lane, Lane's Commentary on The Australian Constitution , LBC
Information Services, 1997, p3.
[41]
P
H Lane, Lane's Commentary on The Australian Constitution, LBC Information
Services, 1997, p3.
[42]
P
H Lane, Lane's Commentary on The Australian Constitution, LBC Information
Services, 1997, p4.
[45]
Dennis
Rose QC, An Australian Republic : the Options , AGPS, Canberra, c1993,
Vol 2, Appendix 8, p301.
[46]
P
H Lane, Lane's Commentary on The Australian Constitution , LBC
Information Services, 1997, p4.
[48]
P
H Lane, Lane's Commentary on The Australian Constitution , LBC
Information Services, 1997, p3, note 6.
[49]
Tony
Blackshield and G Williams, Australian Constitutional Law and Theory ,
The Federation Press, 1998, p156.
[50]
Cox
Newspapers, A solution from heaven: give sovereignty to God , The Sydney
Morning Herald, 29 July 2000.
[51]
Tony
Blackshield and G Williams, Australian Constitutional Law and Theory ,
The Federation Press, 1998, p157.
[52]
Tony
Blackshield and G Williams, Australian Constitutional Law and Theory ,
The Federation Press, 1998, p157.
[53]
Tony
Blackshield and G Williams, Australian Constitutional Law and Theory ,
The Federation Press, 1998, p157-8.
[57]
Dennis
Rose QC, An Australian Republic : the Options , AGPS, Canberra, c1993,
Vol 2, Appendix 8, p300.
[58]
Dennis
Rose QC, An Australian Republic : the Options , AGPS, Canberra, c1993,
Vol 2, Appendix 8, p300.
[60]
Letter
to the present writer from John Olsen, Premier of South Australia, 28 March
2000 (Annex C).
[62]
P
Hanks & D Cass, Australian Constitutional Law: Materials and Commentary
, Butterworths, Sydney, 1999, p320.
[64]
P
H Lane, Lane's Commentary on The Australian Constitution , LBC
Information Services, 1997, p3, note 6.
[66]
G
Winterton, The States and the Republic: A Constitutional Accord , 1995,
6 Public Law Review 107.
[69]
Dennis
Rose QC, An Australian Republic: the Options , AGPS, Canberra, c1993,
Vol 2, Appendix 8, p303.
[70]
G
Winterton, The States and a Republic: A Constitutional Accord , 1995, 6
Public Law Review 107.
[79]
Letter
to Author from Micahel Atkinson, Attorney-General for South Australia ,
5 September 2002.
[82]
M
Kirby, The Australian Referendum on a Republic - Ten Lessons , 2000
Menzies Memorial Lecture, London, 4 July 2000.
[86]
P
H Lane, An Introduction to the Australian Constitution , 5th
edition, The Law Book Company Limited, 1990, p188.
[87]
Parliaments
of the Territories are not included as they have no jurisdiction in respect s
15 of the Australia Acts.
[89]
Robert
Hughes, 'Essays and Observations on the Land I love, Official Souvenir
Program Sydney 2000 Games , Sports Illustrated, New York, September 2000.
[97]
Murray
Gleeson, Law and Liberty, partners sharing the same goals , Sydney
Morning Herald, 20 November 2000.
[98]
Padraic
P. McGuinness, Our High Court dons the same political garb as US, Sydney
Morning Herald, 16 December 2000.
[99]
Murray
Gleeson, High Court can't escape being seen as controversial, Sydney Morning
Herald, 18 December 2000.
[102]
M
Kirby, The Australian Referendum on a Republic - Ten Lessons , 2000
Menzies Memorial Lecture, London, 4 July 2000.
[105]
J
J Keenan, The Inaugural Celebrations of the Commonwealth of Australia,
William Applegate Gullick (Government Printer), Sydney 1904, P175.
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