Republic? More Power For Politicians (p10 of 11)

PREAMBLE

The Commonwealth of Australia Constitution Act 1901 (referred to earlier under the heading 'The Westminster System in Australia') is the Act of the British Parliament by which the six Australian Colonies were brought together as a federation known as Australia (or the 'Commonwealth of Australia'). Section 9 of that Act contains and establishes the Constitution.

In its own terms (section 128) the Constitution can be changed only with the consent of a majority of the Australian people. This consent must be obtained from an overall majority of people casting formal votes at a referendum and must also be obtained from similar majorities in a majority of States. This means that for a change to be approved a majority of voters in four states must approve it.

It is normal for Acts of Parliament to commence with a Preamble. The Preamble is a statement of the intention and purpose of the Act and can be used for interpreting and applying the Act.

The Commonwealth of Australia Constitution Act 1901, like other Acts, has its own Preamble:

"Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland and under the Constitution hereby established:"

The Preamble is not part of the Constitution and is not subject to change by referendum under section 128. Nevertheless, it was discussed at the Constitutional Convention. The recommendation of the Convention was to retain the present Preamble, and draw up an additional Preamble for the Constitution itself.

The Prime Minister announced that he would accept the recommendation of the Constitutional Convention and a new Preamble that could not be used for interpreting the Constitution would be prepared and put to the people as part of the forthcoming referendum. Although there have been a number of suggestions for the wording of the new Preamble (including one prepared by the Prime Minister with assistance from a noted Australian poet) none has yet been put forward for consideration by Parliament.

When the final wording intended for the Preamble is made available it will need to be scrutinised closely.

The scrutiny is essential to ensure either that it really cannot be used for interpreting or understanding the Constitution (in which event it seems pointless having a new Preamble) or to really understand the interpretation or nuances that it might import into the Constitution as a whole or into any particular section. Such scrutiny is not easy. No matter what words are in or related to the Preamble it is difficult to be sure it will never be used for interpretation. It is even harder to foresee the nuances or understandings it might import into the Constitution as a whole or into a particular section in the event that it is used for interpretation. Whatever the wording of the Preamble might be and whatever protections might appear to be included, it would be wise to vote "No". Of course, at this stage it is not even certain there will be a question in the Referendum about the Preamble.

Despite the recommendation of the Convention and the undertaking of the Prime Minister, a decision has been made to repeal the present Preamble. Over the years there has been a perennial question as to whether the Preamble, and the Commonwealth of Australia Constitution Act itself, are capable of repeal or amendment and, if they are, whether the power is still vested in the British Parliament.

It is hard to understand how such a question could continue to be asked by anyone, let alone anyone with any knowledge of law or government. The answer is clear. Although there is no specific 'reception' legislation, there is a principle of 'devolution' of law to colonies that become independent. Under this principle the Commonwealth of Australia Constitution Act (including the Preamble) became law exclusively under Australian control. If there could ever have been any doubt about this, such doubt was fully put to rest by section 2 (2) of the Statute of Westminster 1931 (UK) and the Statute of Westminster adoption Act 1942 (Aust). Further, if any continuing doubt could remain, a simple amendment by the Commonwealth Parliament to the Statute of Westminster in its application to Australia (by adding something like:

"Nothing in this Act prevents the amendment or repeal of the Commonwealth of Australia Constitution Act or any other Act, order, rule or regulation of the United Kingdom in so far as the same is part of the law of Australia. "

would put a further "layer of concrete" on the grave of doubt.

In fact, the decision to remove the present Preamble is being implemented in this very way, including an amendment to the Statute of Westminster. Also, the whole of the Commonwealth of Australia Constitution Act is in the process of being repealed except for section 9 (the section containing the Constitution). The legislative process for repeal is for the Act (Constitution (Requests) Bill 1999) to be enacted by all State Parliaments and then by the Federal Parliament. This has already been done in most States at the date of writing (early July 1999) but there has been little publicity.

Procedures similar to those in train for the Constitution (Requests) Bill 1999 are also in progress for the Australia Acts (Request) Bill 1999. This latter Bill will enable a State to repeal section 7 of the Australia Act 1986 to the extent that it applies to that State. In simpler words, a State will be able to become a Republic.

In all States except Queensland and Western Australia there will be no need for referendum or any other reference to the people before declaring the State a Republic. It can be done by ordinary legislation of the State Parliament. Even in Queensland and Western Australia it is not certain that a referendum would be required.

Although the Constitutions of Queensland and Western Australia require referendums before changes are made, those Constitutions are State laws. The Australia Acts (Request) Bill will be passed by the Commonwealth Parliament. It could then be said there would be an inconsistency between the State Constitutions and the new Commonwealth law. Section 109 of the Constitution provides that when there is an inconsistency between a State law and a Commonwealth law, the law of the State is invalid to the extent of the inconsistency. Accordingly, there is no place for certainty that a referendum will be required in any State before it becomes a Republic in the event of the Commonwealth of Australia becoming a Republic.

Written and authorised by Dr David Mitchell,
18 Proctors Rd. Dynnyrne, Tasmania 7005

Due acknowledgement should be given when quoting from material on this Site

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