November 7

Advice To Queensland: Si fractum non sit, noli id reficere

Why is the Queensland Constitution to be amended?

We asked this question in this column on 1 September 2005. We wrote to the Premier, Mr Peter Beattie on this, as well as to the Leader of the Opposition, the Leader of the Liberal Party and the independent MP’s.

The Premier‘s office has now responded, as have the other members of parliament.

The reply by the Premier’s Chief of Staff is courteous, and assures us that no change to the governor’s reserve powers is intended.

But we still think the amendments are unwise. The most important change is section 34. As amended, the section will read: “34 Power of Governor-Ministers Ministers hold office at the pleasure of the Governor who, in the exercise of the Governor’s power to appoint and dismiss the Ministers, must, in accordance with constitutional conventions, act on the advice of the Premier.”

It is not that we do not accept the Premier’s assurance, but the interpretation of the amendments will not be for him or the government. The meaning of the amendments remains unclear, and may invite legal challenges in the future.

Why introduce uncertainty into such an important matter as the constitution? What happens if a future Premier decides to ignore convention, or even the law itself? Could a governor still act under the reserve powers?

Si fractum non sit…

THE ISSUES

It is useful to recall that the Constitution was consolidated and modernised quite recently, in the Constitution of Queensland Act, 2001.

(However certain sections of earlier constitutional legislation going back to the nineteenth and early twentieth centuries were not brought into the 2001 Act and remain in force. These are mainly about the requirement for the approval of the Queensland people in a referendum to the abolition of the office of the Governor, and the reinstitution of the Legislative Council.)

My letter to the Premier related to the Constitution and Other Legislation Amendment Bill, 2005 which the Premier had introduced on 25 August, 2005.

The most important change seemed to be to section 34.

This section currently provides:

“34 Power of Governor–Ministers Ministers hold office at the pleasure of the Governor who, in the exercise of the Governor’s power to appoint and dismiss the Ministers, are not subject to direction by any person and is not limited as to the Governor’s sources of advice.”

If the amendment were adopted, the section would read:

“34 Power of Governor-Ministers Ministers hold office at the pleasure of the Governor who, in the exercise of the Governor’s power to appoint and dismiss the Ministers, must, in accordance with constitutional conventions, act on the advice of the Premier.”

The crucial question is this: is this a mere consolidation of the existing constitutional practice?

Or would it deny the reserve power which, for example, the then Governor, Sir Walter Campbell, relied on to reject the advice of Sir Joh Bjelke- Petersen to dismiss most of the cabinet and remain Premier?

Other changes are proposed, which do not seem to raise such problems. One is a new section, section 33A.

This will provide:

"33A Power of Governor—Information The Governor may ask the Premier or another Minister for Information on any particular matter about the Government of the State that is relevant to the performance or exercise of the Governor’s functions or powers."

In addition the bill will take away the requirement that MP’s etc must swear the Oath of Allegiance. This will be an option.

THE PREMIER’S REPLY

The Premier’s Chief of Staff, Mr Rob Whiddon, advises that the Bill is a "conscientious endeavour" to refine and explain the Constitution, representing the last stage of constitutional reform began in 1999.

The Premier has "noted community concerns" that the amendment might in some way interfere with the governor’s reserve powers.

He has’ provided an assurance that the government’s intention is "to do no more than clarify the existing constitutional practice regarding the appointment and dismissal of ministers"

This view is confirmed by advice from the Solicitor General, which has been tabled as we asked.

The letter seems to suggest that the new section 33A is also only declaratory.

WE REMAIN CONCERNED

We accept Mr Beattie’s assurances as to the intention of the government.

The problem is that once enacted, the matter will be out of his hands and those of the government.

The reason?

It is for the courts to interpret the Constitution, not the government.

These provisions may be found to be restrictive of the governor’s powers. They may be found to have repealed other areas of the reserve powers not specified in the legislation.

That is, a court could say this is a codification of all of the governor’s powers- and as a result the others are repealed.

Certainly a party or person aggrieved by the exercise of the powers could go to court and argue this.

Why encourage litigation when there is no need for change, particularly when the government’s intention is to change nothing?

The other point is that by incorporating the reserve powers into the legislation, the law will make them "justiciable".

One of the great advantages of the reserve powers is that it is generally accepted that their exercise is final-you cannot go to court and challenge them.

They are said not to be justiciable.

That is because it is highly desirable to have finality in these matters.

Imagine if Sir John Kerr’s decision to remove Mr Whitlam’s commission had been challenged in the courts, Mr Whitlam aruing that he was denied natural justice ,even arguing that as a result he should be restored to office and the 1975 election set aside!

The political crisis about supply could have continued for months, with the economy and the country seriously damaged as a result

The politicians were prepared to do this in 1975-it was the Governor- General who resolved this political crisis by putting the question to the people to determine.

So our view remains that the changes are unwise.

ANOTHER ISSUE: DOES QUEENSLAND NEED A LEGISLATIVE COUNCIL?

That parts of the Constitution can be changed by Parliament raises another issue which I shall metion briefly.

It is something which was discussed at the recent ACM Annual Conference.

This is whether Queensland should revisit the abolition of the Legislative Council.

The Council was abolished in 1922 after the people had rejected a proposal to do precisely that!

To add insult to injury, the politicians then amended the Constitution to provide that any legislation to recreate the Legislative Council would require the approval of the people in a referendum!

To the argument that Queensland needs no more politicians, the obvious answer is to reduce the size of the Assembly so that the total number of representatives in the two houses does not exceed the present size of parliament.

The new Council could be elected by the people of Queensland as one electorate. Alternatively, this could be done on a regional basis.

CONCLUSION

But to return to the proposed constitutional changes.

The adage remains true…Si fractum non sit , noli id reficere.

The Americans translate this as: "If it aint broke, don’t fix it".

Until next time,

David Flint


Tags

Peter Beattie, queensland, Queensland Constitution


You may also like

Integrity be damned

Integrity be damned
{"email":"Email address invalid","url":"Website address invalid","required":"Required field missing"}

Subscribe to our newsletter!