Proposals to turn Australia into a republic face legal uncertainties and difficulties. There is no clear path to put in place such a change to one linchpin in Australia’s constitutional structure.
It is not clear that the amendment provisions in section 128 of the Constitution are intended to apply to replacing a fundamental element of our existing constitution; is substituting republic for constitutional monarchy an "alteration" within the meaning of section 128?
If section 128 can be used at all, it cannot be the means for sanctioning all of the necessary changes. From the time the Australian Constitution was established, many (possibly most) eminent constitutional commentators have agreed that section 128 cannot be used to change the Preamble to the Commonwealth of Australia Constitution Act and the first 8 sections of that Act (which are often known as the "covering clauses"). Section 128 expressly says it is to be used to alter "this Constitution"; the Preamble and covering clauses are outside "this Constitution". The Australia Acts in 1986, which extended to the States the legal independence which the Commonwealth has enjoyed since adopting the Statute of Westminster in 1942, seem to confirm this view.
There seems to be no clear means to change the Preamble and covering clauses. But these must be changed if Australia is to become a republic because they show, like the Constitution itself, that constitutional monarchy is one of the foundations of Australia’s federal representative democracy. The Preamble, for instance, states that:
"the people…humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown."
This was drafted by Australians for Australia. The style (but not all the substance) resembles the grand opening to the United States Constitution.
Section 51(xxxviii) of the Constitution (the "request and consent power") has been suggested as a source of power to change the Preamble and covering clauses. However, it is untested in this type of usage and requires every State Parliament to legislate to request and consent to the Commonwealth Parliament acting under this power.
The Australia Acts enshrine the pivotal role of the Crown in State Constitutions and can only be changed with the consent of all State Parliaments.
To the extent that section 128 can be used, it is arguable that section 128 itself may require the republican proposals to be approved by a majority of the voters in each and every State rather than just in a majority of States, because the republican proposals are likely to affect State constitutions (by, for example. Requiring States to become republics).
Any proposed route through the constitutional minefield could be challenged in the High Court, subject to that Court.
To give any republican proposal the best chance of being tested on its merits (or otherwise), the following procedure could be followed:
A proposal should not be put to a referendum unless, within a short time before the proposed referendum:
All State Parliaments have passed legislation which requests and consents to the Commonwealth Parliament considering and passing a law containing the republican proposals to be put to the people, and The Commonwealth Parliament has then passed that law.
The State legislation should be passed by the usual procedures for legislation in that State, unless extra procedures have been set down for such fundamental legislation, such as two-thirds majorities of each House of Parliament, a period of public hearings, and so on.
The Commonwealth law should be passed at least by the absolute majority (50% plus 1) set down in section 128 of the Constitution, should comply with any other extra procedures specified by the Commonwealth Parliament for the occasion, and should pass both the House of Representatives and the Senate (even though under section 128 the approval of one House of the Commonwealth Parliament is sufficient if there is deadlock for three months).
The proposals should then have to be passed by a majority of voters Australia-wide and also by a majority of voters in every State.
If the procedure just outlined is followed, it would have respected the arguable scope of requirements of sections 51(xxxviii) and 128 of the Constitution and would have fulfilled the requirements to change the Australia Acts. It would also have respected the fundamentals of Australian federal representative democracy, particularly that the will of the Australian people nationally and in each State, by their governments and by themselves, should be fully expressed to be in favour of such fundamental change.
This article does not canvass how specific must the questions be which are put to the Australian people for approval. Clearly a plebiscite which asked "Do you favour an Australian republic?" would be legally inadequate. But how much detail of the proposed changes to the Constitution and to the Preamble and covering clauses – and the effect on State Constitutions – must be spelt out in the referendum questions for them to be legally effective? This is a further Constitutional minefield.
Republican Proposals and the Constitution
"The Story So Far"
The Constitution of the Commonwealth of Australia comprises 128 sections and one schedule. These are contained in section 9 of the Commonwealth of Australia Constitution Act 1901 ("the Constitution Act").
The Constitution Act and the Commonwealth Constitution itself were almost entirely drafted in Australia, by eminent Australian lawyers, and was approved by the votes of Australians, after extensive debate in a series of constitutional conventions. The Constitution was then embodied in the Constitution Act, which was an Act of the United Kingdom Parliament.
The United Kingdom Government and the representatives of the governments of Australia, Canada and other self-governing dominions of the Crown within what was then the British Empire met in an Imperial Conference in 1926, which produced the Balfour Declaration on their self-governing dominion status, and in a further Imperial Conference in 1930.
In 1931, as an outcome of the Imperial Conferences, the United Kingdom Parliament passed the Statute of Westminster. Section 4 of the Statute of Westminster stated that no United Kingdom law passed in the future would apply to Australia or the other self-governing dominions unless a dominion "requested and consented" to its application.
This effectively gave legal independence to the Commonwealth, which adopted it in 1942 (operating retrospectively from the outbreak of the Second World War on 3 September 1939), but it did not apply to the Australian States.
In legislation passed (at the request and with the consent of all State Parliaments in 1985) by the United Kingdom and Commonwealth Parliaments in 1986, called the Australia Acts, the same legal independence became extended to the States. See especially section 1 of the Australia Act 1986 of the Commonwealth Parliament, which provides that no future United Kingdom law will apply to the Commonwealth or a State or a Territory.
Scope of Section 128 of the Constitution
Constitutional changes to implement any form of republic would require at least some changes to the text of the Constitution itself; for example, to remove the references to the Queen or the Crown in sections 1, 2, 3,4, 34(ii), 44, 57-61, 64, 66, 68, 73-74, 117, 122, 125, 126 and 128 of the Constitution.
The main mechanism for altering the Constitution itself is found in section 128 of the Constitution.
Section 128 of the Constitution requires an absolute majority (50% plus one of all members) in at least one out of the House of Representatives or the Senate, followed by approval at a referendum by a majority nationally of all State and Territory voters and also a majority of the voters in a majority of the States. If the two Houses of the Commonwealth Parliament are deadlocked for three months over the proposed Constitutional alteration, then the proposal can still go to the referendum.
The consent of each State under section 128?
Section 128 of the Constitution also states as follows:
"No alteration diminishing the proportionate representation of any State in either House of the ‘Commonwealth] Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law." [emphasis added]
It is unclear whether the emphasised words:
Merely refer to alterations affecting provisions of the Commonwealth Constitution in respect of one or more of the three preceding items (proportions of State representation, minimum number of State representatives, State limits); or
Refer to any alteration which affects a provision of the Commonwealth Constitution in relation to a State.
Refer to any alteration which affects a provision of the Commonwealth Constitution in relation to a State.
(The lack of definition of "the Constitution" , and the use of "this Constitution" elsewhere in section 128 to mean the Commonwealth Constitution itself, may raise an even more extensive meaning, such as an alteration which affects a State Constitution even if it does not alter the Commonwealth Constitution itself.)
The emphasised words appear to have received little attention when they were inserted in the Constitution towards the end of the drafting process. There is some expressed preference, from Quick and Garran (the earliest prominent Constitutional commentators) to more recent writers, for the narrow view.
But the wider view is open on the wording and punctuation of this part of section 128. It seems to make sense in terms of fundamental constitutional principle. In a Constitution which establishes a federal system, it seems strange (indeed, ridiculously anomalous) that the electors of a particular State in the federation are protected under section 128 itself from having a national majority and a majority of other States force on them a change in their State limits or representation in the Federal Parliament, but are not protected from having their Governor deposed and a republican president of the State imposed on them through a change to the Commonwealth Constitution which they – as the people of the State in question – themselves have not approved. The priorities seem reversed if that is the case.
Section 106 of the Constitution
The wider view of the quoted words in section 128 also appears to accord with the preferred reading of section 106 of the Constitution, which provides:
"The constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State."
If "subject to this Constitution" means that section 128 (with a narrow meaning of the emphasised words quoted above) could be used to insert a provision in the Commonwealth Constitution about the fundamental constitutional structure of a State without the consent of a majority of the electors of that State or the approval under the State’s own constitutional processes, the federal principle would be a dead letter and the protection purportedly given by section 106 would be worthless. Yet the Commonwealth Constitution has a federal system at its heart, and the High Court in case law has prevented Commonwealth power intruding into the essential governmental structure of the States.
It therefore seems more consistent with the rest of the Constitution, and with the principles underpinning it, to read "subject to this Constitution" as referring only to the powers or functions vested in the Commonwealth at Federation in 1901, or which are referred to the Commonwealth at some later time with the consent of the State.
This is consistent with other provisions of the Constitution:
At Federation, some powers were surrendered to the exclusive control of the Commonwealth, others to the concurrent control of the Commonwealth and States with a valid Commonwealth law having priority; State Governors were also given some functions in relation to Senate elections. Section 106 is placed with sections 107 and 110, which deal with powers and functions vested at Federation.
With respect to post-Federation transfers:
Section 111 allows a state to surrender any part of the State to the Commonwealth (as South Australia did with the Northern Territory in 1910).
Section 51(xxxiii) provides for acquisition, "with the consent of a State", of that State’s railways "on terms arranged between the Commonwealth and the State".
Section 51(xxxvii) provides for referral of powers to the Commonwealth Parliament by a State, "but so that the [Commonwealth] law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law".
Section 6 of the Australia Act 1986 (Cth) ensures that the Australia Acts do not affect a State’s procedures for amending its own constitution.
The principle of consent of the State being affected is paramount.
Republican proposals and State Constitutions
If the wider view of the emphasised words in section 128 is correct, section 128 could not be used to impose on a non-consenting State a new provision of the Commonwealth Constitution which, for instance, requires all State Governors to be appointed by someone other than the Queen (on the advice of the State Government) or prevents a State from remaining a constitutional monarchy.
It would at least be prudent to have such a provision approved by a majority in every State as well as meeting the other requirements of section 128.
Is fundamental change an "alteration"?
It is also arguable that such a fundamental change to the whole structure of the present constitutional system of government is not an "alteration" within the meaning of section 128. Quick and Garran, in the original legal commentary on the Commonwealth published in 1901, favoured the view that section 128 could apply to any change proposed to the text of the Constitution itself but the debate on this issue by eminent academic writers continues to the present.
If "alteration" means a variation in the provisions of the Constitution but not something which revamps a basic element of the whole structure, then another form of approval would be needed. This raises the same uncertainty which arises in the debate over how to change parts of the Constitution Act other than the Constitution itself, which is referred to below.
How to change the Preamble and the Constitution Act?
It is almost certain that any republican proposal will require changes to be made to the parts of the Constitution Act other than the Constitution itself; that is, there will need to be major changes to the Preamble to the Constitution Act and to sections 1-8 of the Constitution Act. Sections 1-8 of the Constitution Act are sometimes referred to in constitutional cases, reports and discussions as "the covering clauses" and are referred to by roman numerals. It is to distinguish them from the provisions of the Constitution itself which are called "sections" and referred to by the usual arabic numbers.
Significance of the Preamble to the Constitution
This usage does not, and should not, diminish the significance of the Preamble and the covering clauses:
"These clauses…lay the foundations for the very legal existence of the new Commonwealth. They are to be distinguished from the provisions of the Constitution proper, which are contained in s9, and which provide for the machinery of government."
(Dr Greg Craven, Secession: The Ultimate State Right (1986) pages 159-160)
In particular, the Preamble to the Constitution Act, which also is the Preamble to the Constitution itself, should be given greater significance in the Constitution and its interpretation than the preamble to ordinary legislation. The extent of significance has not been fully debated or authoritatively decided in the constitutional cases to date. However, the importance of the Preamble has been recognized by the pressure from republicans and some others to change the preamble to include, for instance, reference to the Aboriginal people: see, for example, the suggestions of the Individual and Democratic Rights Advisory Committee (with Thomas Kenneally as a member) in their 1987 report to the Labor Government’s Constitutional Commission (which reported in 1988).
There have been complaints that the present Preamble is not sufficiently stirring as a statement of how the Commonwealth of Australia came to be established as a nation and the fundamental principles of its foundation, unlike the preamble to the United States constitution.
Surely this criticism is met just by quoting the words themselves of the title to the
Constitution Act and the Preamble:
"An Act to constitute the Commonwealth of Australia.
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:".
There then follows provision for admission of other parts of Australia, under which Western Australia immediately joined.
The Preamble is stated in terms which are all the more challenging for their brevity. It has a similar tone and style to the preamble to the United States constitution, a document which was in the minds of the Australians who drafted our constitutional documents. It contains all the fundamental elements of what Australia has been and is: a Commonwealth (a society for promoting the common good) united by the agreement of thepeople in each founding State in an indissoluble federal structure which is a constitutional monarchy.
The Preamble accordingly highlights what is clear from the very structure and content of the rest of the Constitution Act and the Constitution itself: that the constitutional monarchy is as much a linchpin of the Australian constitutional structure as is federation:
"The Monarchy is the keystone of the system…the elimination of the Monarchy would remove the pivot upon which equilibrium [between centralism and regionalism] is established, and for that reason it cannot occur without far-reaching effects on the Federal structure."
(Professor Daniel O’Connell, "Monarchy or Republic?", in Geoffrey Dutton (ed), Republican Australia? (Melbourne, Sun Books, 1975) pages 23,25)
The fundamental nature of the constitutional monarchy, and the need to change both Constitution and other parts of the Constitution Act, adds strength to the argument that s128 of the Constitution alone cannot be used because more than a mere alteration is involved.
Section 128 cannot be used
Moreover, it is accepted by a preponderance of eminent constitutional writers, from Quick and Garran consistently down to the present, that section 128 alone cannot be used to change the Preamble and covering clauses simply because they are not part of "this Constitution", which is what section 128 applies to. The words "this Constitution" refer to the Commonwealth Constitution contained within section 9 of the Constitution Act.
Quick and Garran state:
"Clauses 1 to 8 of the Imperial Act (the Constitution Act] are not parts of the Constitution, and cannot be altered except by the Imperial Parliament." (page 989)
This statement was made at a time when the United Kingdom Parliament had power to make and change laws as they applied in Australia. It has already been described how the United Kingdom Parliament effectively gave up that power for the Commonwealth Government after the Statute of Westminster in 1931 and how the same position was extended to the States by the Australia Acts in 1986.
The Australia Acts confirm the distinction between the Constitution and the other parts of the Constitution Act:
In section 16(1) of the Australia Act 1986 (the legislation enacted by the Commonwealth Parliament as part of the Australia Acts package) "the Constitution of the Commonwealth" is defined to mean "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."
Section 16(1) also separately defines "the Commonwealth of Australia Constitution Act" to mean "the Act of the Parliament of the United Kingdom known as the Commonwealth of Australia Constitution Act."
Dr Greg Craven in his most recent writing re-stated his earlier views which are at one with Quick and Garran on this issue. He casts serious doubts on the suggestions by Professor Winterton and others on how to be able to amend the Preamble and covering clauses. He draws attention to how the United States and Indian constitutions, as examples, contain fundamental structural provisions which cannot be changed by any means recognized in the existing constitutional documents. See Craven, "The Constitutional Minefield of Australian Republicanism" (Spring 1992) Policy 33 at 34-35. In his earlier statement of the same view, Dr Craven cited the long pedigree of the leading constitutional writers who endorse the same conclusion: Craven, Secession: the Ultimate State Right (1986), Chapter 6, especially pages 160-167.
Section 51(xxxviii) as a source of power
There has been some support among constitutional writers for the view that section 51(xxxviii) of the Constitution could be used to change the Preamble and covering clauses. The scope of this provision has not been tested in court in this context and is uncertain.
Section 51(xxxviii) gives the Commonwealth Parliament power to make laws with respect to (as relevant) 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 could be exercised only by the United Kingdom Parliament at the time the Constitution was established (that is, 1 January 1901).
The United Kingdom Parliament did not, on 1 January 1901, have exclusive power to change the Constitution Act if that Act is looked at as a whole because, as has been seen, the Commonwealth Parliament could alter the Constitution contained in section 9 of that Act if it obtained the people’s approval in the prescribed manner (under section 128).
If the other parts of the Constitution Act are able to be looked at separately from the Constitution contained in section 9 of the Act, and the United Kingdom Parliament is assumed to have had exclusive power on 1 January 1901 to amend those other parts, then there is still uncertainty over what comes within a power to make laws with respect to "the exercise" of the United Kingdom Parliament powers in question. Does it mean that the Commonwealth Parliament itself can exercise the powers themselves? Or does it mean that the Commonwealth Parliament can legislate, in the same way that the United Kingdom Parliament could have done as at 1 January 1901, to confirm or grant the exercise by others (such as State Parliaments) of those powers: see Port MacDonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340 at 378; Zines, The High Court and the Constitution (3rd edition, 1992) pages 269-270.
One vital factor is clear. If the power was to be used to change the Preamble and covering clauses, it would require the unanimous request and consent of State Parliaments before the Commonwealth could exercise it.
The form of that request and consent is not entirely clear. However, since the Queen is part of the Parliamentary process it is almost certain that it should require legislation of the State Parliament in the usual manner. If the State Constitution or State law required further steps for approval of such a request and consent, such as a majority of the people at a referendum or a two-thirds majority in each House of the State Parliament, then there are decisions of the High Court in parallel situations which decide that such extra approvals would also have to be obtained and this is recognized in section 6 of the Australia Act.
The Australia Act
The pivotal role of the constitutional monarchy in State constitutions is also enshrined in the Australia Act. For example, section 7 states that the Governor exercises the powers and performs the functions of the Queen except when the Queen is personally present in the State and is the appointee and representative of the Queen. Sections 7(5) and 10 recognise that the Governor is appointed and acts on the advice of the State Government.
The Australia Act can only be repealed or amended by Commonwealth legislation which has been requested or consented to by all State Parliaments, unless the Commonwealth Parliament is given power, in a referendum under section 128 of the Constitution, to change the Australia Act without this safeguard: see section 15 of the Australia Act. Such a referendum would raise the argument canvassed earlier about the need for a majority in every State. No matter how narrowly framed, it would be likely to raise suspicions about future Commonwealth predation on the States by means of the new power.
Treading the Minefield?
As Craven points out:
"it is abundantly clear that the line espoused by some republicans – that there are no conceivable constitutional difficulties in the way of an Australian republic – is far from accurate."
("The Constitutional Minefield of Australian Republicanism", cited above, at page 36)
Is there a possible path through the minefield of difficulties so that any republican proposal can be tested on its merits (or otherwise)? The following is a possibility, but it is by no means certain and would still be open to challenge.
The High Court in recent cases has emphasised that the ultimate source of power in the Australian constitutional structure is the people:
"There are at least three main general doctrines of government which underlie the Constitution and are implemented by its provisions. One of them is the concept of a federal system…Another is the doctrine of a separation of legislative, executive and judicial powers… [The third doctrine is] the doctrine of representative government, that is to say, of government by representatives directly or indirectly elected or appointed by, and ultimately responsible to, the people of the Commonwealth. The rational basis of that doctrine is the thesis that all powers of government ultimately belong to, and are derived from, the governed…In implementing the doctrine of representative government, the Constitution reserves to the people of the Commonwealth the ultimate power of governmental control…The doctrine of responsible government embodied in the Cabinet or Westminster system can arguably be seen as a fourth main general doctrine underlying the Constitution as a whole. Alternatively, it can be seen as a system of government devised to permit observance of the doctrine of representative government in a constitutional monarchy in which executive powers are formally vested in a non-elected Soverreign."
(Nationwide News Pty Ltd v Wills [Industrial Relations Commission contempt powers case] (1992) 108 ALR 681 AT 722-723 (Justices Deane and Toohey))
"…section 128 recognises that the Constitution and, hence, the federal arrangements depend on the will of the people and may be altered by the people in accordance with the procedures there laid down."
(Political Advertising Case [Australian Capital Television Pty Ltd v The Commonwealth (No 2)] (1992) 108 ALR 577 at 608 (Justice Gaudron)).
There are statements to similar effect in earlier decisions of the High Court.
By its recent statements the Court has endorsed a theme in Quick and Garran’s work at the time the Constitution was established.
It has been noted earlier that the people’s agreement is recited in the Preamble as the fundamental reason that the Australian constitutional structure came into being.
It was the people’s agreement to unite in the "one indissoluble Federal Commonwealth under the Crown" which is the present constitutional structure.
Accordingly, if there is to be a fundamental change to one of the elements in what the people agreed to when Australia was founded as a nation, it should be the people who decide the issue in a way which respects the existing fundamental elements.
This means that there should be a majority of the voters in each and every State, as well as a majority throughout the Commonwealth, in favour of any republican proposal which is passed by the Commonwealth Parliament. To do otherwise would be less democratic than the original process of approval.
A majority of voters in every State as well as Australia-wide respects the other fundamental of the existing Constitutional structure: its federal nature.
Anything less (such as a simple majority in a nationwide referendum or "plebiscite" or the approval of a "people’s convention" chosen by some unspecified means) would be sure to provoke a challenge to the lesser method of approval, if not more drastic measures of dissent. In her 1993 Adler Lecture, Professor Jill Ker Conway drew attention to the sensitivity of dealing with deep-seated symbols.
In addition, because of the doubts surrounding the applicability of section 128 to all the changes which would be required, the Commonwealth Parliament should not rely on the provisions in section 128 (mentioned briefly before) which permit one House of the Parliament to be by-passed in the event of deadlock for three months. It would be safer if the approval of both Houses by absolute majority was obtained, or at least by simple majority as in ordinary legislation.
The referendum to see if there is a majority in every State as well as Australia-wide in favour of the republican proposals should not take place unless, in the period immediately before the Commonwealth Parliament considers the matter, every State Parliament has passed legislation to request and consent to the Commonwealth Parliament’s legislation containing the republican proposals which are to be put to the people. It has already been stated that such State "request and consent" legislation should be passed in accordance with whatever procedures are laid down in State law for constitutional change in addition to the usual ones for legislation.
The unanimous legislation of the State Parliaments would enable section 51(xxxviii) of the Constitution to be relied on, for whatever it is worth, as a source of power to change the parts of the Constitution Act outside the Constitution itself and also to change the Constitution itself to the extent that section 128 cannot apply because removal of a constitutional linchpin is not an "alteration" within its scope.
The unanimous State legislation is also required for the changes likely to be needed to the Australia Act to remove references to the Queen which have already been mentioned, unless one of the matters to be put in the referendum is to give the Commonwealth Parliament power to change the Australia Act (a matter sure to excite suspicion of Commonwealth predations on the States beyond the immediate issue).
The unanimous legislative consent of State Parliaments would put in place the remaining part of the fundamental mechanism for approval and legitimation in the present federal constitutional structure: consideration by Commonwealth and State Parliaments and popular majority in each State.
(Note: The views expressed here are those of the author and do not necessarily reflect the opinions of ACM and its Legal Committee.)