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110A State Governors |
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Proposed Constitution |
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(1) If the Constitution of a State vests a function in a foreign power, or a representative of a foreign power, or provides that the Governor of the State or any other person is subject to appointment, control or removal by such a foreign power or representative, that Constitution shall be read as if the function or the power of appointment, control or removal is vested in the Governor-General, and this section and the relevant sections of the State Constitution shall be treated as laws to which section 109 applies.
(2) This section prevails over section 106 to the extent of any inconsistency.
(3) Nothing in this Constitution implies that a State must have a Governor, and references to a State’s Governor in sections 7, 12, 15, 21 and 24 shall be taken as referring to any person authorised by the Constitution of a State to undertake the functions referred to in those sections.
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All Changes Displayed |
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(1) If the Constitution of a State vests a function in a foreign power, or a representative of a foreign power, or provides that the Governor of the State or any other person is subject to appointment, control or removal by such a foreign power or representative, that Constitution shall be read as if the function or the power of appointment, control or removal is vested in the Governor-General, and this section and the relevant sections of the State Constitution shall be treated as laws to which section 109 applies.
(2) This section prevails over section 106 to the extent of any inconsistency.
(3) Nothing in this Constitution implies that a State must have a Governor, and references to a State’s Governor in sections 7, 12, 15, 21 and 24 shall be taken as referring to any person authorised by the Constitution of a State to undertake the functions referred to in those sections. |
Drafting Notes |
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110A.1 This is a new section to replace s.110A. Currently each State has a Governor who is a representative of the Queen. The Advancing Democracy model aims to require States to change their Constitutions so that their Governors no longer represent the Queen. This aim will be achieved by inserting 110A and making it a provision which overrides State Constitutions pursuant to s.109.
110A.2 The proposed section uses the phrase “foreign power” rather than “the Queen”. “Foreign power” is drawn from s.44(i). It should be interpreted consistently with the approach taken to that section in Sue v Hill; Sharples v Hill [1999] HCA 30, where Gleeson CJ, Gummow & Hayne JJ at [48] and Gaudron J at [173] indicated that the phrase directs attention to issues of sovereignty, not the closeness or otherwise of Australia’s relationship with the other power. In that case the Court held the United Kingdom was a “foreign power”, so there is no doubt that the Queen will be one after the Advancing Democracy proposal removes her as our sovereign.
110A.3 The section extends beyond the appointments of Governments. It refers to functions being vested in a foreign power, such as royal assent to legislation, which is a feature of all State Constitutions. (The provisions are summarised in Appendix 5 to the Rationale for the model.)
110A.4 The mechanism chosen to enforce the removal of the monarchy from State Constitutions is:
▸ Firstly to treat functions or powers vested in the Queen under State Constitutions as if they were vested in the Governor-General; and
▸ Secondly to provide that s.110A overrides the relevant State provision in the same way that valid Commonwealth legislation overrides State legislation on the same subject.
Note that the penultimate paragraph to s.128 states that no change to a State Constitution may be made by a Commonwealth referendum unless a majority of the electors in that State approve of the change, so the mechanism only works for States which vote in favour of the Advancing Democracy model. For these States, s.110A allows the States to simultaneously change their State Constitution and the Commonwealth Constitution. See Chapter 11 of the Rationale for the implications of this proposal. The aim is to make the change with minimal intervention into the affairs of the State. Of course, the section has no effect if all States change their own Constitutions to avoid triggering the pre-condition for the section’s operation.
110A.5 Subsection 110A(3) will give States the flexibility to abolish Governors altogether without it affecting the operation of those sections of the Commonwealth Constitution which refer to Governors. |
Proposed Constitution |
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(1) If the Constitution of a State vests a function in a foreign power, or a representative of a foreign power, or provides that the Governor of the State or any other person is subject to appointment, control or removal by such a foreign power or representative, that Constitution shall be read as if the function or the power of appointment, control or removal is vested in the Governor-General, and this section and the relevant sections of the State Constitution shall be treated as laws to which section 109 applies.
(2) This section prevails over section 106 to the extent of any inconsistency.
(3) Nothing in this Constitution implies that a State must have a Governor, and references to a State’s Governor in sections 7, 12, 15, 21 and 24 shall be taken as referring to any person authorised by the Constitution of a State to undertake the functions referred to in those sections.
< Previous section Next section > |
All Changes Displayed |
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(1) If the Constitution of a State vests a function in a foreign power, or a representative of a foreign power, or provides that the Governor of the State or any other person is subject to appointment, control or removal by such a foreign power or representative, that Constitution shall be read as if the function or the power of appointment, control or removal is vested in the Governor-General, and this section and the relevant sections of the State Constitution shall be treated as laws to which section 109 applies.
(2) This section prevails over section 106 to the extent of any inconsistency.
(3) Nothing in this Constitution implies that a State must have a Governor, and references to a State’s Governor in sections 7, 12, 15, 21 and 24 shall be taken as referring to any person authorised by the Constitution of a State to undertake the functions referred to in those sections. |
Drafting Notes |
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110A.1 This is a new section to replace s.110A. Currently each State has a Governor who is a representative of the Queen. The Advancing Democracy model aims to require States to change their Constitutions so that their Governors no longer represent the Queen. This aim will be achieved by inserting 110A and making it a provision which overrides State Constitutions pursuant to s.109.
110A.2 The proposed section uses the phrase “foreign power” rather than “the Queen”. “Foreign power” is drawn from s.44(i). It should be interpreted consistently with the approach taken to that section in Sue v Hill; Sharples v Hill [1999] HCA 30, where Gleeson CJ, Gummow & Hayne JJ at [48] and Gaudron J at [173] indicated that the phrase directs attention to issues of sovereignty, not the closeness or otherwise of Australia’s relationship with the other power. In that case the Court held the United Kingdom was a “foreign power”, so there is no doubt that the Queen will be one after the Advancing Democracy proposal removes her as our sovereign.
110A.3 The section extends beyond the appointments of Governments. It refers to functions being vested in a foreign power, such as royal assent to legislation, which is a feature of all State Constitutions. (The provisions are summarised in Appendix 5 to the Rationale for the model.)
110A.4 The mechanism chosen to enforce the removal of the monarchy from State Constitutions is:
▸ Firstly to treat functions or powers vested in the Queen under State Constitutions as if they were vested in the Governor-General; and
▸ Secondly to provide that s.110A overrides the relevant State provision in the same way that valid Commonwealth legislation overrides State legislation on the same subject.
Note that the penultimate paragraph to s.128 states that no change to a State Constitution may be made by a Commonwealth referendum unless a majority of the electors in that State approve of the change, so the mechanism only works for States which vote in favour of the Advancing Democracy model. For these States, s.110A allows the States to simultaneously change their State Constitution and the Commonwealth Constitution. See Chapter 11 of the Rationale for the implications of this proposal. The aim is to make the change with minimal intervention into the affairs of the State. Of course, the section has no effect if all States change their own Constitutions to avoid triggering the pre-condition for the section’s operation.
110A.5 Subsection 110A(3) will give States the flexibility to abolish Governors altogether without it affecting the operation of those sections of the Commonwealth Constitution which refer to Governors. |
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