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Appendix 5 - The Position of the Crown under the State Constitutions |
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Appendix 5 - The Position of the Crown under the State Constitutions
Although some States may resist an attempt to remove the monarchy from their Constitutions, the experience of the 1999 referendum suggests otherwise. Prior to that referendum, all States and the Howard Government co-operated to reach an agreement which ensured that if the referendum was carried, all State Governments would take the necessary steps to propose amendments to their State Constitutions to bring them into line with the Commonwealth Constitution. An account of this appears in The Constitution of New South Wales by Anne Twomey, Federation Press, 2004, pp.763-769.
Below is a summary of the minimum changes required to remove the monarchy from the State Constitutions. Generally though the State Constitutions share the same defects as the Commonwealth Constitution, so it would be preferable for them all to be completely rewritten.
Referendums would be required in all States other than New South Wales and Tasmania.
Queensland
The Queensland Constitution is a mess spread across 4 different Acts of Parliament, despite partial consolidation and modernisation in 2001. Most provisions are contained in the Constitution of Queensland 2001, but important sections concerning the Crown and Parliament are found in the Constitution Act 1867.
Parliament consists of the Queen and the Legislative Assembly: Constitution Act 1867, s.2A(1). No law has any effect until assented to by the Governor in the Queen’s name: Constitution Act 1867, s.2A(2). The Governor is the Queen’s representative who holds office ‘during the Queen’s pleasure’: Constitution Act 1867, s.11A(1).
A referendum would be needed to remove the Queen from Parliament or to change the position of Governor: see Constitution Act 1867, ss.2A, 11A(2) & 53. The required procedure involves a Bill being passed by the Legislative Assembly then a referendum at least two months later at which a simple majority is required.
New South Wales
In New South Wales, the Legislature means “His Majesty the King with the advice and consent of the Legislative Council and Legislative Assembly”: Constitution Act 1902, s.3.
A Bill does not become an Act of the Legislature until the Governor or the Queen has assented to it: s.8A(1). The Governor is appointed “during her Majesty’s pleasure by commission under Her Majesty’s Sign Manual and Public Seal of State”: s.9A(2)
While some Constitutional changes require a referendum, Part 1 of the Constitution Act 1902, which includes the definition of the Legislature, s.8A in Part 2 (concerning royal assent) and Part 2A dealing with the Governor may be amended in the same way as ordinary legislation.
Victoria
In Victoria, Parliament consists of “Her Majesty, the Council, and the Assembly”: Constitution Act 1975, s.15. The requirement for royal assent to legislation is implied or referred to in multiple sections, including ss.14, 18(1B), 18(2), 26(1), 28(1), 44(d), 65, 65A, 65E, 65G, 69(7), 70 & 71.
Pursuant to s.18(2) of the Constitution Act 1975, both Part I dealing with the Crown and s.15 by which the Crown is part of Parliament may only be amended if passed by a “special majority” of both Houses of Parliament, namely 3/5ths of the whole number of members of both Houses: s.18(1A). Removing the assent provisions would require multiple amendments, some of which would require majority approval at a referendum: s.18(1B).
Tasmania
In Tasmania, the Governor is a part of Parliament: Constitution Act 1934, s.10. The Governor assents to legislation in the name of the Queen: s.17(1); and also to standing orders: s.17(2). The Constitution does not deal with the appointment of the Governor.
The parts of the Constitution Act of 1934 dealing with the Crown and assent to legislation may be amended in the same way as ordinary legislation. The Constitution contains no provisions for referendums and the only Constitutional amendments which require a special majority are those to extend the life of the House of Assembly: s.41A.
South Australia
In South Australia, the Queen is not part of Parliament. Section 4 of the Constitution Act 1934 states that Parliament comprises the Legislative Council and a House of Assembly. The Constitution does not expressly require Acts to have royal assent, but it is implied in ss.8, 10A, 56, 64 and 88(4). The Constitution Act 1934 contains no provision stipulating how the Governor is to be appointed and only indicates who the Governor represents by implication.
While provisions concerning the Governor may be amended in the same way as ordinary legislation, section 8 referring to royal assent to legislation could only be amended by a referendum: see ss.8 & 10A.
Western Australia
In Western Australia the Parliament consists of the Queen and the Legislative Council and the Legislative Assembly: Constitution Act 1899, s.2(2). Royal assent is required for bills to become law: s.2(3). The Governor is the Queen’s representative and holds office at her pleasure: s.50(1).
Removal of the Queen from Parliament and the abolition of or alteration to the Governor’s position would require an absolute majority of the whole number of members of the Legislative Council and the Legislative Assembly, plus a majority of electors at a referendum: Constitution Act 1889, s.73(2). |
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Appendix 5 - The Position of the Crown under the State Constitutions
Although some States may resist an attempt to remove the monarchy from their Constitutions, the experience of the 1999 referendum suggests otherwise. Prior to that referendum, all States and the Howard Government co-operated to reach an agreement which ensured that if the referendum was carried, all State Governments would take the necessary steps to propose amendments to their State Constitutions to bring them into line with the Commonwealth Constitution. An account of this appears in The Constitution of New South Wales by Anne Twomey, Federation Press, 2004, pp.763-769.
Below is a summary of the minimum changes required to remove the monarchy from the State Constitutions. Generally though the State Constitutions share the same defects as the Commonwealth Constitution, so it would be preferable for them all to be completely rewritten.
Referendums would be required in all States other than New South Wales and Tasmania.
Queensland
The Queensland Constitution is a mess spread across 4 different Acts of Parliament, despite partial consolidation and modernisation in 2001. Most provisions are contained in the Constitution of Queensland 2001, but important sections concerning the Crown and Parliament are found in the Constitution Act 1867.
Parliament consists of the Queen and the Legislative Assembly: Constitution Act 1867, s.2A(1). No law has any effect until assented to by the Governor in the Queen’s name: Constitution Act 1867, s.2A(2). The Governor is the Queen’s representative who holds office ‘during the Queen’s pleasure’: Constitution Act 1867, s.11A(1).
A referendum would be needed to remove the Queen from Parliament or to change the position of Governor: see Constitution Act 1867, ss.2A, 11A(2) & 53. The required procedure involves a Bill being passed by the Legislative Assembly then a referendum at least two months later at which a simple majority is required.
New South Wales
In New South Wales, the Legislature means “His Majesty the King with the advice and consent of the Legislative Council and Legislative Assembly”: Constitution Act 1902, s.3.
A Bill does not become an Act of the Legislature until the Governor or the Queen has assented to it: s.8A(1). The Governor is appointed “during her Majesty’s pleasure by commission under Her Majesty’s Sign Manual and Public Seal of State”: s.9A(2)
While some Constitutional changes require a referendum, Part 1 of the Constitution Act 1902, which includes the definition of the Legislature, s.8A in Part 2 (concerning royal assent) and Part 2A dealing with the Governor may be amended in the same way as ordinary legislation.
Victoria
In Victoria, Parliament consists of “Her Majesty, the Council, and the Assembly”: Constitution Act 1975, s.15. The requirement for royal assent to legislation is implied or referred to in multiple sections, including ss.14, 18(1B), 18(2), 26(1), 28(1), 44(d), 65, 65A, 65E, 65G, 69(7), 70 & 71.
Pursuant to s.18(2) of the Constitution Act 1975, both Part I dealing with the Crown and s.15 by which the Crown is part of Parliament may only be amended if passed by a “special majority” of both Houses of Parliament, namely 3/5ths of the whole number of members of both Houses: s.18(1A). Removing the assent provisions would require multiple amendments, some of which would require majority approval at a referendum: s.18(1B).
Tasmania
In Tasmania, the Governor is a part of Parliament: Constitution Act 1934, s.10. The Governor assents to legislation in the name of the Queen: s.17(1); and also to standing orders: s.17(2). The Constitution does not deal with the appointment of the Governor.
The parts of the Constitution Act of 1934 dealing with the Crown and assent to legislation may be amended in the same way as ordinary legislation. The Constitution contains no provisions for referendums and the only Constitutional amendments which require a special majority are those to extend the life of the House of Assembly: s.41A.
South Australia
In South Australia, the Queen is not part of Parliament. Section 4 of the Constitution Act 1934 states that Parliament comprises the Legislative Council and a House of Assembly. The Constitution does not expressly require Acts to have royal assent, but it is implied in ss.8, 10A, 56, 64 and 88(4). The Constitution Act 1934 contains no provision stipulating how the Governor is to be appointed and only indicates who the Governor represents by implication.
While provisions concerning the Governor may be amended in the same way as ordinary legislation, section 8 referring to royal assent to legislation could only be amended by a referendum: see ss.8 & 10A.
Western Australia
In Western Australia the Parliament consists of the Queen and the Legislative Council and the Legislative Assembly: Constitution Act 1899, s.2(2). Royal assent is required for bills to become law: s.2(3). The Governor is the Queen’s representative and holds office at her pleasure: s.50(1).
Removal of the Queen from Parliament and the abolition of or alteration to the Governor’s position would require an absolute majority of the whole number of members of the Legislative Council and the Legislative Assembly, plus a majority of electors at a referendum: Constitution Act 1889, s.73(2). |
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