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Chapter 11 - Severing the Connection Between the States and the Monarchy |
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Chapter 11 - Severing the Connection Between the States and the Monarchy
Each State has its own Constitution, separate from that of the Commonwealth. The State Constitutions provide for State Governors who represent the Queen and perform similar functions for the State as the Governor-General does for the Commonwealth. The Queen is a part of some, but not all, State Parliaments. See Appendix 5.
At present, the Commonwealth Constitution states in s.106
“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.” (Emphasis added)
Although it would be possible to amend s.106 by a referendum, the amendment would not take effect except in States which carried the referendum, because s.128 provides (in part):
“No alteration diminishing the proportionate representation of any State in either House of the 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)
While s.128 means that no State’s Constitution can be changed by a Commonwealth referendum against its will, it also confirms that a State’s Constitution can be “affected” through a Commonwealth referendum. It is therefore possible for voters to simultaneously end the connection to the Crown at a State and Commonwealth level in the one referendum. This is what the Advancing Democracy model proposes be done.
At the time of Federation all the States agreed that one consequence of uniting to form one Commonwealth should be that their own laws be overridden from time to time by Commonwealth law, if the two laws were inconsistent. This is set out in section 109 of the Commonwealth Constitution, which states:
“109 Inconsistency of laws
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.”
The Advancing Democracy proposal takes the concept of inconsistency one step further by applying it not just to State laws made under the State Constitutions, but to the position of the Crown within the State Constitutions. If the Commonwealth Constitution is amended to remove the monarchy, it would be inconsistent for it to be retained in the Constitutions of some States. The position of the Commonwealth must prevail.
This result will be achieved by replacing the current section 110 (an inconsequential provision which refers to State Governors) with an entirely new provision, as follows:
“110A State Governors
(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.”
The practical effect would be that if the Commonwealth referendum was passed, the Constitutions of all States whose voters supported the referendum would be amended so that powers formerly held by the Crown would instead be vested in the Governor-General, who would no longer represent the Crown. To avoid having to deal with Canberra on matters usually dealt with in the State capital, each State would simply change its own Constitution to abolish the monarchy.
The political advantage of this approach is that it removes the opportunity for State Governments and State Parliaments which oppose the Advancing Democracy model to interfere in the process. Normally State Constitutions cannot be changed except by action which either State Governments or State Parliaments must initiate. The Advancing Democracy model makes it possible for a State’s voters to take the initiative and dictate to their State Governments and Parliaments what should happen.
The legal effect on the State Constitutions would be quite limited. The Advancing Democracy model aims to make multiple, fundamental changes to the Commonwealth Constitution. But as far as the States are concerned, it would simply remove the monarchy, leaving all the other features of the State Constitutions intact. It would be up to each State to consider whether it wished to replicate at a State level the full effect of the changes being made at the national level.
It would be better if the Commonwealth and the States all changed their Constitutions on the same day. This can be achieved by delaying the introduction of the changes until 18 months or so after the date of the referendum. The proposal is for the referendum to be held well before the changes come into effect on 25th April 2015 - the 100th Anzac Day.
From the Commonwealth’s point of view, a delayed start makes sense. There are thousands of references to the Queen or royalty in legislation and official documents. It will take some time to change them, and there is no point passing the amending legislation in advance of the referendum, as the proposal may fail.
From States’ point of view, they would naturally want to await the outcome of the Commonwealth referendum before initiating changes to their own Constitutions. Those amendments could then be effected within the period between the vote and the date on which the changes become operative.
It remains possible that the referendum would be passed by 4 of the 6 States, with the voters in 2 States opposed to the change, and still linked to the monarchy in their Constitutions. This would not matter. Sooner or later those States would fall into line; probably sooner as the Queen would object to the absurdity of such an arrangement.
Go to next chapter |
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Chapter 11 - Severing the Connection Between the States and the Monarchy
Each State has its own Constitution, separate from that of the Commonwealth. The State Constitutions provide for State Governors who represent the Queen and perform similar functions for the State as the Governor-General does for the Commonwealth. The Queen is a part of some, but not all, State Parliaments. See Appendix 5.
At present, the Commonwealth Constitution states in s.106
“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.” (Emphasis added)
Although it would be possible to amend s.106 by a referendum, the amendment would not take effect except in States which carried the referendum, because s.128 provides (in part):
“No alteration diminishing the proportionate representation of any State in either House of the 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)
While s.128 means that no State’s Constitution can be changed by a Commonwealth referendum against its will, it also confirms that a State’s Constitution can be “affected” through a Commonwealth referendum. It is therefore possible for voters to simultaneously end the connection to the Crown at a State and Commonwealth level in the one referendum. This is what the Advancing Democracy model proposes be done.
At the time of Federation all the States agreed that one consequence of uniting to form one Commonwealth should be that their own laws be overridden from time to time by Commonwealth law, if the two laws were inconsistent. This is set out in section 109 of the Commonwealth Constitution, which states:
“109 Inconsistency of laws
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.”
The Advancing Democracy proposal takes the concept of inconsistency one step further by applying it not just to State laws made under the State Constitutions, but to the position of the Crown within the State Constitutions. If the Commonwealth Constitution is amended to remove the monarchy, it would be inconsistent for it to be retained in the Constitutions of some States. The position of the Commonwealth must prevail.
This result will be achieved by replacing the current section 110 (an inconsequential provision which refers to State Governors) with an entirely new provision, as follows:
“110A State Governors
(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.”
The practical effect would be that if the Commonwealth referendum was passed, the Constitutions of all States whose voters supported the referendum would be amended so that powers formerly held by the Crown would instead be vested in the Governor-General, who would no longer represent the Crown. To avoid having to deal with Canberra on matters usually dealt with in the State capital, each State would simply change its own Constitution to abolish the monarchy.
The political advantage of this approach is that it removes the opportunity for State Governments and State Parliaments which oppose the Advancing Democracy model to interfere in the process. Normally State Constitutions cannot be changed except by action which either State Governments or State Parliaments must initiate. The Advancing Democracy model makes it possible for a State’s voters to take the initiative and dictate to their State Governments and Parliaments what should happen.
The legal effect on the State Constitutions would be quite limited. The Advancing Democracy model aims to make multiple, fundamental changes to the Commonwealth Constitution. But as far as the States are concerned, it would simply remove the monarchy, leaving all the other features of the State Constitutions intact. It would be up to each State to consider whether it wished to replicate at a State level the full effect of the changes being made at the national level.
It would be better if the Commonwealth and the States all changed their Constitutions on the same day. This can be achieved by delaying the introduction of the changes until 18 months or so after the date of the referendum. The proposal is for the referendum to be held well before the changes come into effect on 25th April 2015 - the 100th Anzac Day.
From the Commonwealth’s point of view, a delayed start makes sense. There are thousands of references to the Queen or royalty in legislation and official documents. It will take some time to change them, and there is no point passing the amending legislation in advance of the referendum, as the proposal may fail.
From States’ point of view, they would naturally want to await the outcome of the Commonwealth referendum before initiating changes to their own Constitutions. Those amendments could then be effected within the period between the vote and the date on which the changes become operative.
It remains possible that the referendum would be passed by 4 of the 6 States, with the voters in 2 States opposed to the change, and still linked to the monarchy in their Constitutions. This would not matter. Sooner or later those States would fall into line; probably sooner as the Queen would object to the absurdity of such an arrangement.
Go to next chapter |
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