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Reflecting the Reality
Victorian Afterglow
When the Australian Constitution was framed in 1901, Great Britain still had an Empire on which the sun never set. Queen Victoria was Queen-Empress of India, and Indian independence was fifty years into the future. The Boer War had just finished and the Union of South Africa was ten years away. Pink-coloured colonies covered half the land on the world map. The Australian Constitution reflects those times. It is time we brought it up to date with the present.
The changes suggested in the Second Reform Referendum should receive near-unanimous consent from the Australian people, and could receive support from all significant political parties. However, the ground is slightly more tricky than in the First Reform Referendum, since we assert the independence of the Australian nation without trespassing into republican territory. Some will want to assure themselves that I have not crossed that boundary.
There are three matters to deal with in this Second Reform Referendum:
   tidying up the Constitution so that it reflects the reality of the relation with the Queen, the Governor-General and the Australian people;
   deleting a few other provisions that have never been used and should never be; and
   making the Constitution an Australian document.
The Queen and the Governor-General
The Queen (Queen Victoria is the one referred to, not Queen Elizabeth II) is mentioned in 19 Sections of the Constitution that I hope will have been pared down by the First Reform Referendum. Except when I am quoting the Constitution, in this Part I shall refer to the Monarch to make the point that the references are to the King or Queen of the time, according to the British law of succession. The Governor-General appears in 33 Sections. Recall that in Constitution-speak, a Section is a numbered clause.
This situation is graphically presented in the following diagram, similar to the one presented in Part 2. Sections that never existed, deleted by previous referendums, or deleted if the First Reform Referendum succeeds, are shown in black. Yellow boxes indicate a reference to the Governor-General, while the red letter Q indicates a reference to the `Queen', `Royal', `Her Majesty' or the `Crown'. Thirteen Sections contain both kinds of references, giving a total of 39 monarchically-flavoured sections (35% of the remaining 112). The Prime Minister is mentioned nowhere in the Constitution.
Many of these references are relatively innocuous and do not require amendment. Let me give three examples. Section 7 refers to State Governors certifying the names of senators for their State to the Governor-General. Section 32 refers to the issuing of writs for a general election of Members for the House of Representatives by the Governor-General in consultation with the Federal Council. Senators and MHRs may resign by writing to the President of the Senate or the Speaker respectively, but if the positions are vacant the Governor-General is given as the fall-back option (Sections 19 and 37).
But there are grounds for serious concern in other sections. Indeed anyone reading our Constitution without actual knowledge of Australian politics could be excused from thinking that the Governor-General ran the country, subject to oversight from the United Kingdom. The position was designed in the era of Empire so that Queen Victoria (and through her the British Parliament) could protect their interests through their representative, the Governor-General. Over the intervening 99 years custom and convention have changed this so that such intervention would be unthinkable, but several provisions linger on in our Constitution. Even though the present Monarch, Queen Elizabeth II, has publicly stated that she will never use the obsolete powers, the High Court might have some difficulty with a future Monarch or Governor-General who re-activated one of the out-of-date provisions.
Section by Section
There does not seem to any alternative but to go through the sections that need revision. This is needed particularly since convinced monarchists will want to be assured that in claiming the Constitution as our own in this Second Reform, Australia remains a constitutional monarchy.
Sections 1 and 2
Right at the beginning, Sections 1 & 2 start off badly:
  `1    Legislative power
The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called “The Parliament” or “The Parliament of the Commonwealth.”.'
  `2    Governor-General
A Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.'
The reality is that the present legislative power of the Commonwealth is vested in the Governor-General, a Senate, and a House of Representatives. Queen Elizabeth II plays no role in our legislation and everyone hopes that a future Monarch will do exactly the same. We also think of the Governor-General as our representative, not the Monarch's. And we hardly think any of the powers and functions he or she may exercise are at the Monarch's pleasure! Sections 1 & 2 obviously deserve reworking. Section 1 simply requires replacing of `Queen' by Governor-General, while Section 2 requires rewording to remove the references giving the Monarch power to over-ride the Governor-General. To keep this commentary to a reasonable length, please read my Constitution (Second Revision) for details of the suggested wording, both here and for later suggested amendments.
Section 4
Section 4 allows the Monarch to appoint someone other than a Governor-General to administer Australia. This is another of those Victorian provisions that make sure the colonies were able to be kept under control. It should go.
Section 57
With Section 57 we come to the first of the relatively minor changes that are symbolically desirable in the spirit of an independent Australia. Section 57 deals with disagreements between the Senate and the House of Representatives. The last sentence describes what might happen after a joint sitting of both houses following a double dissolution, and states the proposed law may be `presented to the Governor-General for the Queen's assent'. Assent is the legal process which transforms a proposed law into an actual law; it appears in the Constitution as the `Queen's assent' or the `Royal assent'.
In modern Australia, the popular belief would be either that assent is given by the Governor-General as effective Australian Head of State, or that assent is given on behalf of the people of Australia. Wording either belief into the Constitution is clumsy and may be subject to argument; the easiest way out is simply to delete two words so that the sentence ends `presented to the Governor-General for assent'.  This general issue recurs in Sections 58, 61, 64, and 68.
Sections 58, 59 and 60
Section 58 has the heading `Royal assent to Bills'. Both here and in the text the minor deletion mentioned in the discussion of Section 57 needs to be made.
But these three sections need much more major surgery. They provide for the Governor-General to refer a proposed law to the Monarch, and they provide for the Monarch to disallow a law, even if the Governor-General has assented to it. The text makes distinctions between the Governor-General's assent (acting on behalf of the Monarch) and the Monarch's actual assent. Here is the exact text of the present Constitution:
  `58    Royal assent to Bills.
When a proposed law passed by both Houses of the Parliament is presented to the Governor-General for the Queen's assent, he shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen's name, or that he withholds assent, or that he reserves the law for the Queen's pleasure.
  Recommendations by Governor-General
The Governor-General may return to the house in which it originated any proposed law so presented to him, and may transmit therewith any amendments which he may recommend, and the Houses may deal with the recommendation.'
  `59    Disallowance by the Queen
The Queen may disallow any law within one year from the Governor-General's assent, and such disallowance on being made known by the Governor-General by speech or message to each of the Houses of the Parliament, or by Proclamation, shall annul the law from the day when the disallowance is so made known.'
  `60    Signification of Queen's pleasure on Bills reserved
A proposed law reserved for the Queen's pleasure shall not have any force unless and until within two years from the day on which it was presented to the Governor-General for the Queen's assent the Governor-General makes known, by speech or message to each of the Houses of the Parliament, or by Proclamation, that it has received the Queen's assent.'
It is extraordinary to have such provisions in our Constitution, even if they are gathering dust from disuse. There would be uproar in Australia if the Governor-General reserved a proposed law for the Monarch's pleasure, unless perhaps it was an amendment to the Constitution to make Australia a Republic and the reservation was seen as a courtesy. We would think that fair and would be in no doubt about the outcome. Should any matter proceed to the point that a future Monarch disallowed a law, there would be major demonstrations around the nation and a referendum quick smart.
Sections 59 and 60 deserve to be deleted at the beginning of the second century of Federation, and Section 58 rewritten, perhaps as follows:
`58    Assent to Bills.
When a proposed law passed by both Houses of the Parliament is presented to the Governor-General for assent, the Governor-General shall, according to the Governor-General's discretion but subject to this Constitution, assent to the law or withhold assent.
Recommendations by Governor-General
The Governor-General may return to the house in which it originated any proposed law so presented, and may transmit therewith any amendments which the Governor-General may recommend, and the Houses may deal with the recommendation.'
Sections 61, 64, and 68
These require more of those minor `source of authority' redrafts first discussed in respect of Section 57.
Sections 73, 101, 102 , 103 and 104
These sections do not contain regal references, but deal with the Inter-State Commission. They are discussed later, under a special heading.
Section 117
This section provides that an individual State may not discriminate against `a subject of the Queen'. In our present context, this should be amended to `an Australian citizen', and provision made that the rights of subjects of the Monarch at the time the Constitution is amended will be preserved. While we are about it, the reference to the States should be expanded to include the Territories.
Section 122
This section allows the Parliament to legislate for any territory placed under its jurisdiction. It is now somewhat redundant to make a special provision for the Monarch to give new territory to the Commonwealth, and anyway there is a catch-all clause `or otherwise acquired by the Commonwealth' to cover anything unforeseen. Another minor tidying-up amendment.
Section 126
Section 126 allows the Monarch to authorise the Governor-General to appoint deputies, subject to `any limitations expressed or directions given'. A simple redraft gives the power to appoint a deputy directly to the Governor-General without regal restraint.
Section 128
The last of those minor `source of authority' redrafts first discussed with Section 57, in the Section that deals with amending the Constitution.
Being proudly Australian
Many of the references to the Queen in the Constitution are really throw-away lines deriving from the assumptions prevalent in 1901. Our Federal Ministers are referred to as the `Queen's Ministers of State'. The Governor-General's approval of laws is referred to as the `Royal assent'. It is not difficult to remove these references and assert the Australian identity and independent status we now widely believe we have. The `Queen's Ministers of State' can simply become `Ministers of State'; the `Royal assent' can become the `assent'.
In the spirit of an independent nation, it is hard to see why these references from the Victorian era should not be removed from the Constitution, quite independently of whether Australia remains a constitutional monarchy or becomes a republic at some time in the future.
The Inter-State Commission
There remains one significant part of the Constitution that has nothing to do with the Monarch, yet should be deleted in its entirety. It has never been used, even if the Constitution makes it plain that it was the result of careful negotiation. I refer to the Inter-State Commission and Sections 101-104, with a reference in Section 73 (Appellate jurisdiction of High Court).
Section 101 specifies that `There shall be an Inter-State Commission' and states its role in trade and commerce and all related laws; Section 102 gives the Inter-State Commission over-riding right to determine whether States are competing unfairly, Section 103 sets out how the members of the Commission are to be appointed, and Section 104 deals with some constraints on railway carriage rates.
The Federation Fathers envisaged the Inter-State Commission to be a quasi-judicial body that would adjudicate between States on matters of trade and commerce. It would have the power to over-ride the Commonwealth Parliament by making judgments about whether a State law was `undue or unreasonable, or unjust to any State' (Section 102).
No commissioners were ever appointed, not very surprisingly, since Ministers of the Commonwealth Government would have had to appoint them. The Commission has never met. If we needed any such provisions today we would expect Parliament to provide them. Were the Inter-State Commission to be activated, it would throw the whole of the Commonwealth activity in trade and commerce into confusion, including industrial matters, consumer protection, competition policy, transport, the sale of Telstra, and probably even further afield. The four clauses and the reference in Section 73 should simply be deleted. The Inter-State Commission was an idea that is 100 years past its use-by date. It has gone rancid and should be thrown out.
Re-enacting the Constitution
The Australian Constitution is part of an Act of the British Parliament, as amended by successive Australian referendums. It would be a nice symbolic action to take charge of our own Constitution by re-enacting it as an Act of the Australian Parliament. This could be done by another question put at the Second Reform Referendum. Although a bit untidy, it might be best if this were the first question on the ballot paper, and dealt with first in a legal sense. This would ensure that the Constitution that we were asked to pass into Australian law was unambiguous and the effect of the question did not depend on any other Second Reform question passing.
Clearly, the exact manner of doing this will require the constitutional lawyers to stitch it up properly, but it seems to me that there are only three things needed. The Referendum needs to amend the original Constitution by making it void or ineffective, and simultaneously re-enact it as a law of the Parliament of Australia. In addition Section 128 should be slightly amended so as to make it clear that repeal of the Constitution of Australia Act is subject to exactly the same rules as amending it. In other words, it needs a referendum to repeal it.
I expect some lawyers may advise me that we have to get the British Parliament to repeal the Constitution since they passed it in the first place. That sounds like a load of colonial rubbish to me. However, they can if they want. We were given the Constitution; we can deal with it ourselves as we have been doing since 1901.
The questions
Just as in the First Reform Referendum, the Australian people should set the referendum question they want to be asked. And again, the lawyers and politicians should wrap up the intentions into the Bills that implement these intentions. Here are my recommendations for the two questions to be put at the Second Reform Referendum:
1    Do you approve the re-enactment of the Constitution as an Act of the Parliament of Australia instead of an Act of the Parliament of the United Kingdom?
2    Do you approve the amendment of the Constitution to remove provisions relating to the Queen, the Governor-General and the Inter-State Commission which are no longer relevant?
Where have we got to?
Let me suppose that the First and Second Reform Referendums both pass. Where will we have achieved for this effort? Well, one of the things we will have done is to tidy up our Constitution to remove most if not all of the rubbish that helps make it impenetrable reading for the normal Australian. It is still a legal document, but we won't need to apologise for it or interpret it at almost every paragraph.
This effect of the Second Reform Referendum is shown in the diagram, whose format by now might be becoming familiar. The outcome of both Referendums will have been to reduce the size of the Constitution by 26 sections (-20%) and 3017 words (-26%).
Whatever the outcome of the Third Republican Referendum, we will still have a better Constitution.
We will also have amended the Constitution in such a way that although we retain the links with the Queen and her successors (I have deferred the republican question), we have implicitly established the Governor-General as the Head of State of the Commonwealth of Australia.  We will have gained a guaranteed Australian Head of State. This may be disappointing to some republicans who used this target as a slogan in the 1999 Referendum, since it will not be available following the passage of the Second Reform Referendum.
Finally, we will have made progress towards an updated Australian Constitution in two more ways. The people of Australia will themselves have been able to amend their Constitution in two successful referendums, thereby ensuring that a third referendum on an Australian Republic will be judged on its merits. In addition, the examination of the Constitution will have helped the majority of Australians understand how their Constitution works so they can better evaluate the various republican proposals and the monarchist arguments for the current arrangement. Neither are disguised aims, nor are they biased. Even convinced constitutional monarchists and republicans committed to a particular model should find it difficult to rationalize opposition to them. Better knowledge and empowerment are generally recognized by everyone as good things.
In the next Part, I assume optimistically that the first two Reform Referendums have passed, and turn to the shape of an Australian Republic appropriate for this country and this century.
© Copyright  2000  AHJ Sale
Page last modified on 2001 July 5