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ACTING SOLICITOR-GENERALS'S ADVICE

ESTABLISHMENT OF A REPUBLIC OPINION

APPENDIX 8

to the Republican Advisory Committee Report  

ACTING SOLICITOR-GENERAL'S ADVICE 

ESTABLISHMENT OF A REPUBLIC

OPINION
by
DENNIS ROSE QC
29 June 1993

I have been asked to advise on the questions set out below
concerning the constitutional aspects of
converting Australia to a republic.


LIST OF QUESTIONS

Question l (a)

Does section 128 of the Constitution extend to the severing of the Commonwealth's links with the monarchy and the establishment of a republican form of government for the Commonwealth?

Question l (b)

Is it necessary to amend the covering clauses?

Question l (c)

Can section 128 be used to repeal or amend the preamble and covering clauses?

Question 2

Even if an amendment to the covering clauses is not necessary in order to bring about a republic, could section 128 be used e.g. to:

(a) remove obsolete provisions from covering clauses;

(b) insert, in the preamble, recitals of

(i) independence;

(ii) responsible government; and

(iii) recognition of a prior Aboriginal presence;

(c) delete the enacting words and covering clauses entirely (or as far as possible).

Question 3

Is it constitutionally possible for a State to retain its links with the monarchy if Australia becomes a republic?

Question 4

Is it possible for a State's links with the monarchy to be severed -

(a) by the State itself amending its Constitution;

(b) by an amendment to the Commonwealth Constitution under section 128, with or without either the consent of the State legislature or a majority vote for the proposal by the people of the State;

(c) by any other method - e.g.. by the Commonwealth Parliament under section 51(xxxviii) or a combination of methods?

Question 5

(a) Would it be possible to apply existing conventions relating to the exercise of the powers of the Governor-General to the exercise of powers by a republican head of state by reference to the position of the Governor-General?

(b) Could that be achieved without 'freezing' the conventions at the time of the amendments?

Question 6

Could prerogative powers currently exercised by the Governor-General and the State Governors be vested in a republican Head of State and/or his or her State equivalents, and if so, how?

Question 7

What provisions would be necessary to deal with Crown immunities and the position of the Crown in the system of land tenure?
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Question l (a):

Does section 128 of the Constitution extend to the severing of the Commonwealth's links with the monarchy and the establishment of a republican form of government for the Commonwealth?

1. In my opinion the answer is clearly 'Yes'.

2. It might be argued that an obstacle is created by the reference in the preamble of the Commonwealth of Australia Constitution Act 1900 ('the Constitution Act') to the historical fact of the agreement of 'the people' before 1900 to unite 'under the Crown of the United Kingdom of Great Britain and Ireland' However, in my opinion, that argument is misconceived. That Crown no longer exists, and Australia ceased long ago to be under the 'Crown of the 'United Kingdom of Great Britain and Northern Ireland.' I see no reason why the Constitution cannot be altered so that Australia ceases to be under a 'Queen (or King) of Australia.' The High Court is not at all likely, in my opinion, to hold - whether on the basis of the preamble or otherwise - that the monarchy cannot be removed, and a republic established, under section 128 of the Constitution.

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Question l (b):

Is it necessary to amend the covering clauses?

3. The 'covering clauses' are clauses 1-8 and the introductory words in clause 9. After conversion of Australia to a republic, some of those provisions would have no further application, but that would not compel repeal, though it might be considered desirable to remove the 'dead wood'. Changes to some other provisions would be desirable, if not essential, for different reasons. To the extent that some provisions were still relevant, they could be transferred to the Constitution itself. I deal below with the various provisions.

4. Clause 1 merely provides for the Act to be cited as the 'Commonwealth of Australia Constitution Act' (usually called the 'short title'). A method of citation is useful. If it were to be retained, it would be a question of policy whether the present short title should be changed.

5. Clause 2 merely provides for the application of references in the Act (including the Constitution) to 'the Queen', and would be redundant after the establishment of a republic. Definitional provisions concerning references in the altered Constitution to the new Head of State could (and should) be included in the Constitution itself.

6. Clauses 3 and 4 are now spent.

7. Clause 5, except in relation to 'British ships', could continue to apply, but its provisions would be more appropriately included in the Constitution itself. The reference to 'British ships' is unclear and inappropriate (Constitutional Commission, Final Report, 1988, paragraphs 3.54-3.60). It would be desirable either to amend it so that it refers only to ships registered in Australia or, alternatively, to omit it and leave the application of Commonwealth laws on ships outside Australian territorial jurisdiction to be dealt with by Commonwealth legislation (e.g.. in the Acts Interpretation Act 1901 or the Navigation Act 1912).

8. Clause 6 could remain unamended, or could be amended to remove the reference to New Zealand if that reference is thought to be no longer relevant, or amended to remove the reference to 'the northern territory of South Australia' which no longer has any application.

9. Clause 7 no longer has any application except, it seems, to the Federal Council of Australasia's Australasian Orders in Lunacy Act 1891 which might no longer have any practical effect (Constitutional Commission, Final Report, para 3.65) and which, as clause 7 provides, can be repealed by the Commonwealth Parliament.

10. Clause 8 concerning the Colonial Boundaries Act 1895 (Imp.) is a 'dead letter' as a matter of constitutional practice, if not also as a matter of law (cf. Constitutional Commission, Final Report, para 3.86). No corresponding provision would be needed under a republican Constitution - i.e.. enabling the new Head of State, with the appropriate advice, to alter the boundaries of Australia (but not of a State) - since there would be adequate power for this purpose under section 61 of the Constitution (executive power) and section 51(xxix) (the external affairs power). I note that the existing section 123 empowers the Commonwealth Parliament to alter the boundaries of a State, but only with the consent of the State Parliament and approval by a majority of the State's electors.

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Question l (c):

Can section 128 be used to repeal or amend the preamble and covering clauses?

11. In my opinion, the answer is 'Yes' - by altering the Constitution under section 128 to confer power on the Commonwealth Parliament (a) to repeal section 8 of the Statute of Westminster to the extent necessary, and (b) to repeal or amend the preamble and covering clauses.

12. The Constitutional Commission wrote that the 'orthodox' view has been that the power of the Commonwealth Parliament under section 128 of the Constitution, which enables the 'Constitution' to be altered, does not extend to repealing or amending the preamble or covering clauses in the Constitution Act (Constitutional Commission, Final Report, paragraph 3.103). The argument for that view is that the preamble and covering clauses are not themselves part of 'the constitution' within the meaning of section 128 - 'the Constitution' being (so it is argued) the text set out in clause 9 after the introductory words: 'The Constitution of the Commonwealth shall be as follows:-'.

13. Objections to that 'orthodox' view have been stated by eminent authors (see George Winterton, Monarchy to Republic (OUP, 1986), pp.124-125). In my view, there is much to be said for those objections, at least in so far as they concern the meaning of provisions in the Constitution itself - see clauses 2 and 6 - or the effect of laws made by the Parliament under the Constitution - see clause 5. If there were no other available course, the High Court could probably be expected to agree that section 128 extends to a Commonwealth Bill, approved at a referendum, directly repealing or amending the preamble or covering clauses or both.

14. However, in my opinion, there is another - and clearer - solution available under section 128 itself: the constitutional alteration could insert in the Constitution a power for the Commonwealth Parliament to repeal or amend the preamble and all or any of the covering clauses (though introductory words such as those in Clause 9 might still be considered desirable as a matter of drafting). The power could be expressly limited to repeals or amendments in the precise terms approved by the people in the referendum. For the reasons given below, it would be desirable for the alteration also to confer on the Parliament an express power to repeal or amend section 8 of the Statute of Westminster 1931 to the extent necessary to enable the repeal or amendment of the preamble or covering clauses.

15. Conferral under section 128 of a power on the Commonwealth Parliament, as a means of amending the covering clauses, was the course suggested in 1974 by Professor Enid Campbell, OBE, in an Opinion for the Australian Constitutional Convention (Standing Committee 'D' Report, August 1974, p. 95; see also Constitutional Commission, Final Report, paragraphs 3.116-3.118). The last part of section 2(2) of the Statute of Westminster provided - and still provides that the powers of the Commonwealth Parliament (whether conferred by the original Constitution or by a constitutional alteration) include the power to repeal or amend any United Kingdom Act in so far as it is part of the law of Australia. If it is stood unqualified, it might well have included the Constitution Act (Kirmani v Captain Cook Cruises Pty Ltd (1985) 159 CLR 351, 376-377 Mason J, 410 Brennan J, 429-430 Deane J). However, it is qualified by section 8 of the Statute of Westminster which provides that nothing in the Statute conferred any power to repeal or alter the Constitution Act (or the Constitution) otherwise than 'in accordance with' the law existing before the commencement of the Statute of Westminster. Professor Campbell argued that this only required compliance with the referendum procedure in section 128. The contrary view was that section 8 also retained any substantive obstacles to amendment by the Commonwealth Parliament of the Constitution Act - and it was argued that the Colonial Laws Validity Act 1865 was such an obstacle. On this view, only the United Kingdom Parliament could have altered the preamble and covering clauses.

16. In my opinion, it is unnecessary to resolve that issue since the way has been cleared by the Australia Act 1986 (UK) (referred to below as 'the Australia Act') to implement Professor Campbell's 1974 suggestion. Section 15 provides as follows:-

15.

(1) This Act or the Statute of Westminster 1931, as amended and in force from time to time, in so far as it is part of the law of the Commonwealth, of a State or of a Territory, may be repealed or amended by an Act of the Parliament of the Commonwealth passed at the request or with the concurrence of the Parliaments of all the States and, subject to subsection (3) below, only in that manner.

(2) For the purposes of subsection (1) above, an Act of the Parliament of the Commonwealth that is repugnant to this Act or the Statute of Westminster 1931, as amended and in force from time to time, or to any provision of this Act or of that Statute as so amended and in force, shall, to the extent of the repugnancy, be dccmcd an Act to repeal or amend the Act, Statute or provision to which it is repugnant.

(3) Nothing in subsection (1) above limits or prevents the exercise by the Parliament of the Commonwealth of any powers that may be conferred upon that Parliament by any alteration to the Constitution of the Commonwealth made in accordance with section 128 of the Constitution of the Commonwealth after the commencement of this Act."

17. Under section 15(1) the Commonwealth Parliament, at the request or with the concurrence of each State Parliament (and without any referendum), could now repeal or amend section 8 of the Statute of Westminster in so far as the Constitution Act is concerned. Section 15(2) allows this to be done, not only by any law that expressly repeals or amends section 8, but also by any other law that is 'repugnant' to section 8. There can be no limits to the power under section 15(1) read with section 15(2) to repeal or amend the Statute of Westminster so far as the Constitution Act is concerned, since otherwise, the power of the United Kingdom Parliament having been terminated, the Constitution Act could not be changed by any procedure at all (at least if the 'orthodox' view in paragraph 12 above is accepted). Adapting the remark by Dawson J in Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 638, in relation to the interpretation of the Constitution: 'An interpretation [of the relevant legislation] which denies the Completeness of Australian legislative power is unacceptable in terms of constitutional theory and practice'.

18. With the repeal or amendment of section 8 of the Statute of Westminster to the necessary extent, the Parliament might then have power, under section 2(2) of the Statute of Westminster, to repeal or amend the preamble and covering clauses in the Constitution Act (see paragraph 15 above) without the need to obtain any further powers. However, in order to avoid doubt on that aspect, legislation under section 15(1) could empower the Commonwealth Parliament to repeal or amend the preamble and covering clauses.

19. Section 15(1), read with section 15(2), is expressed to provide the only way to repeal or amend the Statute of Westminster but this is expressly made subject to section 15(3). Section 15(3) provides that nothing in subsection (1) prevents the Parliament from exercising any power conferred upon it by a constitutional alteration under section 128 of the Constitution after the commencement of the Australia Act (on 3 March 1986).

20. In my opinion, section 15(3) allows the Parliament, if given power pursuant to a referendum under section 128 of the Constitution, to do anything that can be done by the alternative procedure under section 15(1) read with section 15(2). Hence, if the Parliament were given power by a constitutional alteration to do so, it could enact a law repealing or amending section 8 of the Statute of Westminster (either expressly or by way of any other 'repugnant' provision) to the necessary extent, and immediately upon commencement of that repeal or amendment, repealing or amending the preamble or covering clauses in the Constitution Act - the latter being either an exercise of power under section 2(2) of the Statute of Westminster (see paragraph 15 above) or, if no such power exists, an exercise of a new power conferred by the constitutional alteration (see paragraph 18 above).

21. It might be argued against this that, since the literal form of section 15(3) is that of a provision about the effect of section 15(1), section 15(3) merely limits the effect of section 15(1) and has not added to what could have been done under section 128 of the Constitution in the absence of section 15(3). On that view, section 15(3) has not removed the impediment created by section 8 of the Statute of Westminster to Professor Campbell's 1974 suggestion.

22. That interpretation is, in my opinion, clearly incorrect. Let it be accepted that, in the absence of section 15 of the Australia Act, a constitutional alteration under section 128 of the Constitution could not have conferred power on the Parliament to repeal or amend section 8 of the Statute of Westminster. Section 15(1), if unqualified by section 15(3), would obviously not have allowed such a constitutional alteration. There would have been no need for section 15(3) if its only point was to qualify section 15(1) (cf. paragraph 21 above): its purpose must have been positively to allow at least some kinds of amendments to the Statute of Westminster (and the Australia Act) to be effected pursuant to a future alteration to the Constitution under section 128.

23. In my opinion, the correct view of section 15(3) is that it not only qualifies the exclusiveness of section 15(1), but also positively allows a subsequent alteration under section 128 to enable the Parliament to do any of the things that can be done by the alternative procedure under section 15(1) read with section 15(2). These things include the repeal or amendment of section 8 of the Statute of Westminster in so far as the Constitution Act is concerned. This is a natural meaning of the provisions when read as a whole. It is supported by leading constitutional scholars (e.g.. L. Zincs, The High Court and the Constitution, 3rd ed. 1992, p. 263, and R.D. Lumb, The Constitution of the Commonwealth of Australia Annotated, 4th ed. 1986, p. 11).

24. Furthermore, extrinsic Parliamentary materials support that interpretation. First, the Second Reading Speech on 13 November 1985 in the House of Representatives on the Bill for the Act requesting the United Kingdom Parliament to enact the Australia Act stated (Parliamentary Debates, Vol. H. of R. 145, p. 2686) states:-

'Clause 15 provides that the proposed legislation and the Statute of Westminster, as amended and in force from time to time, insofar as it is part of the law of the Commonwealth, a State or a Territory, can be repealed or amended only by the Commonwealth Parliament at the request, or with the concurrence, of the parliaments of all the States. An exception is made in respect of Commonwealth legislation enacted pursuant to any constitutional alteration made, in accordance with section 128 of the Constitution, after the commencement of the Australia Act.'

A similar statement appears in the Explanatory Memorandum (paragraph 23). The natural tenor of these statements is that, in addition to the method provided under section 15(1) for the repeal or amendment of the Australia Act or the Statute or Westminster, there would be an alternative method of repeal or amendment, available to the same extent, by way of an Act of the Commonwealth Parliament enacted pursuant to a power conferred by a future alteration to the Constitution, and that there would be power to make such an alteration.

25. This interpretation is confirmed by the following statement in explanatory materials and speeches in the State Parliaments on the Australia Acts (Request) Bills in September-October 1985:-

'Sub-clause (3) leaves open the possibility that a future amendment to the Commonwealth Constitution using the section 128 referendum procedure might give the Commonwealth Parliament power to effect some alteration to the Australia Acts or the Statute of Westminster'.

(e.g.. New South Wales Parliamentary Debates, Legislative Assembly, p. 6976; Victorian explanatory memorandum, paragraph 39; Queensland Parliamentary Debates, p. 1506; Western Australian Parliamentary Debates, p. 1025; South Australian Parliamentary Debates, p. 870; Tasmanian Parliamentary Debates, Legislative Council, p. 3037; some of the speeches in the debates proceed as if clause 15(3) did not exist and, being based on a disregard of clause 15(3), cannot be relied upon to support the view that section 15(1) provides the only means of repealing or amending the Australia Act or the Statute of Westminster.)

26. It could be strongly argued that, because of section 15(2) of the Australia Act, it would be enough for the constitutional alteration simply to empower the Commonwealth Parliament to repeal or amend the preamble or covering clauses (without expressly conferring power to repeal or amend section 8 of the Statute of Westminster), since the conferral of that power would be 'repugnant' to section 8 of the Statute and so would be taken to be a repeal or amendment to the relevant extent. However, any doubts on this point would be avoided if the alteration included an express power for the Commonwealth Parliament to repeal or amend section 8 to the necessary extent (and if, of course, the Parliament exercised that power).

27. With regard to Professor Campbell's 1974 suggestion (paragraph 15 above), a further argument, not affected by the Australia Act, was advanced by Mr Gregory Craven in his book Secession: The Ultimate States Right (MUP 1986) at p. 172 (italics added):-

'Clearly, the amendment to s.128 contemplated by Professor Campbell would be itself an amendment of the covering clauses and more particularly the opening words of covering clause 9. Given this fact it would be beyond the power of the amending authority provided for by s.128 and would thus be void, quite independently of any operation of the Colonial Laws Validity Act. Accordingly, even if s.8 of the Statute of Westminster did have the effect claimed for it by Professor Campbell, an amendment to s.128 giving the Commonwealth Parliament the power to amend or repeal the covering clauses would still be ineffective.'

28. With respect, Mr Craven's assertion that the amendment to section 128 contemplated by Professor Campbell would be an 'amendment' of the covering clauses is incorrect: it would be a conferral of power to amend them. Before the Statute of Westminster such a conferral would probably have been void because of the Colonial Laws Validity Act 1865. If, after the Statute of Westminster, it would have been void because of section 8 of that Statute, that obstacle was removed in 1986 by the Australia Act as explained above.

29. Accordingly, I conclude that the Constitution could be altered, in accordance with section 128, to confer on the Commonwealth Parliament (a) power to repeal or amend section 8 of the Statute of Westminster to the extent necessary for the purpose of repealing or amending the preamble or covering clauses of the Constitution Act in the terms approved at a referendum under section 128, and (b) power to enact such repeals or amendments accordingly (to come into force immediately after commencement of the repeal or amendment in (a)). These alterations could be combined with provisions directly altering the preamble and covering clauses, so as to take advantage of the view in paragraph 13 above concerning section 128.

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Question 2:

Even if an amendment to the covering clauses is not necessary in order to bring about a republic, could section 128 be used e.g. to:

(a) remove obsolete provisions from covering clauses;

(b) insert, in the preamble, recitals of

(i) independence;

(ii) responsible government; and

(iii) recognition of a prior Aboriginal presence;

(c) delete the enacting words and covering clauses entirely (or as far as possible).

(a) Obsolete provisions in the covering clauses.

30. These could be removed by action under section 128: see my answer to Questions (1)(b) and (c).

(b) (i) Recitals: Independence.

31. For the reasons given in answer to Question l(c), an alteration under section 128 could empower the Commonwealth Parliament to insert a recital before the covering clauses referring, for instance, to Australia as an independent, sovereign nation.

(b) (ii) Recitals: Responsible government.

32. Similarly, the Commonwealth Parliament could be empowered, by an alteration under section 128, to insert a recital referring to responsible government. It could be limited to responsible government in the Commonwealth Parliament and Government, or could extend also to the State systems. 'The existing Constitution refers - for instance, in section 15 - to State 'Parliaments', and this can be taken to imply a system of representative government in each State (cf. Australian Capital Territory Television Pty Ltd v The Commonwealth (the Political Broadcasting Case) (1992) 108 ALR 577, Mason CJ at 597, Brennan J at 602-606, and Deane and Toohey JJ at 617-619.) However, it is a question for policy decision whether a recital as to responsible government in the States would go too far: it might be considered that the recitals should not imply that a State would not be free to adopt a system in which the State Executive was not 'responsible' to the State Legislature (as in the United States).

33. Unless the recital stated that it was not intended to have any legal significance, it could conceivably become relevant in legal proceedings. I note, for example, the reliance placed by several Justices in Leeth v The Commonwealth (1992) 174 CLR 455 (at 475 Brennan J, 486 Deane and Toohey J J) on certain words in the present Preamble - i.e.. 'the people ... have agreed to unite in one indissoluble Federal Commonwealth' - as the basis for holding that the Commonwealth Parliament cannot enact laws that distinguish between persons in different areas on grounds that are not relevant and sufficient in the opinion of the Court. Although, in my respectful opinion, that reliance on the preamble was unjustified, it illustrates the potential legal significance of preambular declarations. However, a declaration as to responsible government is not likely to add to the implications already held to exist in the Constitution itself (see, for example, the Political Broadcasting Case mentioned in paragraph 32 above).

(b) (iii) Recitals: Recognition of a prior Aboriginal presence.

34. There would be no legal objections to a recital of prior Aboriginal 'presence' in Australia. It would, however, only be appropriate to have a recital implying a prior 'presence' throughout the entire country if that was, in fact, the case. I make no comment on that historical aspect. 

35. If the wording were to go beyond a reference merely to a 'presence' and to refer to rights of any kind, some issues would need to be carefully considered especially the terms in which the recital should be expressed having regard to the judgements in Mabo v Queensland (No 2) (1992) 175 CLR 1, concerning native title. If there were any proposal to describe native title in terms such as 'ownership' or 'possession', it would be necessary to obtain legal advice on that proposal.

36. I also draw attention to my comments in paragraph 33 above concerning the potential legal significance of preambular declarations.

(c) Deletion of the enacting words and covering clauses.

37. For the reasons given in paragraphs 11-29 above, the Constitution could be altered under section 128 to confer on the Commonwealth Parliament power to delete entirely the present enacting words and covering clauses - and include in the Constitution itself such parts of clauses 5 and 6 (appropriately updated) as would still be legally significant. In effect, the Constitution Act (including the Constitution itself) could be converted into a document comprising only the Constitution itself preceded by a new preamble (if desired.) and introductory words (if desired) such as those in the present clause 9: ic. 'The Constitution of the Commonwealth shall be as follows:-'.

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Question (3):

Is it constitutionally possible for a State to retain its links with the monarchy if Australia becomes a republic?

38. The answer is 'Yes', subject to my comments below concerning acceptance by the Monarch of the United Kingdom of the status of Monarch in relation to the State.

39. In my opinion, it would be legally possible, by means of legislation approved at a referendum in accordance with section 128 of the Constitution, to provide for a system in which the national polity was republican but a State or States continued to be monarchical (Winterton, "An Australian Republic', 16 Melbourne University Law Review (1988) 467 at 470, referring to the converse structure in the post-1871 German Empire in which the national monarchy contained some republics).

40. The legislation could conceivably provide for the Queen to continue as Queen of Australia - i.e.. as Head of State of Australia - but to cease to have any role in the Commonwealth Parliament or Government. However, this seems to be outside the Committee's terms of reference since they envisage a new Head of State of Australia. In any event, it would seem odd, to say the least, to regard the Queen as still being the Queen of Australia when she had no role whatever in the national Parliament or Government, and might have a role in the Parliament and Government of only one State.

41. It could be argued that, if the Queen ceased to be Head of State of Australia, she would cease, in the absence of some further provision, to have the status of Queen under the law of a State. The argument is that, ever since Australia became a Dominion, the Sovereign has had the status of Sovereign in an Australian State only because the State has been part of the Dominion of Australia and because the Sovereign has been Sovereign of this one Nation. If that argument is correct, and if any State was to retain a monarchical system, it would be necessary to establish a State monarchy (and appoint the Sovereign of the United Kingdom to it with her or his agreement). Such a monarchy could be established either: -

(a) by the State itself, provided the altered Commonwealth Constitution expressly or impliedly permitted the State to do so; (if the Commonwealth Constitution did not positively permit it, the State would be unable to continue with a monarchy since it would be plainly inconsistent with the notion of an independent Australia for a State to have a foreign sovereign as Head of the State for State purposes); or

(b) by an alteration to the Commonwealth Constitution (which could, for instance, establish a monarchy for any State in which there was no majority vote in the section 128 referendum on the legislation to establish the republic, and which could also allow for the State itself to abolish the monarchy if and when it chose to do so).

42. I have referred in paragraph 41 above to the argument that a State monarchy would have to be established if the Queen was to continue as Queen in respect of the State. There is a contrary argument that, since the commencement of the Australia Acts in 1986, the Queen has had the status of Queen of a State, separately from her status as Queen of Australia, by virtue of section 7 of those Acts (which provides that, in exercising powers or functions in respect of a State, the Queen is to be advised by the Premier). This argument has been objected to by some scholars on the ground that the references in section 7 to 'Her Majesty' are references to the Queen of Australia (see Winterton, The Australian Crown: Its Creation and Demise, 1992 Lucinda Lecture, pp.4-5). It is also arguable that section 7(1), while it remains in its present form, does not require the Queen to have any continuing role in relation to a State, but only means that, while there is a Queen of Australia, her representative shall be the Governor.

43. It seems to me that speculation on these issues is entirely arid for present purposes. The important point is that there would be scope for doubts and controversy unless explicit provisions were included in the altered Commonwealth Constitution -

(a) expressly forbidding either the continuation of the monarchy in respect of a State (if in fact it would otherwise continue) or the establishment of a new monarchy for a State; or

(b) expressly permitting the continuation or establishment by a State of such a monarchy, and permitting the monarchy to be occupied at any time by a person who, at that time, is Sovereign of the United Kingdom of Great Britain and Northern Ireland (or at least of a nation that includes England); or

(c) directly establishing a monarchy for any State that had not, by the time of the commencement of the Australian republic, provided for a non-monarchical State Constitution; this provision could expressly allow such a State to abolish the monarchy if it later chose to do so.

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Question (4):

Is it possible for a State's links with the monarchy to be severed -

(a) by the State itself amending its Constitution;

(b) by an amendment to the Commonwealth Constitution under section 128, with or without either the consent of the State legislature or a majority vote for the proposal by the people of the State;

(c) by any other method - e.g.. by the Commonwealth Parliament under section 51(xxxviii) or a combination of methods?

(a) State action

44.

The Constitution of any State might be capable of alteration by legislation of that State alone so as to remove the role of the monarchy. However, it might be inferred from section 7 of the Australia Act that, in each State, there must continue to be a State Governor (as defined in section 16) appointed by the Queen, and that certain functions must continue to be exercisable by the Queen when personally present in a State (cf. paragraph 42 above). Accordingly, it would be desirable to supplement State legislation either with a constitutional alteration under section 128 as permitted by section 15(3) of the Australia Act or with legislation under section 15(1) of the Australia Act (see paragraphs 47-48 below).

45. Some States would have to comply with entrenched provisions in State legislation unless the Commonwealth Constitution was altered to overcome those provisions. (Entrenched provisions relating to the monarchy, and requiring State referenda, exist in the New South Wales Constitution Act 1902 as amended, sections 7A and 7B read within the definition of 'The Legislature' in section 3; the Queensland Constitution Act 1867 as amended, section 11A; the Western Australian Constitution Act 1889 as amended, section 50; and the South Australian Constitution Act 1934, section 10a(2)(5)(7). The Victorian Constitution Act 1975, section 18, requires an absolute majority of the whole number of members in each House of the State Parliament to repeal or amend relevant provisions.)

46. If it was decided to leave it to a State to abolish its monarchical provisions or to establish a new monarchy (see paragraph 43(b) above), it would be necessary for the Commonwealth Constitution to be altered so as to provide a transitional structure for a State that, for any reason, had not legislated by the time of the establishment of the Australian republic. (One possibility for consideration might be a provision for the existing Governor to continue in office, and for the rules concerning acting Governors to continue, until the State had made provision for a successor in its new longer-term structure).

(b) Alteration under section 128

47. In my opinion, the Commonwealth Constitution could be altered so as to prohibit, or so as to empower the Commonwealth Parliament to prohibit, a State Constitution from providing any longer for a monarchy or for the exercise of powers in relation to the State by a person who was a foreign monarch. In so far as section 7 of the Australia Act might be thought to preclude this, the constitutional alteration would remove that obstacle (see sections 15(1) and (3) of the Australia Act and paragraphs 16-29 above). There could be a need for the altered Constitution to contain transitional provisions on this matter (see paragraph 46 above).

(c) Other methods

48. Legislation under section 15(1) of the Australia Act could achieve the result in question, but this would need the request or consent of all State Parliaments (though referenda would not be legally required).

49. There would be problems with legislation by the Commonwealth Parliament under section 51(xxxvii) or (xxxviii) of the Constitution at the request of, or pursuant to a reference by, a State Parliament, since some State requests and references might be contrary to entrenched provisions such as those referred to in paragraph 45 above. Nor would Commonwealth legislation under other powers be available since, even if a subject-matter of a Commonwealth power would extend to this matter, there are implied limitations within the existing Constitution on Commonwealth legislation directed at State Constitutions (e.g.. Political Broadcasting Case (above), 108 ALR at 675-677 McHugh J).

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Question (5):

(a) Would it be possible to apply existing conventions relating to the exercise of the powers of the Governor-General to the exercise of powers by a republican head of state by reference to the position of the Governor-General?

(b) Could that be achieved without 'freezing' the conventions at the time of the amendments?

50. The answer to each part of this question is 'Yes'.

51. As to part (a), the aim could be achieved by referring generally to the conventions without specifying them, or by specifying them all. Any attempt to specify them could, of course, be expected to be controversial (see, for example, the papers prepared for Standing Committee D of the Australian Constitutional Convention by Geoffrey Sawer, Kevin Ryan and Cheryl Saunders/Ewart Smith - Standing Committee D, Vol It, Appendices D, E and G respectively).

52. As to part (b), the constitutional alterations could include a provision to the effect that the altered Constitution's application of the conventions to the exercise of powers by the republican Head of State should not be taken to prevent or affect the development of the constitutional conventions. Careful attention would, of course, need to be given to the drafting of the constitutional alteration for this purpose.

53. If the status quo was to be maintained, the alteration would need to provide expressly that issues as to the observance of the conventions were to be non-justiciable. If this were not done, issues that are, in my opinion, wholly unsuitable for determination by the High Court would become the subject of judicial proceedings.

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Question (6):

Could prerogative powers currently exercised by the Governor-General and the State Governors be vested in a republican Head of State and/or his or her State equivalents, and if so, how?

54. The alterations to the Constitution under section 128 could include a provision to the desired effect.

55. A provision for a similar purpose (but not limited to prerogative powers) was contained in Article 49 of the Irish Constitution as follows:-

'1. All powers, functions rights and prerogatives whatsoever exercisable in or in respect of Saorstat Eireann immediately before the 11th day of December, 1936, whether in virtue of the Constitution then in force or otherwise, by the authority in which the executive power of Saorstat Eireann was then vested are hereby declared to belong to the people.

2. It is hereby enacted that, save to the extent to which provision is made by this Constitution or may hereafter be made by law for the exercise of any such power, function, right or prerogative by any of the organs established by this Constitution, the said powers, functions, rights and prerogatives shall not be exercised or be capable of being exercised in or in respect of the State save only by or on the authority of the Government.

3. The Government shall be the successors of the Government of Saorstat Eireann as regards all property, assets, rights and liabilities.'

56. A somewhat analogous provision (also not limited to prerogative powers and functions) was contained in section 70 of the Constitution in order to transfer to the Governor-General those powers and functions of the colonial Governors in respect of matters which, under the Constitution, passed on 1 January 1901 to the Executive Government of the Commonwealth. Section 70 reads as follows:-

'70. In respect of matters which, under this Constitution, pass to the Executive Government of the Commonwealth, all powers and functions which at the establishment of the Commonwealth are vested in the Governor of a Colony, or in the Governor of a Colony with the advice of his Executive Council, or in any authority of a Colony, shall vest in the Governor-General, or in the Governor-General in Council, or in the authority exercising similar powers under the Commonwealth, as the case requires.'

57. I should also mention the need to provide for the exercise by a new Australian Head of State, or by officers replacing State Governors, of any powers at present vested in the Queen under Imperial legislation extending to Australia.

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Question (7): What provisions would be necessary to deal with Crown immunities and the position of the Crown in the system of land tenure?

58. One course would be for the constitutional alteration under section 128 to provide, in effect, that any rights (including property rights), powers, privileges and immunities of the Crown in right of the Commonwealth, or of the Crown in fight of a State or Territory, should be vested in and enjoyed by the Commonwealth, or by the State or Territory, respectively, and that all the fights, powers, privileges and immunities vested personally in the Governor-General as such, or in the Governor or Administrator as such of a State or Territory, should be vested in the President, or State or Territory officer corresponding to the Governor or Administrator, as the case may be. Furthermore, since immunities of other officers are often stated to be based on 'Crown' privileges and immunities, it would be prudent to provide also, in effect, that other persons acting for and on behalf of the Commonwealth, or of a State or Territory, should have the same rights, powers, privileges and immunities as if the conversion to a republic had not occurred.

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DENNIS ROSE QC

29 June 1993