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SOUTH AUSTRALIAN CONSTITUTIONAL CONVENTION

Submission to the 2003 South Australian Constitutional Convention
by
Nick Hobson

INDEX

Introduction | Discussion | Recommendation

INTRODUCTION
  1. The forthcoming South Australian Constitutional Convention to be held in June 2003 offers a unique opportunity for all South Australians; they could be the first people of an Australian state to have a people's constitution which mirrors the same high standards as enjoyed by all Australians with our Australian Constitution. South Australians could also have an opportunity to be the first people of any Australia state to prevent any change to the Commonwealth of Australian Constitution Act (which contains the Australian Constitution), the Statute of Westminster and the Australia Acts without their being asked for approval to do so. Currently, and with the power of the Australia Acts, the Commonwealth Parliament, by Acts supported by the state Parliaments, can amend the provision in the Statute of Westminster that precludes it from amending the Commonwealth Constitution, the covering clauses and the preamble contained in the Commonwealth of Australia Constitution Act.

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DISCUSSION
  1. Currently, and unlike the Australian Constitution, only some aspects of the South Australian Constitution require a referendum for change. Principally, a referendum is required only to:

    1. abolish the House of Assembly,

    2. abolish the Legislative Council,

    3. alter the powers of the Legislative Council,

    4. repeal or alter sections 8 or 41 of the Constitution, or

    5. repeal or amend section 10(a) of the Constitution.

  2. Other parts of the SA Constitution may be changed by the politicians alone without reference to the people. This is inconsistent with the constitution or rules of any company or association which can only be approved of by the members of any such organisation.

  3. Additionally, and in an article in the Sydney Morning Herald, Professor Cheryl Saunders stated: "Fundamental rules about the acquisition of public power cannot be left confidently to those who presently hold power or who have regular prospect of doing so." Although Professor Saunders was making a reference to the Australian Constitution, her statement equally applies with the same weight and force in respect of our state constitutions.

  4. Up until the introduction of the Australia Acts in 1986, state constitutions were controlled by the United Kingdom's Colonial Laws Validity Act 1865. Section 3 of the Australia Acts removes this restriction from the states and also allows for the states to amend or repeal any United Kingdom legislation that extends to them. Additionally, Section 6 of the Australia Acts requires that any law made by the Parliament of a state in respect of the constitution, powers or procedures of the Parliament of a state must be made in such manner and form required by law made by that Parliament whether made before or after the commencement of the Australia Acts. In other words, the Australia Acts now dictate that a State law on "the constitution, powers or procedure by the Parliament" must follow any existing prescribed manner-and-form provision.

  5. So while the State Constitutions can mostly be altered by ordinary Acts, each of the States has restrictions - or safeguards - on certain constitutional provisions. These commonly deal with the abolition of the legislative House, one or both, and any amendment to the term of the Lower House. The restrictions take the form of a prior consent by the electors in a referendum and/or a large majority vote in the legislature. The need to change these arrangements and to have a "fully controlled" constitution is paramount if the people of South Australia are to have sovereignty over their Parliament and their Constitution.

  6. Earlier, this paper identified that the collective Australian legislatures can legally amend or repeal the Australian Constitution outside of the constraints of Section 128 of the Australian Constitution and, therefore, without reference to the Australian People. It is probably fair to say that this is not what the Founding Fathers had envisaged when they drafted the Australian Constitution. Accordingly, the people of South Australia should demand an additional provision in Section 10A of the South Australian Constitution that requires any Bill that amends or repeals - or purports to amend or repeal - any or all of the Commonwealth of Australia Constitution Act, the Statute of Westminster 1931, the Australia Act 1986 (Commonwealth), and the Australia Act 1986 (United Kingdom) is not to be presented for Royal Assent until the Bill has been approved by the South Australian electors in accordance with Section 10A of the South Australian Constitution.

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RECOMMENDATION
  1. Recommendation is that the following provisions be entrenched into the South Australian Constitution Act 1934:

    1. A clause requiring that no part of the South Australian Constitution Act 1934 be amended or repealed without first receiving approval of the South Australian electors, and

    2. A clause requiring that a Bill requesting an amendment to, or a Bill requesting to repeal, any or all of the following Acts is not to receive Royal Assent until approval has been given by the electors of South Australia:

      1. The Commonwealth of Australia Constitution Act 1900,

      2. The Statute of Westminster 1931,

      3. The Australia Act 1986 (Commonwealth), and

      4. The Australia Act 1986 (United Kingdom).

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