Media articles on how transition to a republic might be achieved have usually been poorly informed and facile. However, there is some valuable material available on the internet:
Another consideration is that because of the broad agreement required to achieve the necessary constitutional change, it would be pointless to put forward anything beyond that which was absolutely necessary.
Our premise then is that Australians wish to alter their constitutional arrangements in such a way as to achieve these things, but to keep everything else, as far as possible, unchanged. This is similar to the Keating Government's "minimalist" republic proposal, except for the popular election of the Head of State. If, as we believe, the Head of State is to be elected by the people, then in order to avoid the destructive political rivalry which could arise between a Prime Minister and a powerful President, it is necessary to ensure that the powers of the President are narrowly prescribed by the Constitution. In the Keating model, the President was left with the extensive crown "reserve powers", and the solution to the rivalry problem was that the President would be chosen by the Government and endorsed by a two thirds majority of both Houses of Parliament rather than being elected by the people - the assumption being that this would result in a "safe" appointment. History has shown, however, that appointments thought to be "safe" cannot be relied upon, particularly when they involve wide discretionary power. An ancient example is Thomas A'Beckett.
The PPAS has initiated the present paper in order to provide an outline of what must be done in order to move to a republic, accepting the above premise.
[9th July 1900]
WHEREAS the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established:
And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:
Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-
Short title.
This Act may be cited as the Commonwealth of Australia Constitution Act.
2. The provisions of this Act referring to the Queen shall extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom.
Proclamation of Commonwealth.
3. It shall be lawful for the Queen, with the advice of the Privy Council, to declare by proclamation that, on and after a day therein appointed, not being later than one year after the passing of this Act, the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, and also, if Her Majesty is satisfied that the people of Western Australia have agreed thereto, of Western Australia, shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia. But the Queen may, at any time after the proclamation, appoint a Governor-General for the Commonwealth.
Commencement of Act.
4. The Commonwealth shall be established, and the Constitution of the Commonwealth shall take effect, on and after the day so appointed. But the Parliaments of the several colonies may at any time after the passing of this Act make any such laws, to come into operation on the day so appointed, as they might have made if the Constitution had taken effect at the passing of this Act.
Operation of the constitution and laws.
5. This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen's ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.
Definitions.
6. "The Commonwealth" shall mean the Commonwealth of Australia as
established under this Act.
"The States" shall mean such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria,
Western Australia, and South Australia, including the northern territory
of South Australia, as for the time being are parts of the Commonwealth,
and such colonies or territories as may be admitted into or established by
the Commonwealth as States; and each of such parts of the Commonwealth
shall be called "a State".
"Original States" shall mean such States
as are parts of the Commonwealth at its establishment.
Repeal of Federal Council Act. 48 & 49 Vict. c. 60.
7. The Federal Council of Australasia Act, 1885, is hereby repealed, but so as not to affect any laws passed by the Federal Council of Australasia and in force at the establishment of the Commonwealth. Any such law may be repealed as to any State by the Parliament of the Commonwealth, or as to any colony not being a State by the Parliament thereof.
Application of Colonial Boundaries Act. 58 & 59 Vict. c. 34.
8. After the passing of this Act the Colonial Boundaries Act, 1895, shall not apply to any colony which becomes a State of the Commonwealth; but the Commonwealth shall be taken to be a self-governing colony for the purposes of that Act.
Constitution.
9. The Constitution of the Commonwealth shall be as follows:
There is a legal mechanism for amending the Covering Clauses - namely, the processes prescribed under s 15 of the Australia Act 1986. However, these processes would require the agreement of all States.
Legal advice obtained by the Society is that amendment of the Covering Clauses would not be necessary. In outline, that advice is as follows:
The Preamble
In essence, the Preamble is a statement of historical fact, and amendment of it would be logically absurd.
The relevant text is "Whereas the people ... have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established". This is merely a statement of what had been agreed to by the people. There is no suggestion that the people had any power to adopt for themselves any particular form of government - this is done for them by the Queen's Proclamation (mentioned in Clause 3). In any case, what the people agreed to in 1900 is only described as irrevocable in one respect: the indissolubility of the Federal Commonwealth.
It could perhaps be argued that dissolution of the Federal Commonwealth would be inconsistent with one of the basic premises of the Act, and so require specific amendment of that Act, but there is no basis for arguing that the words "under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established" were intended as anything other than a description of the people's preference at the time, mentioned in the Act for explanatory purposes. The fact that the Constitution contained (at s 128) a method for amendment of the Constitution shows conclusively that the words "under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established" merely described the situation at the time the Act was passed, and were not prescriptive as to the future.
Clause 2
This defines the meaning of the term "the Queen". If the term is eliminated from the Constitution, then the definition is irrelevant. If Australia wished to establish some other royal line, then Clause 2 would perhaps need amending (although there would be ways round this), but for the abolition of the monarchy no amendment is required.
Clause 3
The provisions of the first sentence are spent.
The last sentence, "But the Queen may, at any time after the proclamation, appoint a Governor-General for the Commonwealth", is unimportant, provided the term "Governor-General" is eliminated from the Constitution. No doubt similar provisions for appointment of various officials remain as historical curiosities in numerous pieces of legislation of the former colonial powers.
Thus, the new constitutional arrangements can be achieved through amendment of the Constitution, using the provisions of s 128.
The Republic Advisory Committee (RAC) agreed that a republic could be created without using mechanisms other than those of s 128. However, that Committee had a curious perception of the Preamble. Speaking as Chairman of the RAC, Mr M Turnbull said in presenting a review:
Whether a change to the preamble to the Commonwealth of Australia Constitution Act 1900 would be necessary or desirable if Australia were to become a Republic - the Committee concluded that it is not necessary, as a matter of law, to change the preamble, but that the change to a Republic might be an appropriate time to reassess the statements about Australia which are contained in the preamble...
What the RAC apparently failed to understand was that the Preamble to the Commonwealth of Australia Constitution Act 1900 is essentially a statement of the historical facts (see above). A new Preamble can be inserted in the Constitution using the mechanism of s 128, without any need to amend the UK Act. Since the transition to a republic involves extensive amendment of the Constitution, the PPAS believes it would be appropriate to insert such a Preamble (see below).
It would in principle be possible to move to a republic at Commonwealth level while retaining the monarchy at State level. However, if the majority of the people of Australia, and the majority of the States, decide to move to a republic, then presumably most States will also abolish the monarchical system. This is a matter for the States.
The powers of the President must be prescribed. It has been suggested that apart from the powers presently assigned to the Queen or the Governor-General, codification of the powers may not be necessary - that perhaps it would be sufficient to merely stipulate that the powers should be "the reserve powers previously held by the Queen or the Governor-General". However, we believe this would lead to unnecessary uncertainty. The powers should be codified, and should (apart from those specified below) be those of the reserve powers which are believed to be necessary under the new constitutional arrangements. Professor George Winterton ("Keeping it Simple") proposed that Parliament itself should be given power under the Constitution to codify the reserve powers of the President, and we agree with this general approach. The amendments shown at sections 51(xl), 59, 60, 62, 62A, 62B and 62C below are based on Prof Winterton's proposal.
Transitional arrangements will be necessary. They are not included below.
s2. "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."
s3. "There shall be payable to the Queen out of the Consolidated Revenue fund of the Commonwealth, for the salary of the Governor-General, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds.
The salary of a Governor-General shall not be altered during his continuance in office.
s4. "The provisions of this Constitution relating to the Governor-General extend and apply to the Governor-General for the time being, or such person as the Queen may appoint to administer the Government of the Commonwealth; but no such person shall be entitled to receive any salary from the Commonwealth in respect of any other office during his administration of the Government of the Commonwealth."
s5. "The Governor-General may appoint such times for holding the sessions of the Parliament ..."
s7. "... the names of the senators chosen for each State shall be certified by the Governor to the Governor-General."
s15. "... The name of any senator chosen or appointed under this section shall be certified by the Governor of the State to the Governor-General."
s17. "... The President shall cease to hold his office if he ceases to be a senator. He may be removed from office by a vote of the Senate, or he may resign his office or his seat by writing addressed to the Governor-General."
s18, s 19, s21, s23. As for s17.
s28. "Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be sooner dissolved by the Governor-General."
s32. "The Governor-General in Council may cause writs to be issued ..."
s33. As for s32.
s34. "... a subject of the Queen, either natural-born or for at least five years naturalized under a law of the United Kingdom, or of a Colony which has become or becomes a State, or of the Commonwealth, or of a State."
s35. "... by writing addressed to the Governor-General."
s37. As for s35.
s42. "... subscribe before the Governor-General".
s44. "... But sub-section iv. does not apply to the office of any of the Queen's Ministers of State for the Commonwealth, or of any of the Queen's Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen's navy or army ..."
s51. [Powers of the Commonwealth Parliament]
(xl) The exercise of any power vested by this Constitution in the President, the President in Council, or any other person or authority exercising the executive power of the Commonwealth.
s56. "... by message of the Governor-General to the House in which the proposal originated."
s57. "... the Governor-General may dissolve the Senate and the House of Representatives simultaneously ... the Governor-General may convene a joint sitting of the members of the Senate and of the House of Representatives. ... shall be presented to the Governor-General for the Queen's assent."
s58. 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.
"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."
s59. "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."
There shall be a President, who shall be the Head of State of the Commonwealth, and shall exercise and perform the powers and functions conferred on the President by this Constitution and by law.
s60. "A proposed law reserved for the Queen's pleasure... "
Until the Parliament otherwise provides by agreement of a two thirds majority of both houses, the President shall exercise and perform his powers and functions in accordance with the Constitutional conventions which related to the exercise and performance of the powers and functions of the Governor-General, but nothing in this section shall have the effect of converting constitutional conventions into rules of law.
s61. "The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth."
s62. "There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure."
s62. (1) The President shall appoint a person, to be known as the Prime Minister, to be the Head of the Government of the Commonwealth.
(2) Following a general election, the President shall appoint as Prime Minister the person who he believes most likely to be able to form a Government which will have the confidence of the House of Representatives.
(3) The Prime Minister shall not hold office for a longer period than 90 days unless he is or becomes a member of the House of Representatives.
(4) The Prime Minister shall hold office, subject to this Constitution, until he dies, resigns, or the President terminates his appointment.
s62A. (1) The President may, with the advice of the Prime Minister, appoint Ministers and Assistant Ministers.
(2) No Minister or Assistant Minister shall hold office for a longer period than 90 days unless he is or becomes a Senator or a member of the House of Representatives.
(3) The President may, with the advice of the Prime Minister, terminate the appointment Ministers and Assistant Ministers.
62B. (1) The Prime Minister, Ministers and Assistant Ministers appointed under section 62 or section 62A of this Constitution shall be the Ministers of State for the Commonwealth.
(2) The number of Ministers and Assistant Ministers shall not exceed the number prescribed by the Parliament.
s62C. (1) There shall be a Federal Executive Council to advise the President in the Government of the Commonwealth.
(2) The Councillors shall be the Ministers of State for the time being, who shall each make the prescribed oath or affirmation.
(3) The President may convene meetings of the Federal Executive Council.
s63. "The provisions of this Constitution referring to the Governor-General in Council shall be construed as referring to the Governor-General acting with the advice of the Federal Executive Council."
s64. "The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish.
Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State for the Commonwealth."
s65. "Until the Parliament otherwise provides, the Ministers of State shall not exceed seven in number, and shall hold such offices as the Parliament prescribes, or, in the absence of provision, as the Governor-General directs."
s66. "There shall be payable to the Queen, out of the Consolidated Revenue Fund of the Commonwealth, for the salaries of the Ministers of State, an annual sum which, until the Parliament otherwise provides, shall not exceed twelve thousand pounds a year."
s67. "Until the Parliament otherwise provides, the appointment and removal of all other officers of the Executive Government of the Commonwealth shall be vested in the Governor-General in Council, unless the appointment is delegated by the Governor-General in Council or by a law of the Commonwealth to some other authority."
s68. "The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen's representative."
s69. "On a date or dates to be proclaimed by the Governor-General..."
s70. "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."
s72. The Justices of the High Court and of the other courts created by the Parliament- ...
s74. "No appeal shall be permitted to the Queen in Council ..."
s83. "But until the expiration of one month after the first meeting of the Parliament the Governot-General in Council ..."
s85. "... All property of the State of any kind, used exclusively in connexion with the department, shall become vested in the Commonwealth; but, in the case of the departments controlling customs and excise and bounties, for such time only as the Governor-General in Council may declare to be necessary"
s103. "The members of the Inter-State Commission-..."
s117. A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.
s122. "The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit."
s126. "The Queen may authorise the Governor-General to appoint any person, or any persons jointly or severally, to be his deputy or deputies within any part of the Commonwealth, and in that capacity to exercise during the pleasure of the Governor-General such powers and functions of the Governor-General as he thinks fit to assign to such deputy or deputies, subject to any limitations expressed or directions given by the Queen; but the appointment of such deputy or deputies shall not affect the exercise by the Governor-General himself of any power or function."
s128. "... But if either House passes any such proposed law by an absolute majority, and the other House rejects or fails to pass it, or passes it with any amendment to which the first-mentioned House will not agree, and if after an interval of three months the first-mentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment which has been made or agreed to by the other House, and such other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will not agree, the Governor-General may submit the proposed law as last proposed by the first-mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to the electors in each State and Territory qualified to vote for the election of the House of Representatives."
"And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approved the proposed law, it shall be presented to the Governor-General for the Queen's assent."
OATH.
"I, A.B., do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law. SO HELP ME GOD!"
AFFIRMATION.
"I, A.B., do solemnly and sincerely affirm and declare that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law.
NOTE.
The Society suggests that the President should be chosen by popular vote from among the people who fulfil the following conditions:
The conditions after "nominate themselves" above are directed at reducing numbers nominating. If electronic polling is envisaged, they would be unnecessary.
The method of election should be as follows: If not more than 12 candidates nominate, the election should take place 3 months after nomination day. If more than 12 candidates nominate, there should be a preliminary poll one month after nomination day at which the excess over 12 candidates are eliminated, followed by the election among the remaining 12 two months later. In any preliminary poll, each elector may cast a vote for one candidate only. In the final election, each elector shall number all can didates in order of preference.
The first two terms should be two years. Thereafter, the term should be 4 years. Noone should be eligible to serve for more than two terms.
In the event of a casual vacancy, the President of the Senate should serve as President, pending election of a new President.
The President may be dismissed by vote of two thirds of the House of Representatives and two thirds of the Senate.
In principle, the Society has no objection to such a proposal being put to the People - but we doubt that it would be approved. Why would the Australian People wish to take such a leap in the dark other than in circumstances of crisis?
The Society sees grave danger that politicians and special interest groups may seek to manipulate the public in connection with a referendum on the republic, and believes it important that any proposed constitutional change which is not absolutely necessary to the achievement of a republic must be put as a separate question. Certainly, if there is to be a referendum, the opportunity may be taken to put to the People proposed changes other than the specific question of a republic - but these other issues must be listed separately on the ballot paper.
To do otherwise would be gravely undemocratic, amounting to blackmail of the People by the Government. Particularly since (effectively) no referendum can be initiated without the agreement of the Government, it would be highly improper for the Government to put at referendum a package of constitutional changes, suspecting or knowing that one of them was highly favoured by the People, and adding the others on the basis that the People must accept the whole package or none of it.
The Society foresees a possibility that an entirely new Constitution may be drafted under the supervision of various parliamentary committees; that in the course of this process various deals may be done between political parties and various lobby groups; and that finally, the new Constitution may be put to the People at referendum.
The Society firmly opposes such action, as it effectively removes power from the People and hands it to politicians and special interest groups. Vigilance must be exercised to avoid this, as such usurpation of the People's power is likely to be attractive to all major political parties.
For this reason, the Society believes that even the "cleaning up" of the Constitution - deletion of spent provisions and minor alteration of terminology - must not be packaged with the republican question. In particular, any new Preamble to the Constitution should be voted on line by line at the referendum, to the extent that it exceeds the minimal version suggested under the heading A summary of the amendments required above.