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Framework Document
STATE CONSTITUTIONS
Outline
Convention
Themes and Topics
Theme
1: The Republic, the States and the Nation
Theme
2: The Republic and State Governors
In
November 1999, Australians will vote in a referendum to decide whether
to break the ties with the Crown at the Commonwealth level of government
and, in that sense, to become a republic. The model for a republic that
will be put to referendum is based on the recommendations of a partly
elected Constitutional Convention (Con Con), held in February 1998. [That
model would substitute a President for the Queen and the Governor-General.
The President would have the same powers and discretions as the Governor-General.
He or she would be appointed for a five year term, by a 2/3 vote of a
joint sitting of both Houses of the Commonwealth Parliament, on a nomination
by the Prime Minister, seconded by the Leader of the Opposition. Before
making a nomination, the Prime Minister must consider a report of a committee
charged with the task of seeking and receiving nominations from the public.]
Australia
is a federation, comprising six Original States, two self-governing mainland
territories and a number of external territories. The Queen is Head of
State of each of the States as well, although she is represented for all
practical purposes by a Governor, appointed by the Queen on the advice
of the State Premier. Each State has its own Constitution, which reflects
this arrangement in one way or another. In addition the Australia Acts,
which are binding on the States, refer to the position of State Governor.
Those Acts can be changed only by co-operative action between all Australian
Parliaments or through a conferral of power, by referendum, on the Parliament
of the Commonwealth.
It
would be possible for an alteration to the Commonwealth Constitution to
require each State to break its links with the Crown and to make alternative
provision for the exercise of the powers of the Queen and the Governor
in each of the States. Con Con recommended against this, however. While
it thought that it was desirable for all parts of Australia
to move to a republic at the same time, it nevertheless said that such
a move should not affect State autonomy. Each State should determine for
itself the title, role and powers of the State Head of State and how that
person should be appointed and dismissed. It followed that it may be necessary
for specific provision to be made to enable States to retain the monarchy,
at least in the short term.
These
recommendations have been adopted in the Constitution Alteration (Establishment
of a Republic) Bill. In its transitional provisions, the Bill specifically
recognises that a State that has not altered its laws to sever its links
with the Crown by the time the office of Governor-General ceases to exist
retains its links with the Crown until it has so altered its laws. It
resolves the problem of the Australia Acts, by conferring power on the
Commonwealth Parliament to provide that the reference to the Governor
does not apply to a State which has altered its laws to sever its links
with the Crown.
It
follows that, if the links with the Crown are to be broken for the States,
as well as for the Commonwealth, each State must take the necessary action
to achieve this, and must decide for itself what arrangement to put in
place of a Governor appointed by the Queen. Questions also arise of whether
and how a move to a republic on the part of all Australian jurisdictions
is to be coordinated.
The
purpose of the Queensland Constitutional Convention is to consider the
options for the States if the Commonwealth referendum on a republic is
passed, the processes that the States might follow and some additional
associated questions. The agenda is organised under two broad themes,
each of which has been divided into four principal topics. The themes
and topics are described in more detail below: in general, however, the
first deals with amendments of State Constitutions, generally and with
particular reference to the question of a republic and the second deals
with the role of State Governor.
A
Convention is a deliberative meeting in which a diverse group of people
are encouraged to consider issues of current importance and, if possible
to reach broad agreement on them so as to produce clear guidelines for
future directions for governments and parliaments. Consideration of each
theme will begin in a plenary session, with a series of short addresses
to prompt ideas about issues and options. Thereafter, the participants
are divided into four working groups, each dealing with a different topic.
The objectives of the working groups are to consider the issues assigned
to them and to suggest possible responses to them, in the form of propositions,
for debate by the Convention in plenary session. When the Convention reconvenes,
the propositions from each working group are considered in turn. At the
end of the Convention, propositions that have been adopted are incorporated
in a final communique, for public release.
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CONVENTION
THEMES AND TOPICS
An outline of the two Convention themes and the topics within each
is set out below. No specialist knowledge is required or expected of participants.
Issues will be discussed at a level of general principle that should be
accessible to all interested Australians. A briefing paper, to be distributed
before the Convention, will provide useful background information. Technical
experts will be available during the Convention, should particular questions
arise.
Theme
1: The Republic, the States and the Nation
The subject matter of this theme is the amendment of State Constitutions,
generally and in relation to the republic, together with the related issue
of the constitutional preamble. The theme is divided into the following
four topics:
- If Australia
were to decide to become a republic, what are the options for individual
States?
The proposal to be put to referendum in November will leave individual
States to decide for themselves whether to break their link with the
Crown and, if so, how and when. This topic invites the working group
to consider the options open to the States. It is technically possible
for individual States to retain their links with the Crown. There may
be practical and symbolic implications of this course of action, however,
which the working group should consider. One possible complication,
presented by the proposed Constitution Alteration Bill, is that, until
the Commonwealth Parliament makes provision to the contrary, the most
senior State Governor will be the Acting President, if the President
is incapacitated or is removed. It would be possible for a Governor
representing the Queen to take over in these circumstances, but from
the standpoint of principle, it might be somewhat odd.
- What process
should be followed to deal with the republic at the State level?
The amendment procedures for State Constitutions differ from State
to State. The details are provided in the briefing paper. For present
purposes, however, it is sufficient to note that references to the Governor
in some State Constitutions can be altered only by a State referendum,
whereas in other States such an amendment would require only a vote
(usually by special majority) in the State Parliament.
Clearly, each State must follow whatever constitutional requirements
are prescribed for amendments of this kind. There are additional questions,
however, about how State decisions should be made in relation to a republic
and how any proposed changes to the State Constitution should be developed.
The Commonwealth, for example, held a Constitutional Convention. A public
information campaign is also proposed. Given the timing of the Commonwealth
referendum, there is a further question about when any State action
might take place.
- In general,
how should State Constitutions be changed?
The Commonwealth Constitution can be changed only when a proposed
amendment is passed by both Houses of the Commonwealth Parliament and
accepted at referendum by a national majority and by a majority of people
in a majority of States. Voting is compulsory. Under Commonwealth legislation,
a "yes" and "no" case is distributed to voters, prepared under the authority
of Members of the Parliament who voted for and against the proposed
change in the Parliament. In the absence of opposition to a proposal
in the Parliament, there will not be a "no" case. There is no Commonwealth
requirement for public information and education of any other kind,
although special provision has been made for the republican referendum.
State Constitutions are changed in a variety of different ways, ranging
from an ordinary Act of the State Parliament, through special parliamentary
majorities, to approval at referendum of changes proposed by the State
Parliament. In most cases, the amending procedure differs for different
parts of the Constitution, so that some parts are more heavily entrenched
than others. The issues raised by this topic concern the way in which
State Constitutions should be amended in the future. Should a more difficult
amending procedure be provided for parts of a State Constitution? If
so, for which parts? And what should the procedures be? What information
should be provided to the voters in each State, about changes to the
State Constitution, particularly if the changes must be approved by
the voters themselves, at referendum?
- Should State
Constitutions have preambles? If so, what should be in them?
A preamble is an introductory statement, which often comes at the beginning
of a Constitution, and sometimes at the beginning of important statutes
as well. A preamble has no direct legal effect, although it may be taken
into account in interpreting other parts of the Constitution, where
meaning is ambiguous or unclear. Partly for this reason and partly because
of its placement at the beginning of the Constitution, a preamble can
be used to make symbolic statements, which have special meaning for
the community for whom the Constitution was designed
Some State Constitutions have preambles. Mostly, however, these only
recite the history of the original enactment and subsequent development
of the Constitution. Over recent months, there has been wide public
debate about the form that a new preamble to the Commonwealth Constitution
might take. A separate question on the preamble is likely to be put
to referendum in November, if it passes the Commonwealth Parliament.
The issues that arise under this topic are whether State Constitutions
also should include a revised preamble and, if so, what the preamble
should say.
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Theme
2: The Republic and State Governors
The subject matter of this theme is the office of State Governor,
under both the State and Commonwealth Constitutions. While some of the
issues raised would need to be resolved in connection with a move to a
republic, some of the more general issues about how Governors should be
appointed and what they should do are relevant in any event.
- What should
be the role of State Governors?
In origin, State Governors were representatives of the Crown, when
the Australian States were still British colonies. In colonial times,
the Crown was a mechanism through which the British government could
control the actions of colonial governments and Parliaments. Those days
are long since gone. While the Governor still represents the Queen,
the only actions that the Queen performs in relation to the States are
to appoint or remove the Governor on the advice of the relevant State
Premier. Whether a State breaks its links with the Crown or not, there
is a question about the modern role which a Governor should play. For
a State which proposes to move to a republic, the future role of a Governor
logically should be considered before decisions are made about particular
powers or methods of appointment.
- What powers
should a State Governor have? Which of these should be able to be exercised
on the discretion of the Governor alone?
The British system of government and, by derivation, the Australian,
evolved gradually over centuries from a time when the monarch had considerable
substantive power. Transition to a constitutional monarchy and to democratic
rule was achieved, not by removing power from the monarch, but by expecting
it to be exercised on the advice of elected representatives. This approach
is reflected in Australian Constitutions, at both the Commonwealth and
State levels. All executive power still is held by representatives of
the Crown. It is almost always exercised on the advice of Ministers
however. Usually (but not always) the advice is conveyed formally to
the representative of the Crown at a meeting of an "Executive Council"
at which only two or three Ministers are present, apart from the Governor-General
or the Governor.
The rule that the Governor acts on advice is largely the result of constitutional
convention, or practice, rather than any written constitutional requirement.
It is qualified by a few instances in which the Governor has a discretion
and can act without or against advice. These are known as the reserve
powers. Again, these are the result of convention, rather than written
rules. One consequence is that the precise scope of the reserve powers
is uncertain. Most commentators agree, however, that a Governor may
be able to exercise a discretion in appointing a Premier after an election,
in deciding whether to accept advice to dissolve the Lower House of
the Parliament, when the Premier has lost the support of the House and
in dismissing a Premier who has lost the confidence of the Lower House
or, perhaps, is acting illegally.
This topic concerns both the formal powers which a Governor should have
and the circumstances in which a Governor should have a discretionary
or "reserve" power. In dealing with the issue of formal powers, the
working group may consider whether there is still benefit in exercising
executive power through a Governor, using the mechanism of an Executive
Council. In addition, one consequence of the current arrangements is
that the operative institutions of executive government, and in particular
the Premier and the Cabinet, are not mentioned in State Constitutions
at all. The working group may also wish to consider whether State Constitutions
should be more explicit in their treatment of institutions of government,
so as to make the Constitution easier to understand.
- How should State
Governors be appointed and removed under a republic?
State Governors presently are appointed by the Queen, on the advice
of State Premiers. Because a Governor represents the Queen, no term
of office is specified in State Constitutions. In practice, however,
the term generally is five years. If a Premier wished to remove a Governor
before the end of that period, however, the conventions of the constitutional
monarchy would require the Queen to act on the Premier's advice.
If a State broke its links with the Crown, it would be necessary to
decide how the person holding the office of Governor should be appointed
and removed, on the assumption that such an office is retained. Essentially,
the options for appointment are those which already have been canvassed
extensively in relation to the President:
- Appointment
by the Premier
- Appointment
by the Parliament (with or without a special majority)
- Direct election
The mechanism
for early removal of a Governor should be developed in the light of
the procedure for appointment. In the absence on an Upper House with
power to cause the dismissal of a government through the rejection
of Supply, the question of early removal of the Head of State is less
complicated in the State than in the Commonwealth sphere.
- Should State
Governors continue to play a role under the Commonwealth Constitution?
State Governors presently play a role under the Commonwealth Constitution
in two main areas:
- Governors issue
writs for Senate elections and are involved in filling casual Senate
vacancies. The rationale for this was the intended role of the Senate
as a House representing the States. In practice now, the writs are
issued when the Prime Minister decides to advise the Governor-General
to initiate the process for a Senate election, through co-operative
arrangements between the Commonwealth and the States. If filling
casual vacancies, the Governor acts on the Premier's advice or in
accordance with a parliamentary vote. The discretion of the States
in filling casual Senate vacancies has been significantly constrained
anyway, since 1977, by the requirement for vacancies to be filled
by someone from the same political party as the retiring Senator.
- The Constitution
provides for an Administrator to carry out the functions of the
Governor-General when the latter is not available for a prolonged
period. The Governor-General also may appoint Deputies to carry
out his or her functions from time to time, in the shorter term.
In practice, both the Administrator and the Deputies are chosen
from the ranks of State Governors. Generally, the most senior Governor,
in the sense of the Governor who has been in office for the longest
period, is appointed Administrator. The Governors most conveniently
located are called upon as Deputies from time to time. If the Commonwealth
breaks its links with the Crown, on the basis of the current proposals,
the most senior State Governor will be Acting President, until the
Parliament otherwise provides. The complications which this creates
for a State decision to retain its links with the Crown were noted
earlier, in relation to theme 1.
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