A PRIME MINISTER RUDD COULD REWRITE THE AUSTRALIAN CONSTITUTION WITHOUT A REFERENDUM

Much has been made of possible wall-to-wall Labor governments across Australia should the Labor Party win a majority of seats in the House of Representatives at the forthcoming Federal election. Some fear the possible increase in the GST which is currently set at 10%. Others have additional fears in respect of the Australian Constitution being legitimately changed without the holding of a referendum.

While any political mix of Federal and State Parliaments could accomplish the same thing, it is more likely for that to happen if all of the Federal and State Parliaments are controlled by a socialist conglomerate; the socialists are far more aggressive than the conservatives when making changes without consultation with the people!

But there is another aspect to this use of power.

It is also possible for an Act of the federal parliament to be passed at the request or with the concurrence of the six state parliaments to amend both the Australia Act 1986 (UK) and the Australia Act 1986 (Cwlth) to change Section 7 of both of those Acts relating to the powers and functions of Her Majesty and Governors in respect of the States so that the States could become republics.

No federal referendum would be required for this process; indeed, in 1999 all of the six states did exactly that but because the commencement date of those six Acts was tied to the result of the republic referendum and because the republic referendum failed, the six state Acts had no effect. Since then, some of those state Acts have been repealed. There is nothing in law that would prevent this from happening again even if it were not tied to the outcome of a future federal republic referendum. In other words, we could find ourselves one morning with six state republics without the people ever being consulted!

But a more alarming aspect and potential time bomb is that, and by a similar process, an Act of the federal parliament can be passed at the request or with the concurrence of the six state parliaments to amend the Statute of Westminster 1931.

When the Statute of Westminster 1931 was being drafted additional provisions were inserted in the Statute to safeguard the position of the states of Australia.

In Section 8 of the Statute, it was provided that 'nothing in this Act shall be deemed to confer any power to repeal or alter the Constitution or the Constitution Act of the Commonwealth of Australia otherwise than in accordance with the law existing before the commencement of this Act'.

In 1999, there was an attempt to amend Section 8 of the Statute of Westminster to provide that "Nothing in this section prevents the amendment of the Commonwealth of Australia Constitution Act by omitting the Preamble or by repealing sections 2 to 8. This would have left the Constitution Act of the Commonwealth of Australia containing only Clause 1 (Short Title) and Clause 9 (The Constitution of the Commonwealth).

Because there was no unanimity between the six States the proposal was abandoned.

Section 128 of the Constitution states that 'This Constitution shall not be altered except in the following manner'. That said, one might presume that the procedure for change detailed in Section 128 of the Constitution was the only way that the Constitution could be amended. Additionally, some would claim that while Section 15(1) of The Australia Acts could be used to allow amendment of the Constitution Act of the Commonwealth of Australia, the same provision would not allow for amendment of the Constitution itself!

Now, the Australia Act 1986 (Cwlth) gained its authority from Section 51 (xxxviii) of the Constitution.

This power lets the Commonwealth, in co-operation with the States, do anything for Australia which only the United Kingdom could do at the time of federation.

At the time of Federation, the United Kingdom could have amended the Constitution Act of the Commonwealth (which includes the Constitution) because that Act was an Act of the United Kingdom.

A High Court judgement summarises the effect of s 51 (xxxviii) of the Constitution as it was interpreted in Port MacDonnell Professional Fishermen's Assn Inc v South Australia (1989) 168 CLR 340 thus: 'The effect of s 51 (xxxviii) is to empower the Parliament 'to make laws with respect to the local exercise of any legislative power which, before federation, could not be exercised by the legislatures of the former Australian colonies'. It represents an actual enhancement of the legislative powers of the States because 'it confers, by implication, power upon the Parliament of a State to participate in the legislative process which the paragraph requires, namely request (or concurrence) by a State Parliament and enactment by the Commonwealth Parliament'. There is a potential enhancement of State legislative powers because the Parliaments of the States are the potential recipients of legislative power under a law made pursuant to the paragraph. Any room for an inhibition against giving to the grant in s 51 (xxxviii) its full scope and effect by reason of what was once the status of the Commonwealth itself within the British Empire no longer applies'.

The Australia Act 1986 (UK) is a British statute. It is a fundamental or higher law which prevails over ordinary laws and it cannot be altered by any one Australian legislature acting unilaterally. Its force in Australia now must rest on the authority of the Australian legislatures empowered to alter the Act under S15 of the Act.

This Act has its source in the Statute of Westminster (section 4 of the Statute was then available) and was passed in case the Australia Act 1986 (Cwlth) was found to be invalid.

Because the Australia Act 1986 (UK) is a higher law and because the High Court of Australia has found that 'any room for an inhibition against giving to the grant in s 51 (xxxviii) its full scope and effect by reason of what was once the status of the Commonwealth itself within the British Empire no longer applies' it would seem self-evident that the collective force of the Federal and State Parliaments could amend the Australian Constitution without holding a referendum.

The following quote from the late Richard McGarvie's book "Democracy; choosing Australia's republic" provides a profound summary: 'With the power from the Australia Acts, the Commonwealth Parliament, by Acts supported by the state Parliaments, can amend the Statute of Westminster that precludes it from amending the Commonwealth Constitution, the covering clauses or the preamble'.

Richard McGarvie was a former Supreme Court Judge and Governor of Victoria.

For further information on this subject read Is Our Constitution Safe?