Parliament of Australia: Senate: Constitution – Preamble

Commonwealth Of Australia Constitution Act

(Preamble)

An Act to constitute the Commonwealth of Australia. [9th July 1900]

(The Commonwealth of Australia Constitution Act 1900 is an Act of the Parliament of the United Kingdom at Westminster)

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:–

1. 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 [until the 31st of December 201X. Thereafter, the provisions of this Act and of the Constitution of the Commonwealth of Australia referring to the Queen shall extend to the Australian individual nominated and elected by the Australian people under Section 129 to serve one term as head of state].

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 that 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.

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.

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.

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.

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.

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.

9. The Constitution of the Commonwealth shall be as follows:–

[Continue to Chapter One]

Parliament of Australia: Senate: Constitution – Preamble. [with my provisional proposed amendment in blue]

This is a proposed change to the Second Covering Clause that would enable an elected Australian to become head of state with minimal changes to the Constitution. The details of the election process for the head of state would have to be set forth in a new Section of the Constitution, currently with 128 Sections, and this new Section would need to be approved by the Australian people in a referendum under Section 128. You would not need to modify any part of the current Constitution proper. The change in the Second Covering Clause can not be done solely through a Section 128 referendum, but would presumably require the Commonwealth Parliament and all the state and territory governments to pass legislation to put that kind of change into effect as well. It might also need a majority vote in a referendum in every state rather than in a majority of states.

The ‘Queen’ in our Constitution refers to none other than Queen Victoria – the person herself. The second Covering Clause is the basis for our Constitutional monarchy. It specifies how the role of Queen Victoria in our Constitution would be filled once she dies, as she did only a few weeks after Federation on 22 January 1901. Make an amendment to the Second Covering Clause and put the details for electing an Australian head of state into a new Section of the Constitution – and have it all passed by referendum – and we have made the transition to a republic. And Queen Victoria can still retain her spot on the books…

By analogy with procedural computer programming code, the word ‘Queen’ in our Constitution could be understood as a symbolic variable (with “Queen Elizabeth II” being the current value) while the second Covering Clause provides a reference to the process of how to set that variable. It is a term that first referred to a particular person who was the head of state at the time of Federation, Queen Victoria. Since then it has been the Second Covering Clause that has maintained the link with the monarch of Great Britain also being the head of state for Australia. The Statute of Westminster 1931 introduced the idea that the Crown is divisible. The Australia Acts 1986 severed any other judicial and legislative ties to England. Now all that remains is for us to define our own way of selecting our head of state, agreeing to those changes in a referendum and then placing those procedures in the Constitution where they can not be easily meddled with. The word ‘Queen’ in our Constitution can also be used as a symbol for republican heads of state who are directly elected in regular elections – even if most republicans would baulk at that proposition. I think that would be of value in an Australian republic since it would reinforce the need for the head of state to follow convention. Most people would agree that Queen Elizabeth II is a responsible head of state. I know that these ideas are unconventional.

To restate a proposed and provisional change to the Second Covering Clause:

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 [until the 31st of December 201X. Thereafter, the provisions of this Act and of the Constitution of the Commonwealth of Australia referring to the Queen shall extend to the Australian individual nominated and elected by the Australian people under Section 129 to serve one term as head of state].

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22 June 09

By the way, this approach was first expressed publicly in my submission to the Senate Inquiry into an Australian Republic over five years ago. At the time some people thought it was a hoot. To quote from page 4 of the submission:

A proposed model can be summarised as follows:

No changes are made within the current Australian Constitution as it is, except for a change to the second Covering Clause; “The provisions of the Act referring to the Queen shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom.”

Additional sections are added to the Constitution to formalise a democratic and egalitarian method for selecting an Australian to act as the “Queen of Australia”. The process for selecting the Head of State would recur at regular time intervals always with new candidates, thus abandoning the hereditary origin of the office.

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24 June 09
Another possibility is that the additional section to define the election process for the head of state in an Australian Republic could be passed in a standard referendum but the change to the second covering clause fails. In such a state we would still have the monarch of Britain as our head of state until a referendum is passed to change the second covering clause, or a second possibility is that the Commonwealth of Nations with the Queen as their head of state get together – perhaps due to a crisis with the monarchy – to change the rule for succession to the Crown. If such a process were to happen, in line with the Statute of Westminster, Acts of parliament in all the states and the Australian Commonwealth would probably be enough to match the domestic situation with what has happened in the Commonwealth of Nations, so that the divisible Crown is no longer united by the one person, the monarch of Britain. That possibility is drawing a longbow. It would mean that the remaining countries of the Commonwealth of Nations with the monarch as head of state would simultaneously institute a republican head of state for their own countries while retaining the Crown. The republic debate in Australia might influence the course of the debate in other Commonwealth nations as well.