Unread postby lazerzap » Thu Jan 02, 2014 8:34 pm

There are other views on these acts. The late Richard McGarvie believed that the Australian Parliament, at the request of or with the concurrence of all the State Parliaments, can now amend or repeal the Constitution Act or The Constitution.[67] This assertion is confirmed in Mr McGarvie's book DEMOCRACY - choosing Australia's republic.[68]

Legal language is also a source for discussion and interpretation in respect of the Australia Acts. In his advice to the Republic Advisory Committee[69], Dennis Rose uses the words 'Épower to repeal or amend Section 8 of the Statute of Westminster to the extent necessary for the purpose of repealing or amending the preamble or covering clauses of the Constitution ActÉ' It could be argued that the use of the words 'extent necessary' could also allow for a wider interpretation than that indicated if there was a desire or need to do so.

Accordingly, this approach could possibly assume a greater extent of power to repeal, in toto, the Constitution Act or the Constitution itself.

Professor George Winterton[70] has also indicated that the preamble and the covering clauses of the Constitution Act could be amended or repealed either by Commonwealth legislation enacted at the request, or with the concurrence, of all state parliaments pursuant to s 15(1) of the Australia Act 1986 (UK) or pursuant to s 51(xxxviii) of the Constitution; the latter being subject to the Constitution. If the latter is stated as being subject to the Constitution then it must be implicit that the former is not. Indeed, the Australia Act 1986 (UK) is a British statute and is a fundamental or higher law which prevails over ordinary laws.[71] However, when the Constitution (Requests) Bill 1999[72] was introduced into the Queensland Parliament it was not only done so pursuant to both of the Australia Acts (Cth and UK) but also pursuant to the section 51(xxxviii) of the Constitution. It would appear from this diversity of views, that there is considerable scepticism within the constitutional legal fraternity about the scope of the powers of the Australia Acts.

There is argument that s 128 (of the Constitution) may, by inference, have been itself restricted in operation by the British Act.[73] Although, as a practical matter, it might be said, it is unlikely that any amendment to the Australia Act would ever be sought.[74] However, there is now evidence that the argument that any amendment to the Australia Act would not be sought is now void.

In 1999, the New South Wales Parliament enacted legislation[75] - in accordance with Section 15 (1) of the Australia Acts - requesting the Commonwealth Parliament to amend both the Australia Act 1986 (Cth) and the Australia Act 1986 (UK) to add the following at the end of section 7 of each of those Acts:

(6) The Parliament of a State may make a law providing that the preceding subsections do not apply to the State.

(7) Upon the coming into effect in a State of a law referred to in subsection (6), this section ceases to apply to the State as provided by that law.
In other words, the additional sub-paragraphs to section 7 would allow for the any or all of the States to become republics in their own right with or without a Commonwealth referendum.

Similar legislation was enacted in all of the other 5 States. As well as providing for the changes outlined above, these Acts also provided for the commencement day to be fixed by proclamation. That day could not be before the day on which the Constitution Alteration (Establishment of Republic) 1999 [76] received Royal Assent. Because the 6 November 1999 republic referendum failed to gain the approval of the Australian people, that Act could then not receive Royal Assent.

Accordingly, each state Act requesting the Australia Acts 1986 (Cth) and (UK) be amended was left in limbo. In 2000, New South Wales[77], Queensland[78] and South Australia[79] repealed their respective Australia Acts (Request) Act 1999. Victoria, Western Australia and Tasmania have not repealed their respective Australia Acts (Request) Act 1999. Additionally, Western Australia[80] and Tasmania[81] have indicated that there are no current plans to repeal these Acts.

However, nothing in law is immutable.[82] Technically, there would be nothing to stop Victoria, Western Australia and Tasmania from amending their respective request Act to alter the commencement date to another date in the future and for New South Wales, Queensland and South Australia to re-introduce similar legislation - with the same commencement date as that of the other three States - without the will of the Australian people.

Most Australians only have a scant knowledge of their Constitution. At most, it might be said that just under one in five Australians have some idea of what the Constitution contains while just over one in two Australians are aware that we have a written Constitution at all.[83] If most Australians do not understand their Constitution itself, then, it would not be too hard to visualise that most voters were probably not aware of the proposed changes to both of the Australia Acts prior to the 6 November 1999 republic referendum.

Accordingly, it wouldn't be too difficult to contemplate a future and 'silent' attempt to re-introduce such changes.

For example, in 2000 the New South Wales Parliament amended the Constitution Act 1902.[84] Section 13A of that act was amended in relation to the vacation of seats of Parliament following conviction for certain offences. The Bill relating to this Act travelled at break-neck speed. It was introduced in both the Legislative Assembly and the Legislative Council on 7 June 2000 and sent to the Governor on 8 June 2000 who assented to it "in the name and on behalf of Her Majesty" on 9 June 2000! The assent thereof was reported in the New South Wales Legislative Assembly on the same day.

Of course, it will be argued by some that, because this part of the New South Wales Constitution is not subject to referendum, it is just simply an administrative change to be implemented by the Parliament alone. Not many people would understand this quaint anachronistic arrangement given that any Incorporated Association or Company can only change its rules by a vote of all its members at a special general meeting. The New South Wales voters have no control over these and other aspects of their state Constitution; only a few sections are subject to referendum process. Fundamental rules about the acquisition of public power cannot confidently be left to those who presently hold power or who have regular prospects of doing so.[85]

Up until the enactment of the Constitution (Parliamentary Reform) Act 2003, the situation in the state of Victoria was even less democratic because the Constitution of that state was not subject to any referenda requirements at all. Victoria could not alter the constitution of its Parliament, or either House, at that time unless the amending bill was passed by an absolute majority in each House.[86] Given this, and a possible scenario of further action under the Australia Acts similar to the one conducted in 1999, the people of Victoria could find themselves with a Constitution that, while they may not wish to acquiesce to by 'popular sovereignty', they are blindly forced to accept without having given opinion. That said, the Constitution (Parliamentary Reform) Act 2003 now provides for important core provisions to be changed only after the Victorian people vote at a referendum. This requirement does not extend to Part 1 of The Constitution Act 1975 which deals with the Crown. Nor does it apply to Section 15 of that Act which describes the Victorian Parliament as consisting of Her Majesty, the Council, and the Assembly. Accordingly, and despite those democratic enhancements, the Victorian Parliament alone could, with appropriate changes made to the Australia Acts, turn that State into a republic without the will of the people.

Such parliamentary luxuries may even be more detrimental to Australia's democracies in respect of the Australia Acts if all Australian legislatures were under the control of one political party.
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