[Home] [Help] [Databases] [WorldLII] [Feedback]
	University of NSW Law Journal

The lasting achievement of the Constitutional Convention was to refocus the Republican debate away from emotive issues and centre it upon questions of Constitutional law. Whilst the Convention resolved on a method of appointment and dismissal on which to base a Republican model, there were a number of loose ends which the Convention did not satisfactorily resolve. The loose end which will plague the formation of an Australian Republic is the question of whether the referendum needs to be carried in four or six of the States to conform with s 128 of the Constitution. If the referendum is carried in four of the States, a Constitutional challenge may be launched by States where a majority was not obtained. This article seeks to review the founders' intentions on this subject and argues that this would be an important occasion for the High Court to reconsider its stance on advisory opinions.

Despite a day of debate being set aside to consider the implications for the States in a move to a Republic, only cursory attention was paid to the question of the necessary majorities in s 128. Of those who did make mention of this question, Michael Lavarch[1] and Jeff Shaw[2] said that the argument favouring a majority in all States was based on "misinterpretation" of s 128. Tom Keneally acknowledged that it would be "great" if a majority was passed in all States and that it "would be wonderful for our moral authority in passing as a federal community to a Commonwealth Republic."[3] Those arguing for six States either argued it on the basis of moral authority and symbolic symmetry,[4] or on legal reasoning[5] grounded in the Preamble and the monarchical nature of the compact. However, despite the importance of the issue the debate at the Convention on this aspect of s 128 was superficial and brief.

The argument concerning the validity of an alteration to the Constitution, where majorities in a referendum are only obtained in four States as against six, centres around an interpretation of the fifth paragraph of s 128, which states:

No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of electors voting in that State approve the proposed law. [emphasis added]

In determining this issue, two matters must be resolved. First, whether the Crown is fundamental to the Constitution. Second, whether the meaning of
s 128 is to be read broadly in terms of the spirit of the document or whether it is to be given its most narrow construction. Whilst these matters have been well argued elsewhere,[6] what has not been substantialy considered is the intentions of the founders.

The major difficulty interpreting the fifth paragraph of s 128 has been the lack of clarity of the intentions of the founders. The controversial fifth paragraph was added at the Premiers' Conference in February 1899. The conference was convened at the instigation of Sir George Reid, the Premier of New South Wales. On 31 August 1898 Reid introduced a series of resolutions into the New South Wales Parliament which became known as the Australasian Federation Resolutions paragraph (d) of which read:

The boundaries of the states, concerning which this House desires to submit for the consideration of the other colonies that better provision should be made against the alteration of the boundaries of a state without its own consent - namely, by the protection afforded by clause 127, as to the Representation of states.[7]

Reid assured the Parliament that the intention of this resolution was to "be as prudent with regard to the boundaries of New South Wales as the other colonies are with regard to their proportionate representation."[8] The previous unsuccessful draft of clause 127 had given protection to the proportionate representation of States in the Parliament by requiring that:

An alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, shall not become law unless the majority of the electors voting in that State approve the proposed law.[9]

Reid was attempting to extend this principle to the question of boundary alterations. The resolution passed both Houses of the New South Wales Parliament on 1 December 1898.[10]

One curious point that needs to be noted concerns the debate which occurred in the Legislative Assembly Mr Dacey said:

You are now trying to preserve those powers which have been left to the States - to secure them to the states in such a manner that they shall not be taken away without their consent. That is in regard to boundaries. Why should not that extend to every other function and power not given up by the State legislature just as well as to the question of boundaries?[11]

To which Reid interjected "Quite right!".[12] Perhaps the infamous and ambiguous line in s 128 was added by Reid, in the hope that the clause would one day be read in the manner which would protect all of the States' rights, as Dacey had suggested. If this was Reid's intention, he did not make it plain to the other Premiers. For after the Premiers Conference the debates which occurred in the various colonial Parliaments viewed the addition in question to be solely concerned with alteration of boundaries.[13]

No records of the debates or discussions exist of that Conference. Only one unanimous Statement of decisions was published.[14] The South Australian Premier remarked that the deliberations were closed to the press and public because the Premiers were not there to make "eloquent orations" and that there was a need to "secure a candid interchange of views".[15] An added interpretive difficulty arises as it is uncertain whether the Conference had the assistance of a draftsman.[16] All this aside, there appears to be no record of any debate of the words "or in any manner affecting the provisions of the Constitution in relation thereto". The only conclusions that can be drawn from the Parliamentary debates and subsequent biographical work[17] is that the reason for and purpose of the amendment of s 128 by the Premiers Conference was to stop alteration of boundaries without the consent of the electors of the State affected.

Given the historical records which exist, it would seem the intention of the founders in the phrase "in any manner affecting the provisions of the Constitution in relation thereto" refers only to the matters specifically canvassed in the paragraph ie: changes in representation or geographical boundaries. There now appears to be two new avenues[18] of argument for those advocating a need for majorities in all States. First, there is still no clear and definitive view of the intentions of the founders in the meaning of the sentence "or in any manner affecting the provisions of the Constitution in relation thereto". Research has only proven that the additions made were for the question of boundary alterations yet there was no record of discussion of the specific language of the final sentence. The meaning of the phrase "in relation thereto" remains ambiguous.

The second argument that can be mounted is that through the passage of time it has been accepted that s 128 has acquired the broader meaning. In McGinty v Western Australia[19] McHugh J stated:

....where an alteration of the Constitution would in any manner affect the provisions of the Constitution in relation to a State, s 128 of the Constitution provides that the alteration shall not be valid unless the majority of electors in the State concerned approved the proposed alteration.[20]

Gummow J similarly states that paragraph five envisages three classes of referenda: diminishing representation; altering limits, or; "`in any manner' affecting the provisions of the Constitution in relation to a State".[21]

Manning Clark said "Men make their own history more wisely when they know what that History has been about."[22] Yet the history of the formation of the disputed phrase in s 128 sheds little light on the issue. If the Australian people pass a referendum and obtain a national majority and a majority in four States, the governments of the States where the referendum failed to pass may take the issue to the High Court to seek declarations that the referendum result is not binding. In this scenario the High Court is placed in an invidious position. If it decides to make those declarations it would be forced to ignore the will of the majority of people, and the majority of people in four States. Conversely if it did not make those declarations it would be forcing the two remaining States into a federal republic that they did not want - it would be ignoring the sovereignty of the people of those States. The republic debate has been a divisive one. The worst scenario for republicans who argue that a republic will bring Australians together[23] is a High Court challenge that will tear Australians apart. The most sensible solution seems to be a reconsideration of the High Court's position on "statutory provisions enabling it to give advisory opinions".[24] Unfortunately there is not the room here to go into a discussion on In re Judiciary and Navigation Acts.[25] However, according to some commentators there has been a renewed interest in advisory opinions on the bench.[26] This is a situation where an advisory opinion would be beneficial for the maintenance of the stability of the nation. The High Court could then resolve this matter before a referendum occurs.

[*]Law student at the University of New South Wales. At 21, the youngest elected delegate at the Constitutional Convention, (No Republic - Australians for Constitutional Monarchy). I wish to acknowledge the assistance of: The Hon. Jack Lee AO, Professor George Winterton; and Mr Roy Jordan and Mr Bill Tully of the Australian National Library, Canberra.

[1] Constitutional Convention Transcript of Proceedings, 11 February 1998, p 473.

[2] Ibid, p 485.

[3] Ibid, p 494.

[4] See for example, Knight, ibid, p 474; Beanland, p 490.

[5] See for example, McGarvie, ibid, p 475; O'Farrell, p 487; Flint, p 488, and; Panopoulos, p 491.

[6] See for example T Blackshield, "Where To Now, After the Convention?" Australian Financial Review, 16 February 1998, p 13; G Burton, Republican Proposals and the Constitution, unpublished paper prepared for Australians for Constitutional Monarchy; H Gibbs, "The Australian Constitution and Australian Constitutional Monarchy" in M Stephenson and C Turner (eds), Australia, Republic or Monarchy?: Legal and Constitutional Issues, University of Queensland Press (1994); K Handley, Some Legal Aspects of Republicanism, presented at Australian Law Teachers' Association Conference, Hobart 1994; J Lee, A Glimpse of the Minefield to Republicanism and the Way Around, submission to the Republic Advisory Committee 1993; contra: JE Richardson, "In the Matter of Section 128 of the Constitution", in Standing Committee B Report to the Executive Committee, 1 August 1974, Australian Constitutional Convention 1975; Republic Advisory Committee, Report of the Republic Advisory Committee, Vol 1, 1993; G Winterton, "The States and the Republic: A Constitutional Accord? (1995) 6 PLR 107.

[7] GH Reid in New South Wales Parliamentary Debates (first series) 18th Parliament, Session 1898, Vol XCV, 13 October 1898, pp 1439-1440.

[8] Ibid, p 1143.

[9] Statement of Decisions of the Premiers Conference, Melbourne 1899, Government Printer (1899).

[10] New South Wales Parliamentary Debates, supra, note 7, p 2795.

[11] Ibid, p 1444.

[12] Id.

[13] See for instance: Debates in the House of Assembly during the third session of the fifteenth Parliament of South Australia, JL Bonython and Co, 1899, p 1224; Victoria, Parliamentary Debates Session 1899-1900, Vol XCI, Government Printer, 1900, p 99; Queensland, Official Record of the Debates of the Legislative Council and the Legislative Assembly during the first session of the fifteenth Parliament, Vol LXXXI, Government Printer, 1899, pp 64-65. [Tasmania did not begin recording its parliamentary debates until the 1980s. Western Australia and New South Wales did not elucidate the matter further.]

[14] Statement of Decisions of the Premiers Conference, note 9 supra.

[15] South Australia, note 13 supra, p 1222.

[16] Sir Robert Garran notes in Royal Commission on the Constitution of the Commonwealth: Report of Proceedings and Minutes of Evidence Pt I, Government Printer (1929), p 66, that "the conference of Premiers did not have a draftsman with them [and that this part of s 128's] drafting is very unsatisfactory indeed". JA La Nauze in The Making of the Australian Constitution, Melbourne University Press (1972), p 243, notes that a lawyer by the name of Cullen accompanied Reid to Melbourne and that Garran's statement to the 1929 Royal Commission was made because Garran had no confidence in Cullen. Yet La Nauze acknowledges that the identity of the draftsman (if one exists) is unknown with only Charles Kingston of South Australia claiming the dubious honour.

[17] See for example, RR Garran, Prosper the Commonwealth, Angus and Robertson (1958), pp 30-31; A Deakin, The Federal Story: The Inner History of the Federal Cause 1880-1900, Melbourne University Press (1963), p 102; GH Reid, My Reminiscences, Cassel and Co Ltd (1917), p 77.

[18] Notwithstanding arguments about compact and Preamble, see note 6 supra.

[19] (1996) 186 CLR 140.

[20] Ibid at 237.

[21] Ibid at 275.

[22] CMH Clark, A History of Australia, Vol 5, Melbourne University Press (1981), p 427.

[23] See for example, M Turnbull, The Reluctant Republic, William Heinemann (1993), p 265.

[24] S Cranshaw, "The High Court of Australia and Advisory Opinions" (1997) 51 ALJ 112 at 205.

[25] (1921) 29 CLR 257.

[26] J Williams, "Rethinking Advisory Opinions" (1996) 7 Public Law Review 205. Williams makes reference to North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 where Kirby J comments at 666 "there has been a substantial development in the understanding of what the judiciary in Australia may properly do in discharging its proper functions".