Gavin R. Putland,  BE PhD

Friday, March 06, 2015 (Comment)

Can the Australian Constitution be changed without a referendum?

The failure of the 1999 referendum on an Australian republic led to some debate on whether the Constitution could be changed (e.g. to establish a republic) without a referendum. One monarchist who feared that the answer was ‘yes’ was Nick Hobson DFC AFC, whose paper “Is our Constitution safe?” (or rather an earlier version thereof) came to my attention via the old On Line Opinion forum, where I posted a summary of his argument on 16 January 2001. Due to subsequent changes in the On Line Opinion website, that forum is no longer online. Meanwhile the question has arisen again on another email list. Accordingly, I publish a slightly edited version of my summary below.

The relevant parts of the Statute of Westminster (Imperial) 1931 are:

2. Validity of laws made by Parliament of a Dominion

(1) The Colonial Laws Validity Act, 1865, shall not apply to any law made after the commencement of this Act by the Parliament of a Dominion.

(2) No law and no provision of any law made after the commencement of this Act by the Parliament of a Dominion shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future Act of Parliament of the United Kingdom, or to any order, rule, or regulation made under any such Act, and the powers of the Parliament of a Dominion shall include the power to repeal or amend any such Act, order, rule or regulation in so far as the same is part of the law of the Dominion.

8. Saving for Constitution Acts of Australia and New Zealand

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 or the Constitution Act of the Dominion of New Zealand otherwise than in accordance with the law existing before the commencement of this Act.

If section 8 were absent, subsection 2(2) would allow the Federal Parliament to amend the Commonwealth of Australia Constitution Act (Imp.) 1900, which Act contains the Constitution.

The effect of subsection 2(1) is that the Federal Parliament is no longer bound as to manner and form; that is, if an Act is otherwise within the legislative power of the Parliament, then the Parliament's ability to amend that Act is not limited by any law made by that Parliament, or any other Parliament, purporting to prescribe the “manner and form” in which the Act may be amended.

Hence, if the Federal Parliament could discover a power to amend the Commonwealth of Australia Constitution Act (Imp.) 1900, other than the power conferred by the Constitution itself, then it could change the Constitution without using the “manner and form” prescribed in s.128 thereof — i.e. without a referendum.

The relevant part of the Australia Act 1986 is:

15. Method of repeal or amendment of this Act or Statute of Westminster

(1) This Act or the Statute of Westminster 1931, as amended and in force from time to time, in so far as it is part of the law of the Commonwealth, of a State or of a Territory, may be repealed or amended by an Act of the Parliament of the Commonwealth passed at the request or with the concurrence of the Parliaments of all the States and, subject to subsection (3) below, only in that manner.

“Subsection (3) below” is uncontroversial, merely confirming that the powers of the Federal Parliament can be extended by amending the Constitution through the usual referendum process.

On the basis of the above excepts, it is alleged that if one political party were to gain control of the Federal Parliament and all the State Parliaments, it could change the Constitution in the following manner: The Federal Parliament, with the request and consent of the State Parliaments as prescribed in subsection 15(1) of the Australia Act, repeals section 8 of the Statute of Westminster. With section 8 removed, subsection 2(2) of the Statute of Westminster gives the Federal Parliament an unfettered power to change the Constitution as it pleases, without the “manner and form” of a referendum.

As a result, Australians would live under a system of pure Parliamentary supremacy with no entrenched constitution — in other words, a British system of government. This scenario apparently terrifies monarchists.

If I have understood Wing Commander Hobson's thesis correctly, then I am obliged to admit that I cannot see any legal flaws in it.

But there is an insuperable political flaw: people don't like being caught out by the invocation of little-known rules. Remember Greg Chappell and that underarm ball? Remember the fate of the Progressive Conservative Party in Canada, after its leader used a little-known constitutional provision to stack the Senate and pass the GST? A similar fate awaits any Australian political party that changes the Constitution without a referendum, especially if that change has the effect of establishing a republic.

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