The Constitution as an Act of the People of Australia

by John Pyke, Queensland candidate for the Constitutional Convention

As I noted in Constitutional Alterations for a Real Republic, the preamble and the enacting words that give the Constitution the force of law are not in the Constitution itself but in the United Kingdom Act called the Commonwealth of Australia Constitution Act which "frames" the Constitution. Then there are eight "covering clauses" - most of these are expired but some are still important, like the first part of clause 5 which gives the Constitution its status as superior law, and the definitions which are stated in clause 6. [These could just as readily have been placed in the Constitution itself, but thanks to a whim of the drafters they were not.]

The Constitution of an independent republic, however, ought to make it clear that it is an enactment of the sovereign People of the republic. I consider the attempts of the drafters of the minimalist proposals to amend the preamble, enacting words, and covering clauses quite unsatisfactory, for two reasons:

section 128 refers to amendment of "This Constitution", which on its face does not include the "framing" Act. Whether the Commonwealth Parliament has power, by itself or with the support of a referendum, to directly amend the "framing" Act is highly debatable - instead, it should probably first get us to give it, by the section 128 process, a specific power to amend the Constitution Act, and then pass the amendments. [See the Appendix by Enid Campbell to the Report of the #####, and my paper published in ALTA 1994; Proceedings of the 49th Conference of the Australasian Law Teachers' Association - but these will be hard to find except in University Law Libraries.]
Even if we can amend the preamble/enacting words/covering clauses, it seems a bizarre thing to want to retain the present style in which "The Constitution" is set inside some "framing" document, section 9 of which says "The Constitution... shall be as follows:-". Everything that is worthy of being in the Constitution - including some enacting words that say something like the American "We the People ordain and establish this Constitution..." - should be in the Constitution!

I have come to the conclusion that we do not even have to bother about amending the words of the "framing" Act. We should simply add our own preamble, enacting words, and "supreme law" and definition sections inside the Constitution. This would amount to a re-enactment of the Constitution by the Australian People, floating it free of the British Act which brought it into being in 1901. [Constitutional theorists who are under Hans Kelsen's spell could debate forever whether this amounts, in his terms, to a "revolutionary break" or simply an amendment authorised by the existing Constitution, but in the end the effect would be the same - the new version of the Constitution would be accepted as binding and effective.] The United Kingdom Commonwealth of Australia Constitution Act would remain an important part of our Constitutional history, but its significance would be only historical

So the words suggested below are to be added where at present the heading "THE CONSTITUTION" appears, in what is, at the moment, technically the beginning of section 9 of the "framing" Act:

THE CONSTITUTION OF THE COMMONWEALTH OF AUSTRALIA

WHEREAS this Constitution of the Commonwealth of Australia was once seen as having legal force only because it had been enacted into law by the Parliament of the United Kingdom as part of an Act of that Parliament,

but whereas it has always been also an Act of the People, in that it was drafted by delegates of the people of the Australian colonies, was approved by a majority of the people of each of the colonies, and could not be amended without approval of the electors in accordance with section 128,

and whereas Australia is now an independent sovereign nation and it is appropriate to declare that its Constitution has a purely local source of validity,
[I see this as a transitional preamble, to replaced possibly within a few years by something that is more of a statement of national identity and aspirations. But I think it might take some time to agree on the drafting of such a statement, and a more legalistic preamble like the one above would serve a purpose for the first few years of the republic, in stating our intention to re-enact the Constitution as an Act of the People.]

WE THE PEOPLE of Australia

[further "preamble"-type provisions, such as "united in an indissoluble Commonwealth...", "acknowledging the equality of all under the law...", as in the Turnbull draft could be inserted here.]

declare this Constitution, as amended from time to time in accordance with the provisions of section 128, to be the Constitution of the Commonwealth of Australia, and binding on the governments and people of Australia, of its own force, by virtue of its adoption by ourselves, the people of Australia.

[Then the Table of Chapters and Parts would remain (with the addition of some new Chapters and Parts). Then the following new Chapter would be inserted:]

Chapter IA - General Principles

1. Constitution the Supreme Law
This Constitution is the supreme law of the land, and is binding on the courts, judges and people of every State and every part of the Commonwealth. Any purported Act of any legislature, any executive action, or any judicial decision is utterly void to the extent that it is contrary to this Constitution.
["Supreme law of the land" is from the United States Constitution. The "binding on the courts, etc" phrase is from covering clause 5. The second sentence spells out the consequences of the Constitution being binding supreme law, in case some cannot work it out for themselves. Calling this s.1 assumes that the current s.1 (legislative power vested in the Parliament) will be restated as s.4, the present ss. 2-4 having been replaced by new provisions dealing with the President as shown in Powers and Functions of the President.]

2. Definitions.
[Largely a re-enactment, with some simplification, of the present covering clause 6.]
In this Constitution,
"The Commonwealth" means the Commonwealth of Australia as established under this Constitution;
"Institutions for Fairness and Honesty in Government" means

the Australian Electoral Office,
the Commonwealth Auditor-General and Office, the
Commonwealth Ombudsman and Office,
the Human Rights and Equal Opportunity Commission [or Human Rights and Responsibilities Commission], and
any other body declared to be such an institution by Act of Parliament;

[See Protection for Bodies that Might Have to Annoy the Executive for the purpose of this definition]
"Member of Parliament" means a member of the House of Representatives or a senator;
[Adding this will simplify many sections which presently refer to " a senator or member of the House of Representatives"]
"Original States" means the States of New South Wales, Queensland, Tasmania, Victoria, Western Australia and South Australia;
"The States" means the Original States, and such territories as may be admitted into or established by the Commonwealth as States.
[These last two definitions have been tidied up to include the late entrant, Western Australia, by name among the original States.]

Then new sections 3 and 3A relating to Land and Citizenship would follow, and then, as s.4, a redrafted version of the current section 1, defining the Parliament - see Powers and Functions of the President.

Back to: Constitutional Alterations for a Real Republic

Written by John Pyke, 8 November 1997