Constitutional amendment Recent constitutional developments Thinking about constitutional
Constitutional amendment Recent constitutional developments Thinking about constitutional reform Bede Harris CENTRE FOR LAW AND JUSTICE
Section 128 - The Australian Constitution Mode of altering the Constitution Section 128 provides that the Constitution shall not be altered except by way of a proposed law for its alteration being: Passed by an absolute majority of both Houses of the federal Parliament, or by one House twice; and Passed at a referendum by a majority of the people as a whole, and by a majority of the people in a majority of the States. CENTRE FOR LAW AND JUSTICE
Changes requiring the consent of a particular State A majority of voters in an affected State are required to approve changes: 1. ‘diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives [currently set at five] of a State in the House of Representatives’; 2. ‘increasing, diminishing, or otherwise altering the limits of the State’; and 3. ‘in any manner affecting the provisions of the Constitution in relation thereto’ (that is, in relation to the State). CENTRE FOR LAW AND JUSTICE
History of proposed alterations - The text of the Commonwealth Constitution remains almost completely the same as it was in 1901 - forty-four proposals to change the Constitution. Only eight have succeeded - The last successful referendum was held in 1977 CENTRE FOR LAW AND JUSTICE
Most recently: An Australian Republic? - The Constitution establishes Australia as a constitutional monarchy. - 6 November 1999 - Australians asked to establish the Commonwealth of Australia as a republic - Flawed proposal – President would be chosen by Parliament, not by popular vote; PM could still dismiss President. - Resounding ‘no’ response nationwide and in all jurisdictions except the ACT CENTRE FOR LAW AND JUSTICE
Recent controversy – s 44 - Section 44 contains five prohibitions on eligibility to being chosen for election or to sit as an MP or Senator: (i) Foreign citizenship (ii) Treason (iii) Bankruptcy (iv)Holding office of profit under the Crown (v) Having an interest in a contract with the Cth. CENTRE FOR LAW AND JUSTICE
Process - Disputed results can be heard on petition to High Court under s 353 of the Commonwealth Electoral Act 1918 (Cth) – eg by a candidate or voter. - But once a person is a member, houses have jurisdiction under s 47 of Constitution to hear cases. - Practice is to refer them to High Court under s 376 of Commonwealth Electoral Act – but process hostage to politics. CENTRE FOR LAW AND JUSTICE
Cases on s 44(i) - Basic principle enunciated in Sykes v Cleary (No 2) (1992) 176 CLR 77 - A person wishing to renounce a foreign citizenship must take ‘reasonable steps’ to do so according to the law of the other country, before nomination. - Spate of revelations of foreign citizenship in 2017 led to Re Canavan; Re Ludlam; Re Waters; Re Roberts (No 2); Re Joyce; Re Nash; Re Xenophon [2017] HCA 45. CENTRE FOR LAW AND JUSTICE
- HC said that only exception is where ‘the operation of the foreign law is contrary to the constitutional imperative that an Australian citizen not be irredeemably prevented by a foreign law from participation in representative government’. - Court said that it would not be reasonable to require a person to return to a country if its law required that renunciations must take place on its territory and that would expose the person to danger, although the person must take all such steps as it is possible for them safely to take. CENTRE FOR LAW AND JUSTICE
- HC held that s 44(i) captures both those who voluntary obtain foreign citizenship (‘acknowledgement’) and those who as a matter of fact (ie irrespective of intent) are entitled to it. - Whether a person knows they are a citizen of a foreign country is irrelevant. - To escape s 44(i), a person must take such reasonable steps as are within their power to divest themselves of that citizenship, in accordance with the law of the foreign country. CENTRE FOR LAW AND JUSTICE
- In Re Gallagher [2018] HCA 17 the HC elaborated on the ‘constitutional imperative’ issue and stated that what this meant that s 44(i) would not apply only if foreign law imposed some ‘irremediable impediment to effective renunciation’ - eg risk inherent in going back to renounce citizenship (also perhaps prohibition of renunciation? ) - mere delay in processing an application for renunciation by a foreign government did not amount to an irremediable impediment. CENTRE FOR LAW AND JUSTICE
Section 44(i) issues - Practical issue – it depends on the vagaries of foreign law as to whether a person is a foreign citizen – and that can change from time to time. - Issue of principle - should we have s 44? - Issue re standing – what if a Senator / MP is not referred under s 376? In that circumstance, political majorities rather than legal merits would determine the outcome. CENTRE FOR LAW AND JUSTICE
Section 44(ii) Re Culleton (No 2) (2017) 341 ALR 1 – convicted of an offence prior to nomination – subsequently annulled – HC said status at time of nomination determinative. Section 44(iv) Sykes v Cleary (No 2) (1992) 176 CLR 77 – a person holds an office of profit under the Crown even if they are employees of State public service – in this instance, a teacher. CENTRE FOR LAW AND JUSTICE
Section 44(v) In 1999 the government refused an opposition request to refer the eligibility of Warren Entsch, who had shares in a Co which had a contract with Cth, to HC and instead declared that he was eligible, relying on s 47. Re Day (No 2) (2017) 343 ALR 181 – Senate referred Bob Day – very indirect financial interest in contract of Cth but still fell foul of s 44(v). CENTRE FOR LAW AND JUSTICE
Discussion – constitutional reform Possible areas - Electoral system Rights protection Parliamentary scrutiny of the executive Federalism Republic and reserve powers Indigenous people (Module 10) ? CENTRE FOR LAW AND JUSTICE
Electoral system – some data: Year Party 1990 Labor Nationwide Percentage of percentage of Ho. R seats won. first preference votes. 39. 4% 52. 7% Coalition 43. 4% 46. 7% Labor 40. 1% 45. 2% Coalition 39. 1% 54% 1998 CENTRE FOR LAW AND JUSTICE
2016 election: Percentage of first Percentage of preference votes. Ho. R seats won. Australian Labor Party 34. 73% 46% Liberal 28. 67% 30% The Greens 10. 23% 0. 01% Liberal National Party 8. 52% 14% The Nationals 7% 4. 61% CENTRE FOR LAW AND JUSTICE
Rights protection Bill of Rights? Courts Parliament Democracy = right to vote – ie just one right Current rights Universal Declaration on Human Rights 1948 CENTRE FOR LAW AND JUSTICE
Parliamentary scrutiny of the executive Responsible government ? Party discipline Questions by committees Parliamentary privilege Public interest immunity? CENTRE FOR LAW AND JUSTICE
Federalism Unitary v federal systems Why do we have six States? Rationale for federalism? Do boundaries matter? Economics – what countervailing benefit? Delegation vs entrenched division CENTRE FOR LAW AND JUSTICE
Republic and reserve powers Who is “Head of State”? Symbolism vs powers Conventions – 1975 crisis Codification – appointment of PM, dismissal Dismissal of Head of State. CENTRE FOR LAW AND JUSTICE
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