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AUSTRALIA ACTS (REQUEST) BILL 1999 (No. 34)

Second Reading

Mr PATMORE (Bass - Minister for Justice and Industrial Relations - 2R) - Mr Deputy Speaker, I move -

That the bill be now read the second time.

Mr Deputy Speaker, in November this year, Australians will vote on whether Australia is to become a republic. If the referendum is passed, Australia will become a republic at the national level. The States will then have to consider whether to sever their links with the Crown.

There is an argument that section 7 of the Australia Acts of the Commonwealth and the United Kingdom needs to be amended to ensure that States can exercise their own constitutional processes to sever their links with the Crown. Section 7 deals with the relationship between Her Majesty and State governors. It states that 'Her Majesty's representative in each State shall be the Governor'.

The States are bound by the Australia Acts and cannot legislate in a way that is contrary or repugnant to the Australia Acts. If a State were to amend its constitution to provide that the governor is not Her Majesty's representative, this may be considered to be repugnant to section 7 of the Australia Acts. Accordingly, for the sake of certainty, section 7 of the Australia Acts needs to be amended if Australia becomes a republic to ensure that States will be able to sever their links with the Crown should they choose to do so.

Section 15(1) of the Australia Acts sets out a procedure for the amendment of the Australia Acts. This can be done by Commonwealth legislation passed at the request of all State parliaments. Another possible way of amending the Australia Acts is by inserting in the Commonwealth referendum bill a power for the Commonwealth Parliament to make such an amendment. This is recognised by section 15(3) of the Australia Acts, but no actual power is given in the Australia Acts to make an amendment in this way. Accordingly, there is legal doubt as to whether this course is effective.

The Commonwealth has inserted in the transitional provisions in its referendum bill, the Constitution Alteration (Establishment of Republic) Bill, such a power for the Commonwealth Parliament to amend section 7 of the Australia Acts. The States have been critical of the initial draft of this provision, and would prefer that the amendment be made by the more legally secure and appropriate route set out in section 15(1) of the Australia Acts.

Accordingly, the solicitors-general, parliamentary counsel and law officers of the States have negotiated uniform request legislation which is proposed to be enacted by each State. The bill has already been introduced into the Victorian and New South Wales parliaments and it is expected to be introduced into other State parliaments shortly.

The bill requests the Commonwealth Parliament to enact a bill in a form set out in the schedule to amend section 7 of the Australia Acts. This State Request Bill will not come into force unless the Commonwealth's referendum bill, the Constitutional Alteration (Establishment of Republic) Bill, is passed by the referendum and receives royal assent. Accordingly, this State Request Bill will have no effect if the Commonwealth referendum on the republic fails. If the Commonwealth referendum on the republic is passed, however, and all the States pass this uniform request legislation, the Commonwealth Parliament may amend section 7 of the Australia Acts by adding two subsections. These subsections provide that a State parliament may make a law providing that section 7 does not apply to the State and that if it makes such a law section 7 ceases to apply to the State.

This amendment therefore places the power in the State Parliament to decide at a future date whether it wants to terminate the operation of section 7 in relation to the State. The bill does not affect the constitutional procedures necessary for a State to sever its ties with the Crown. It does not remove any requirement in a State constitution to hold a referendum.

If all States pass this uniform request legislation prior to the Commonwealth's referendum bill being passed by the Commonwealth Parliament in August this year, then the Commonwealth will be in a position to remove the provision in its referendum bill dealing with the amendment of section 7 of the Australia Acts as the Commonwealth will be able to act upon the section 15(1) request.

I commend the bill to the House.

Resumed from 3 June 1999

Mr GROOM (Denison) - When this matter was last before the Parliament, the Attorney adjourned the debate after his second reading speech, and from this side we appreciated that because we wanted to look at the bill and to consider what was happening in other States. It has been valuable because we have arrived at a firm conclusion. We do appreciate the fact this is part of the national approach which is being adopted by all of the other States to overcome possible problems with section 7 of the Australia Acts of the Commonwealth and also the United Kingdom parliaments. Section 7 of the acts provide that 'Her Majesty's representative in each State shall be the Governor', and it is generally thought that section 7 requires the continuation of a monarchy for each of the States, although there are different opinions on that particular matter.

The acts can be amended by the Commonwealth Parliament if it is authorised to do so by a request from each State Parliament, and that is contained in section 15(1), but the bill, we believe, is pro the States and pro federation in the sense that it does allow ultimately each State to determine the sorts of arrangements it wants to put in place itself. That would be a matter for the Parliament of each State, including the Parliament of Tasmania. So this bill does protect the rights of each State to determine its own destiny as far as these sorts of arrangements are concerned.

In the interim between the earlier debate and this one, I have had the chance to check on other States and I have confirmed it from my own inquiries that this bill has been through all stages of the Victorian Parliament; both Houses of that Parliament in all stages without any amendment of any sort. Also, in Western Australia the bill was introduced by the Attorney-General of West Australia, Mr Foss, into that Parliament, and has the very clear support of the Western Australian Government which tends to be quite pro States' rights, and also some leading members over there are very much monarchists so I think that is of some significance.

It should be noted that if the Commonwealth referendum on the republic does not pass, as required under the Constitution, then this bill will have no effect at all and the amendments would not go through. So it is dependent upon that referendum passing under the Constitution. The bill cannot be said to favour a republic or favour the monarchy, but simply gives the State the power to determine what future constitutional arrangements it would wish to put in place. That would be, as I say, a matter for the State parliament concerned.

The Opposition supports this bill but I make the point again that it does not indicate a view on the republic issue by our members; that is indeed a matter for each individual member of our party. Also, of course, the bill, as I said before, does not favour a republic or favour continuation of the monarchy but is simply protecting the right of the States to determine the sort of arrangements that State wants to put in place. We therefore support the bill.

Mrs JAMES (Bass) - I think it might be of some interest to the House to know that some time ago His Excellency, Sir Guy Green, noted that the States had been ignored in this particular debate. I have here in front of me quite a lengthy excerpt from his address to the justices of the Peace. Rather than read it out, perhaps if I table it I think it would be of some value because he foresaw the necessity for what we are now addressing. With the leave of the House I will table it.

Leave granted and paper tabled.

Bill read the second time and taken through the remaining stages.