Constitutional Monarchy or Republic? Implications for New South Wales
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Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 03/1998 by Gareth Griffith
This paper canvasses the main legal and constitutional implications for NSW should Australia adopt a form of republican government. It does not address the general arguments for and against an Australian republic, such as those relating to identity and nationhood. Instead, it is more concerned to ask what if? than why? The immediate background to the paper is the forthcoming Constitutional Convention which is to be held in February 1998.
Constitutional monarchy in NSW: The paper presents an overview of the operation of constitutional monarchy in NSW. It is noted in this context that a threefold distinction can be drawn in which the Crown' can be associated, first, with the Monarch, secondly, with the Government and, thirdly, with the State. The paper then asks: what is meant by "the Crown in the right of NSW'?; and what effect did the Australia Act 1986 have on constitutional monarchy in NSW? (pp.10-17).
A republican NSW: A distinction can be made between: those questions and issues relating to transitional matters, dealing with the machinery of change; and those concerning the details of any republican system in the States. The second group of constitutional issues would arise irrespective of how the republican system of government was achieved. These include:
- what would a republican system substitute for the Crown? (pp.17-19).
- would NSW need its own head of state under a republican form of government? (pp.19-23).
- how would the NSW republican head of state be chosen? (pp.23-25).
- how would a republican head of state be removed? (pp.25-26).
- how should the tenure of a republican Governor be defined? (p.26).
- and should a republican Governor's reserve powers be codified? (pp.26-29).
Transition to a republic: As far as the transition to a republic is concerned, the key questions arise under: (a) the Commonwealth Constitution: (b) the Constitution Act of NSW; and (c) the Australia Act. In relation to the first, a key issue is: can a republican form of government be imposed on the States through the referendum procedure in section 128 of the Commonwealth Constitution? In relation to the second, a key issue is: is the monarchy entrenched under the NSW Constitution Act, thereby requiring a State referendum? In relation to the third, a key issue is: does section 7 of the Australia Act entrench the monarchy in the States, thereby requiring amendment or repeal of that section? Note that the significance of these issues, all of which relate to the method by which the republican system of government is to be introduced, varies considerably depending on which strategy is adopted for achieving that goal at State and/or Federal level. For example, the question as to whether constitutional monarchy is entrenched under the NSW Constitution Act 1902, thus requiring a State referendum if it is to removed, would not arise if the decision was taken to establish a republic at all levels of Australian government by means of a national referendum under section 128 of the Commonwealth Constitution. One point to make, therefore, is that legal and strategic issues often intersect in the context of the republican debate. Another is that there will be occasions when considerations of legal validity must give way to practical political concerns (pp.29-41).