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).
