Talk:Constitution of Australia

Bob Hawke, Constitutional founder

Our article, in the "History/After Federation" section, reads

Following the 2017–18 Australian parliamentary eligibility crisis, there was discussion of whether to retain or replace the current constitution. Former Prime Minister Bob Hawke advocated for getting "rid of the constitution we've got", and replacing the constitution with a system that does not include states.

Considering that we do not, in that section, discuss the various times the Constitution was actually amended, nor the republican movement of the 90s culminating in the 1998 Constitution Convention and subsequent referendum, mere fleeting calls for a new constitution hardly seem worth mentioning. The sentences read like an afterthought. Is anybody particularly wedded to this passing glimpse? Maybe it could be stuck in the "Alteration" section, where more significant changes are discussed. --Pete (talk) 03:36, 22 August 2021 (UTC)

Scrapping the States has been suggested several times—I recall, in particular by Gough Whitlam and Wayne Goss. It might be in Tony Abbott's book Battlelines. There has also been at least one report on whether the States are worthwhile. So, when this comes from Hawke, it is not a mere afterthought. However, it is not currently debated. The mention of Hawke could be bolstered with brief mentions of the others, but not more. The "Alteration" section is inappropriate, since this requires a new constitution. Errantius (talk) 04:02, 22 August 2021 (UTC)

There was certainly debate about amending the relevant provision, I don't recall any mainstream debate about scrapping the entire constitution. I would say abolishing the states is raised often enough to warrant a brief mention in the article. Ivar the Boneful (talk) 09:26, 22 August 2021 (UTC)

Wowsers, in another discussion at another place, I'm being told that the states are virtually sovereign states & now this? 2021 has been a strange year. GoodDay (talk) 09:31, 22 August 2021 (UTC)

Nothing came of it. People are always talking about changing this and that in the Constitution. I don't know how one would go about rewriting it entirely. Can't use s128 to do that because it would be clearly outside the original intent of the founders. A lot of the authority - moral if not legal - of the document stems from the fact that it was bashed into shape by popularly-elected delegates at a people's convention, and subsequently approved by the people themselves before it was even submitted to the British Parliament. Changing it completely by referendum would be like turning a school into a department store, and way beyond what was originally approved in setting up an "indissoluble" Commmonwealth. Maybe there will be some changes made when HM's reign comes to an end and we have another go at a republic. We can address the matter then. --Pete (talk) 17:49, 22 August 2021 (UTC)

Trial by jury

We claim "s80 guarantees trial by jury for indictable offences against the Commonwealth" but this is misleading. Subsequent legislation determines what are crimes "on indictment" and so there is no absolute guarantee to a trial by jury because crimes could be reclassified by Parliament through the regular processes. This is often seized upon by those claiming to discover a "Bill of Rights" in the Constitution and I'm not sure I want to feed these people ammunition, albeit flawed. --Pete (talk) 07:36, 22 August 2021 (UTC)

I just read an interesting summation of section 80 case law not long ago, I'll see if I can find it. That's my understanding as well, the court has always held that parliament determines what is "indictable", although there has been pretty vocal dissent on occasion. This is a weaker form of the equivalent provision in the US constitution. Agree we should make it clear that this is the case and there is no absolute guarantee. Ivar the Boneful (talk) 09:20, 22 August 2021 (UTC)

Here, by Justice Bell: [1]. Definitely enough scope for a separate article on section 80, it currently just redirects to the article on Chapter III which doesn't even mention trial by jury. Ivar the Boneful (talk) 09:23, 22 August 2021 (UTC)

Trial by their media 120.17.80.173 (talk) 01:30, 22 May 2023 (UTC)

Ignorance

With this edit an editor changed the wording about the Imperial Act which read

There exist eight 'covering clauses' comprising the Imperial Commonwealth of Australia Constitution Act 1900. The Constitution itself is contained within clause 9 of the Act.

He used the edit summary, "Ignorant: the Act has 9 sections; ss1-8 are known as the covering clauses, while s9 contains the Constitution" to justify changing the sentence to this:

There exist eight 'covering clauses' as preface to the Imperial Commonwealth of Australia Constitution Act 1900. The second covering clause sets out that Australia's monarch is to be the same as in the UK.

Leaving aside the material about the monarch for a moment, I'm puzzled as his intent. The Act has a brief and uplifting preamble, but the so-called covering clauses are not a preface to the Act, they are the Act! I'm not sure that it is ignorant to say that the eight covering clauses plus the ninth containing the text of the Constitution comprise the act. It is merely stating the well-known fact. Possibly a minor change of wording could have been discussed here. But changing an accurate statement into one that is in error and making an unfounded personal attack at the same time seems to be coming it rather high.

As to the monarch, that is not what clause 2 says. Here is the wording of cc2:

The provisions of this Act referring to the Queen shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom.

The Constitution Act does not set up an Australian monarchy, it merely ensures that the phrase "the Queen" does not lose any force if there should (as was obviously soon to happen in 1900) be a King in due course. With the Balfour Declaration and the Statute of Westminster some decades later, an Australian (and Canadian and New Zealand and so on) monarchy was established, but that was not something envisaged by the Constitution Act in 1900. We can talk about the changing role of royalty in another section, but trying to cram the SoW into the document itself seems a step away from factual reality. --Pete (talk)

Maybe you should re-name the discussion's heading. GoodDay (talk) 18:14, 22 August 2021 (UTC)

Pete, you twist my argument. Not my words, because I had reverted your change made at 07:28 on 22 August, but I own the result of my reversion.

I characterised as "ignorant" your statement "eight 'covering clauses' comprising" the Act. You now say: "I'm not sure that it is ignorant to say that the eight covering clauses plus the ninth containing the text of the Constitution comprise the act. It is merely stating the well-known fact" (my bold). Of course, but that is not what I was referring to.

To say that the eight covering clauses form a "preface" to the Act is to use a non-technical expression to characterise their function. But I'm not wedded to it.

However, I agree about "Australia's monarch". I think I had written a long time ago "the monarch in Australia".

I have rewritten the section. Errantius (talk) 01:15, 23 August 2021 (UTC)

Good-oh! Anything else you think needs work? --Pete (talk) 05:27, 23 August 2021 (UTC)

Capitalisation of Nouns

My edit to remove capitals from the words "state" and "territory" has been reverted due to its "introducing ambiguities". I don't understand this.

state is not a proper noun, so why capitalise it? Proper nouns would be words like "Victoria" but not the general word state.

https://simple.wikipedia.org/wiki/Proper_noun

What is the reason for this reversion?

Marchino61 (talk) 07:35, 26 January 2022 (UTC)

My reason to revert was not about proper nouns, but about ambiguity. I agree that these capitalisations should be avoided, but only after making sure that the change does not produce ambiguity in a phrase such as (off top of head) "state power" or "territorial border". Errantius (talk) 11:00, 26 January 2022 (UTC)

OK, then I will revert your change and let you sort out the ambiguity (because I don't understand what is ambiguous.Marchino61 (talk) 23:30, 26 January 2022 (UTC)