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Joint Committee on Republic Referendum
12/07/99
Proposed laws, Constitution Alteration (Establishment of Republic) 1999 and Presidential Nominations Committee Bill 1999

ACTING CHAIR —Welcome, Mr Stokes. I advise you that, although the committee does not require you to give evidence under oath, the hearings today are legal proceedings of the parliament and warrant the same respect as proceedings of the houses themselves. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of parliament. Would you please state the capacity in which you appear before the committee. You would also like to table a supplementary submission, would you?

Mr Stokes —I am here as a private citizen, but I am a lecturer in constitutional law at the University of Tasmania. I have not actually put in a submission in writing, but I do have a submission—

ACTING CHAIR —Is it the wish of the committee that the submission be accepted? There being no objection, it is so ordered.

Senator ABETZ —I was happy to move that my former lecturer's submission be adopted, but I do not think he would necessarily lay claim to my political views!

ACTING CHAIR —Mr Stokes, would you like to make a brief statement before we ask questions?

Mr Stokes —Certainly. I have commented on a number of things in the submission basically relating particularly to the constitutional amendments which are proposed. The first was about the long title of the act, because I noted that there has been some public debate—and I thought it was rather point scoring public debate—about the long title. It seems to me that the only way to avoid this type of point scoring is probably to have a title which is a bit longer but which does attempt to really summarise, as impartially as possible, what the act actually does. I have attempted to do that there. I think it is doubtful whether these changes actually create a republic but it is clear that they abolish the monarchy, so, instead of talking about a republic, I put it in that form—

Senator ABETZ —Is there a halfway house?

Mr Stokes —I do not think that it particularly matters, but certainly I was talking to a couple of American friends of mine the other day and they said, `This is not a republic.' I thought it was probably better to put it in the negative. It clearly abolishes the monarchy and it also abolishes the office of Governor-General. Then it establishes the office of President of the Commonwealth of Australia. It confers on the President the legal and conventional powers of the Governor-General. I included the words `legal' and `conventional' there because I noted that there has been some comment that the President would not be in the position to actually exercise the political power of the Governor-General because of the ease of dismissal. I thought it was better to make it clear that these are legal and conventional powers rather than practical, everyday political powers. `Provide for the appointment of the President by a two-thirds majority of the members of the Commonwealth parliament'—I thought, once you start adding details to that, you can go on forever. There are so many


aspects to the appointment and dismissal which people might see as controversial. So, for brevity, I thought it was better just to have that.

ACTING CHAIR —Would you like us to ask you questions on these separate points before we move on to the next?

Mr Stokes —Yes, if that is convenient for you.

ACTING CHAIR —It may be convenient, actually.

Senator ABETZ —Just as long as we do not lose track of time, in fairness to the witness.

ACTING CHAIR —Yes. Are there any questions about the long title?

Senator PAYNE —I know you said that it is important not to add too much information or too many details, but one which has been discussed at length around this table over the past few days is the nomination process—to perhaps insert something about the calling for nominations and the consideration of those. In point 5 of your suggestion, you have the words `appointment by a two-thirds majority', which we have discussed at length based on the current long title saying `chosen'. Should it be `approved' as opposed to `appointed' by the parliament? They are two things I would ask you to comment on.

Mr Stokes —I think it would have to be either `appointed' or `chosen'. If it is merely `approval', that means the appointment is by someone else. For example, in America officers of state are appointed by the President and then approved by the Senate. The use of the word `approval' really indicates that there is somebody else making the appointment, so I think it has to be either `appointed' or `chosen'.

Senator ABETZ —Can I just put this to you: in fact, a nomination will get up only if chosen by the Prime Minister and Leader of the Opposition. Thereafter, the role of the parliament is only a veto power. The parliament does not actually do the choosing in that sense, does it? It approves the suggestion being put by the Prime Minister and the Leader of the Opposition.

Mr Stokes —You could put in `nominated by the Prime Minister and the Leader of the Opposition'. So it could be `appointment of the President by a two[hyphen]thirds majority of the members of the Commonwealth parliament of a nomination of the Prime Minister and the Leader of the Opposition.' That could certainly be added, and I think that is reasonably accurate.

It was difficult to know exactly what to put in and what to leave out of that. I left that point out, which I can see is reasonably important, but then so is the dismissal, effectively, by the Prime Minister. The nomination process could also be seen as reasonably important, so I would not object to that going in, but there is the question of brevity.

ACTING CHAIR —In one sense, the method of appointment is going to be a regular occurrence, whereas the occurrence of a dismissal will be rare.


Mr Stokes —From my point of view that was extremely important because it seemed to me that there was a lot of talk about the Governor[hyphen]General: `If it ain't broke, don't fix it.' The one situation where, by the evidence of the Governor[hyphen]General in office at the time, that office was `broke' was in the method of dismissal. What I thought was really wrong with 1975 was not that the Governor[hyphen]General intervened but that he could not tell the Prime Minister beforehand the nature of the proposed intervention. That was because of the lack of tenure and, of course, this actually exacerbates the problem.

ACTING CHAIR —Will you want to move on to the dismissal issue down the track?

Mr Stokes —Yes.

ACTING CHAIR —Would you like to go on to the next topic of your presentation—`The Office and title of the President'?

Mr Stokes —It seemed to me that the Constitution should probably indicate the title of the President. There are two choices: the President of Australia or the President of the Commonwealth of Australia. Given that the states are to retain, in one way or another, their own separate `head of state'—for want of a better term—it seemed to me that the better title would be President of the Commonwealth of Australia. I thought it would enhance the status of that title and probably the status of the President if the title were actually in the Constitution.

ACTING CHAIR —Are there any questions on that issue? No, that is accepted. The next point is section 59, `The President to act on advice'.

Mr Stokes —I thought there was a major constitutional question here about existing understandings of how the Governor[hyphen]General acts, and that is whether there is really any situation in which a Governor[hyphen]General would be able to act on the advice of one minister who was not the Prime Minister. There are some situations, for example, the calling of a general election, where the convention is that the Governor[hyphen]General acts on the advice of the Prime Minister. But I thought it would have been extremely improper for the Governor[hyphen]General to have acted on the advice of a minister rather than on the advice of the Executive Council.

Mr DANBY —Wasn't the idea that that minister be appointed by the Executive Council?

Mr Stokes —What is the quorum of the Executive Council? Is it two?

Senator ABETZ —Two. I have been to those meetings once or twice where we advise His Excellency on what to do in signing off on bills and regulations, et cetera. But, as I understood it, a minister can also seek—

Senator PAYNE —Advice on the administration of a department, as I understand it.

Senator ABETZ —And appointments? That is why it is in there like that, albeit some people have pointed out to us that there could be a situation where a minister could advise


the Governor[hyphen]General or the President, `Don't sack me', whereas the Prime Minister could be advising a sacking. So there could potentially be conflict.

Mr Stokes —I wondered whether that was in for the administration of a department, but even then I thought there was a reasonably strong convention that, where the power was exercisable by the Governor[hyphen]General, that was an indication that that question was really one for cabinet rather than just for the minister and that therefore it was appropriate that it be the Executive Council.

I think that used to be the case with statutory powers. It may have been fairly much abandoned. You blokes work with it every day; I just read what happens. The High Court have certainly indicated that, for example, in the cases where they were discussing whether the Governor[hyphen]General's discretion is reviewable, they make that clear distinction that the vesting of the power in the Governor[hyphen]General is an indication that it is a cabinet matter, whereas, when the power is vested in the minister, it is not. If it is a cabinet matter, even if it is departmental, it is really appropriate, it seems to me, that it go through the Executive Council rather than a particular minister.

ACTING CHAIR —Is there anything else in respect of section 59 about the concept of acting on advice? At the moment, in our current Constitution, there is no specification that that is to occur. It occurs through custom.

Mr Stokes —I really think it is good that it has been put in, because the more you can make these rules public—in the sense of their being in the Constitution so that the Constitution reflects what happens in reality—the more ordinary people are going to understand what goes on, particularly with respect to the Constitution. It will lose that mysticism that it has a bit at the moment. If you look at the American one, you still get some idea of what happens by reading it, whereas, in Australia, you would think the Governor[hyphen]General was some sort of potentate.

ACTING CHAIR —Sure. Are there any other questions on this section 59 issue?

Senator ABETZ —There was an interesting question that you, Mr Acting Chair, raised with Dr Chapman before lunch. Would you say the same about the common law—that it is not codified, yet there are certain principles and standards by which cases will be decided which do allow for growth and for individual circumstances to be taken into account?

Mr Stokes —Maintaining all of these sorts of under[hyphen]the[hyphen]table, conventional practices certainly does allow for change in that sense. If you look at what has happened in America, there has been a huge growth of convention as well. I do not think it stops that. But, here, the fundamental document setting out what are supposed to be the ground rules of government really should reflect reality; otherwise, the message that goes out to members of the public is, `This is not for you. Leave this to the experts because you're not meant to understand this. It's written in a way that you can't understand. It's a mystery and only for people with expert training.'

Senator ABETZ —So is that a deficiency of our common law system generally?


Mr Stokes —Perhaps, but the common law generally is not quite so fundamental. It does not have quite the basic status of setting out the ground rules of government that the Constitution has or should have.

Senator ABETZ —It is not that we are without a constitution. There is a fair bit in the written document as to how it works.

Mr Stokes —Yes.

Senator ABETZ —Those areas that are not talked about specifically within the Constitution are those that deal with those circumstances that we hope would arise once every 100 years.

Mr Stokes —Sure. Some parts of it are absolutely positively misleading, if you read it at face value. For example, if you take realistically the idea that ministers of state are appointed at the Governor[hyphen]General's pleasure, it suggests that the Governor[hyphen]General can appoint ministers, the only limitation being that they must be members of parliament, and that there is no requirement of parliamentary responsibility at all. As to the Governor[hyphen]General as Commander[hyphen]in[hyphen]Chief of the armed forces: we do not want the silliness that happened in 1975 where certain irresponsible people were able to suggest, to a public who did not know better, that the Governor[hyphen]General was on the point of calling the Army out. That sort of thing seemed to me to be irresponsible but was made possible by the fact that the Constitution does not explain what it means on its face.

ACTING CHAIR —I suppose there are a lot of anachronisms there. For instance, the power of the monarch to disallow a bill or an act within 12 months has never been used.

Mr Stokes —That is right.

ACTING CHAIR —Do you think it is better that those anachronistic provisions are modified or removed?

Mr Stokes —To a great extent, it would be. I thought one which could have been cleaned up here fairly easily, particularly given that section 59 does have these requirements of advice, is that some of the other provisions about the executive refer to the distinction between the Governor[hyphen]General acting on the advice of the Executive Council and the Governor[hyphen]General not acting on the advice of the Executive Council, which basically goes back to the time of George III. It was maintained in our existing Constitution because the drafters in 1900 did not want to be thought of as ignoramuses when it was looked over by the British Colonial Office. They wanted to show that they understood the distinction, which goes back to George III, between those powers which legally had to be exercised on the advice of the Executive Council and those which did not. Of course, by convention, they are all exercised on the advice of the ministers. I thought there could have been some cleaning up there. It is a bit odd, when you have that section 59, that some of the powers of the Governor[hyphen]General are exercised on advice of the Executive Council and some are not.

ACTING CHAIR —It is all bar the reserve powers in 59, isn't it?


Mr Stokes —Yes. Still, there are examples in some of the provisions, but I would need some more time to actually find them, I think.

ACTING CHAIR —Section 5 on the prorogation and dissolution of parliament is not on advice.

Mr Stokes —That would generally be on the advice of the Prime Minister anyway, wouldn't it?

ACTING CHAIR —Yes, but there is no specification. I am not sure about the military one.

Mr Stokes —The military one just says `Commander[hyphen]in[hyphen]Chief of the armed forces'. I know there are some powers in here which are exercisable on advice and others which are not.

ACTING CHAIR —I think another witness has made that point to us as well.

Mr Stokes —I do not particularly want to ferret around for them at the moment.

Senator ABETZ —Could I have the indulgence to ask one quick question on section 59. You do not address it, but I would be interested in your view. In the third paragraph, we are told that, in effect, the President will be clothed with the powers of the Governor[hyphen]General. It says:

A power which `was a reserve power of the Governor[hyphen]General'. . . in accordance with the constitutional conventions relating to the exercise of that power.

That is framed in the past tense. As I understand it, the reserve powers and the conventions have been evolutionary in nature. Does this mean that they will be snap[hyphen]frozen, not to be added to or detracted from by the evolutionary process of the law, as a result of this terminology saying that it was a reserve power at the time?

Mr Stokes —Realistically, I do not think so. The content of the reserve powers is always going to be the subject of argument in particular cases. You are very likely to get mirror images of events which have happened in the past. The way that they get adapted and modified is when you have a slightly different situation; what do you do? I think that process will inevitably continue, simply because there is really no alternative.

ACTING CHAIR —Is section 8 of schedule 3 consistent with your view? It says `to the effect that nothing in this proposed bill prevents conventions developing'. It is a very inaccurate recording, but it is along those lines.

Mr Stokes —I think section 8 actually makes it fairly clear. I had forgotten about that. It makes it fairly clear that, even though the word `was' there is in the past tense, these conventions are seen as ones which are going to evolve. I think that is inevitable because there will always be new situations.


Ms HALL —I think the section you were looking for in the Constitution was 68. If you want to touch on that, you can, but I also want to talk to you a little bit about section 62.

ACTING CHAIR —We are moving on to that one now. I was just doing it in stages. Are there any more questions on section 51?

Ms HALL —No, I thought you had moved on.

ACTING CHAIR —We will move on to your next subheading, section 62, if that is convenient.

Mr Stokes —It seems to me that section 62 of the proposed bill—`Removal of President'—provides for the removal of the President by the Prime Minister. That really was not the recommendation of the Constitutional Convention. Section 62 does reflect that, to this extent. The recommendation of the Constitutional Convention was that if the President were removed by the Prime Minister then that removal, even if parliament voted not to accept it, was effective—so the President was gone. But it also made it clear that if parliament voted against the Prime Minister's removal, that is a motion of no[hyphen]confidence. It seems to me that that has to be in section 62 of the Constitution; otherwise there is always going to be a very strong argument that, by excluding it, we have deliberately chosen not to adopt the recommendation of the Constitutional Convention on that point. It seems to me that that is absolutely crucial, because if you are going to have any reserve powers in the hands of a President, which this provides for—and they will particularly apply to situations of dismissal—you have to provide for some sort of tenure in the hands of the President. Otherwise the President will be forced again into secrecy. That was Sir John Kerr's justification for secrecy: `I could have been removed, therefore I could not take the risk of warning the Prime Minister.'

Ms HALL —I have a question on section 62. In the first line of your paragraph about section 62, you say:

Under the proposed s 62 the President may be removed by the Prime Minister.

Is that the situation now?

Mr Stokes —That will be the situation under the legislation going to a referendum.

Ms HALL —No, currently. Under our current Constitution, the Governor[hyphen]General can be removed by the Prime Minister.

Mr Stokes —The current situation is that there is no specific provision about removal, but it is generally accepted that if the Prime Minister contacted Her Majesty, she would accept the Prime Minister's advice. But it could take a period of weeks.

Ms HALL —Malcolm Fraser put to us in Melbourne that when the Prime Minister contacts the Queen and says, `The Governor[hyphen]General is to be removed' and the moment that he advises the Governor[hyphen]General that he or she is to be removed, that person is no longer Governor[hyphen]General.


Mr Stokes —That would have to be wrong, because the Governor[hyphen]General has a commission from the Queen—the monarch—and that commission remains in effect until the monarch revokes it.

Ms HALL —He stated that, effectively, he would be just a token. He would have no power. He could refuse to accept the Prime Minister's direction, but it was just a formality and his action would very quickly be endorsed by the Queen, who would just rubber stamp the proposal of the Prime Minister. In saying that, can I ask you whether you can give me an example of when that has not happened in the past?

Mr Stokes —No. We do not actually have an example of this situation, which makes it difficult. There has been a situation in the past—and admittedly you have to go back to 1930. There was a dispute in 1930 which went on for some considerable time, between the monarch and the Australian Prime Minister, over the appointment of the Governor[hyphen]General. The appointment recommended was Isaac Isaacs, by Mr Scullin. Certainly at that time—and admittedly it was just before the passage of the Statute of Westminster, but it was after the Balfour Declaration—the monarch acted as if he had discretion in the matter and eventually bowed, because Scullin kept insisting.

Ms HALL —In actual fact, the monarch agreed with the Prime Minister's recommendation.

Mr Stokes —Yes, but not immediately, and the monarch certainly acted as if in that matter he had the power to warn, encourage and advise the Prime Minister. To use the technical language which is often used to refer to these matters, it is the residue of discretion in these matters which is vested in the monarch or the monarch's representative. I think if the Prime Minister wanted to sack a Governor[hyphen]General, you would have the monarch again exercising the power to warn, encourage and advise.

Ms HALL —Can you give me an example of where that has ever happened?

Mr Stokes —With the dismissal of a vice[hyphen]regal officer?

Ms HALL —Where the Queen has ever even questioned the Prime Minister on such a thing in this country?

Mr Stokes —No, it is a bit difficult here, because we can go back to 1930, where the King certainly questioned the Prime Minister.

Ms HALL —But they bowed to the Prime Minister's wish.

Mr Stokes —Eventually; not immediately, though. This is the point.

Ms HALL —But did not feel in the long run that they could disagree with the wish of the Prime Minister.

Mr Stokes —No, in the long run, that is right. But they were certainly given enough time for the Governor[hyphen]General to have sacked the Prime Minister in the interim.


ACTING CHAIR —I am just conscious that the way I have been going through may have actually prevented Mr Stokes from completing his summary. We might do that and then come back, if we have got time. We will move on to proposed section 127.

Mr Stokes —It seemed to me here that the definition of `a state' was too narrow. This is only a fairly minor point. Why it seemed to me to be too narrow is that, if we go to that definition, it says:

The States means the original States, and such territories as may be admitted into or established by the Commonwealth as States.

The term `territories' would seem to have in mind, particularly, the Northern Territory, for example. Under the Constitution at the moment, that does not seem to reflect the possibilities for creating new states under sections 121 and 124, which would first of all allow for a state which was not part of Australia at the moment—for example, New Zealand. In particular, section 124 allows for the creation of a new state out of the territory of an existing state—a state of North Queensland, for example. There have been movements at various times in Australia to create new states out of the territories of existing states. It just seemed to me that that definition of a state was too narrow and inconsistent with the constitutional possibilities for creating new states. I thought for consistency that I would suggest a change. That is really all I wanted to say about that one.

Finally, this is a little difficult because I am not quite sure how to amend this one, but I am sure a drafter could do it. Recommendation 31 of the Constitutional Convention in part was that any provisions of the Constitution Act, the covering clauses, which have continuing force should be removed into the Constitution. Certainly, some constitutional experts believe that covering clauses 3 and 4 still have continuing, and quite crucial, force, and they have not been removed into the Constitution.

Unfortunately, I did this fairly quickly because I have a lot of other things on my plate at the moment, but I know there was an article written about secession a few years ago. It may have been by Greg Craven, but I do not think so. I suspect it was not by Craven, but at any rate the argument was that the provision of the Constitution which prevents a state seceding, and makes it illegal for a state to secede, is the continuing effect of covering clause 4. Covering clause 4 refers back to covering clause 3—and this is why I bracketed the two of them—and says:

The Commonwealth shall be established, and the Constitution of the Commonwealth shall take effect, on and after the day so appointed.

His argument was that the word `after' is crucial there, because the effect of section 4 is what gives the Constitution its continuing effect. It not only takes effect on the day proclaimed—and this is the day proclaimed for it to take effect in section 3—but it continues, in effect, after. So he saw covering clause 4 as being quite crucial in maintaining the continuing effect of the Constitution. Also, combined with clause 3, it prevents any argument that the states have a right to secede by maintaining the continuing effect of the Constitution over them.


Personally, it is not a view that I support. I think the Constitution is maintained in operation by covering clause 5 quite effectively by itself, and that has been brought into the

Constitution as a new section—section 126. But even though it is not a view that I accept, I think it was important to point it out to the committee.

Senator ABETZ —This question is in relation to removal of the President and your suggestion that the Constitutional Convention suggestion be included. In practical terms, wouldn't it stand to reason that, if a Prime Minister could not command a majority on the floor of the House on the dismissal of a President, that Prime Minister's hold on office would be similarly tenuous and would therefore undoubtedly be facing a motion of no confidence anyway? So putting it in will have no practical effect.

Mr Stokes —There has to be a strong argument that a Prime Minister who cannot get a vote on a question like that is in deep trouble, to put it mildly.

Senator ABETZ —So would those words add anything?

Mr Stokes —Yes. It makes it clear that there are constitutional consequences for a Prime Minister who does this. It will make it clear to the average layperson in the street that that is the case. I would personally like to see it spelt out in black and white for myself. I do not think there can be any real objection on the grounds that the Prime Minister is not recognised in the Constitution, because now he will be, with particular reference in—

Senator ABETZ —I understand that argument.

Senator PAYNE —In my reading of the submissions so far and in the number of hearings I have attended, I am not sure that anybody has referred to the definition of the state issue before. For what it is worth, I would say that the value of these hearings in many ways is the raising of issues such as that one. I think that is very valuable for our consideration. So thank you, Mr Stokes, for particularly pointing that out.

ACTING CHAIR —I think that is right. Are there any further questions?

Mr Stokes —Can I raise one little issue which I think needs to be raised in a public forum. It is a bit off the point of your committee's major functions, but it needs to be raised. I have concerns about the constitutional position of our monarchy, if we remain a monarchy. There are two crucial issues. The first one is absolutely clear: if the Queen collapses and is incapacitated but remains Queen, a regent cannot exercise her constitutional functions under the Constitution. There really would need to be a constitutional amendment to allow that. I think that is a fairly important issue.

ACTING CHAIR —That is significant, isn't it, because unless the Queen abdicates, there cannot be a successor. There would have to be a regent until she died.

Mr Stokes —The British have regency legislation which applies for them but, to the best of my knowledge—and I have not been able to get to all the documents to check this out—they advised Australia to pass its own regency legislation. But nothing was ever done because of the constitutional difficulties.


Senator ABETZ —When was that?

Mr Stokes —In 1937.

Senator ABETZ —That is why I do not remember it.

Mr Stokes —It was around the time of the crisis over Edward VIII.

ACTING CHAIR —That is an interesting point.

Mr Stokes —And the other is that we really have no easy mechanism—it would be fairly complicated—to change the law of succession to the throne of Australia if the British decided to change theirs.

ACTING CHAIR —It is not possible, as I understand it, for us to unilaterally do that.

Mr Stokes —Yes, we can, by amending covering clause 2 of the Constitution Act.

ACTING CHAIR —Could we?

Mr Stokes —Yes. We could amend that.

Mr DANBY —We could have a continual monarchy in Australia if the British abolished theirs?

Mr Stokes —If they abolished theirs, we could. But if they changed the law of succession, as they are currently proposing to do, it would be rather foolish if we had a monarchy and ended up with a different person.

There are all sorts of ridiculous things. One change the British must consider is getting rid of an archaic 18th century piece of legislation called the Royal Marriage Act. If that applies in Australia, the effect of that is that, if the marriage of a member of the royal family is not approved by the monarch under the Great Seal and the approval lodged with the Privy Council, then the marriage is void and all the children are illegitimate. Of course, we do not have the status of bastards any more in Australian law, but we could have. The only bastards in Australia would be the royals.

Mr ADAMS —I think the House of Lords has got 40 per cent in that regard.

Mr Stokes —It would be a bit odd. The other really interesting thing is that any person who attends a royal marriage which does not go through the correct procedures is subject, under Australian law and the Royal Marriage Act, to outlawry or imprisonment for life. The penalty is forfeiture of all property to the Crown, outlawry for life or life imprisonment. They have never been able to bring a prosecution because nobody has ever come forward as a witness because they are immediately subject to the penalties. Of course, if it is not an offence in British law, and you go along and attend the royal marriage as official Australian delegates and we still have this legislation in Australia, you are in trouble. We should have the power to clean these things up and it should be regularised if we remain a monarchy.


ACTING CHAIR —What is your knowledge of the rules of succession? Are you any good on that?

Mr Stokes —Reasonably.

ACTING CHAIR —As I understand it, the main criterion is that a monarch has to be an heir of the body of Princess Sophia of Hanover?

Mr Stokes —That is right.

ACTING CHAIR —That is a precondition?

Mr Stokes —Yes.

ACTING CHAIR —And there are other preconditions relating to religion as well?

Mr Stokes —Yes, that is right.

ACTING CHAIR —What are they?

Mr Stokes —If the monarch is a Catholic or marries a Catholic, then everybody is immediately relieved of their allegiance. So the monarch ceases to be monarch and, in fact, you are entitled to rebel at that stage, or at least your allegiance to the monarchy ceases. That is the Act of Settlement.

Ms HALL —Can I ask a side question? With our antidiscrimination laws, it is wrong to discriminate on religious grounds.

Mr Stokes —The whole principles of the law of succession—and this is one reason why we should be in a position to change ours as the British do if we want to remain a monarchy—are based on religious prejudice and sexism, because boys succeed before girls.

Ms HALL —That is exactly right.

ACTING CHAIR —Is that still the case? There was an attempt to change that.

Mr Stokes —To put women on the same basis?

ACTING CHAIR —Yes.

Mr Stokes —I know that the British are proposing to do so, but I do not think they have done it yet.

ACTING CHAIR —It would require the consent of all dominions, wouldn't it?

Mr Stokes —No, it would not. That was only a convention and it is now recognised that that convention is dead. So the British can change, and they will do it without reference to


us. But, unless we are in a position where we can change, at that stage we have got different laws of succession.

Mr DANBY —Imagine that Charles III was about to accede to the throne and that in Britain there was a period of great unpopularity, so that they decided to change royal houses and reinstitute the Stuarts, or something like that. Would that place Australia in an absurd position?

Mr Stokes —The consequences of that would be that Charles III would be Charles I of Australia.

Mr DANBY —Unless we change the laws, the House of Windsor would continue here with the Stuarts ruling in England?

Mr Stokes —Yes. A consequence of the Australia Act is that the law of succession to our throne can no longer be changed by the British for us. We have to do it for ourselves. So if we remain a monarchy—if that is the people's vote—we really ought to look at these issues. I thought this would be a good opportunity to put them on the public record because there are some really quite absurd possibilities.

ACTING CHAIR —Thank you very much for coming along and giving us your knowledge.

Mr Stokes —Thank you.


[2.35 p.m.]