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No republic ACM campaign team

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THE BISHOP OP AUSTRALIA A ngileen Celholle Chureh

2 ^ h*“ : Newt»«u«ioai4eseei3e RMilei!»· Nuweaill* <021 *UQ *U 7 ‘ijj

PAY TO; IM\*T11 1«B


29th October, 1999

M rs Kerry lone», Executive Director, Nio R e p u b lic - A C M P a [T p flig n l*fa m

Dear Mrs Jones,

Thank you very much for the material sent to me concerning the

furthcoming Referendum. 1 shall certainly be supporting the "No" vote.

H aving examined the official Referendum pamphlet published by the Australian Electoral Commission, I have noticed one proposed addition to the Australian Constitution which does not appear to have been addressed in your literature. 1 refer to the proposed new Section 126;

"126 Operation of Constitution and laws

This Constitution, and all Uwi made under it by the Parliament, shall be binding on the courts, judges, end people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State."

It is many years since 1 studied constitutional law, but this proposal seems to me to strike at the very heart of the nature of Australian federalism. As you will be aware, o u r present Constitution is generally the opposite of that of Canada, where all pow er resides in the central government unless It is devolved

upon the provincial governments. Australia by contrast it not a union but a federution of six sovereign States, which rem ain sovereign States and retain all pow er in any m atter unless together they devolve It upon the Commonwealth, Moreover each of those States remains a constitutional monarchy In its ow n

right (as is recognised m Section 5 of Schedule 2 of the proposed am endm ents). Thus we have thv prospect of a Commonwealth republic consisting of six Stale monarchies. N otw ithstanding this curiouity, the proponed Section 126 seem s to me tv be dangerous for the following reasons:

1. It appears to be in conflict with Section 118, which provides as follows;

118 Recognition of laws etc. of States Pull tilth and credit shall be alvett, throughout the Commonwealth to the laws, the public Acta and records, and the judicial proceedingi of «vary State


The Rioht Reverend J.E . Bromley. BA, 1E4B6XL, 17UM,, MACS.

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2. To the extent lh«t such conflict is the ceae, then the provisions of Section 109 com· into effect, viz·:

109 1 π consistency of lews

When i law of a State Is Inconiiitem with a law of the Commonwealth, the latter shall prevail, and the former shall, to Ae extent of the inconsistency, be invalid.

A "law of the Commonwealth", uf course, means "a valid law of the Commonwealth made in compliance with the Constitution", upheld as such, if necessary, by the High Court.

But the proposed Section 126 must be read in conjunction with these provisions of Section 109. One must therefore ask, w hat w ould the operation of the proposed Section 126 cover that is not covered by Section 1 09 ? In particular merrasei in the power» afthe figfmnontytalth.

e f iht erpttuu o f art hidden in the rpotuised Seetlnn 126 ?

it seems to me that the proposed Section 126 has little if anything to do w ith Australia becoming a republic, unless it gives to the Commonwealth specific power to disregard the exercise within the several States, under their constitutions and laws, of the powers and prerogatives of the Crown. Those

prerogatives could include, inter «fin, the prerogative of mercy exercised by H er Majesty in h er Identity aa a Christian prince.

That aspect notwithstanding, were It not intended and designed generally to extend those power» of the Commonwealth over the States already existing under the provisions of Section 109, then the proposed Section 126 w ould be simply superfluous, and not have been put forward in the first place. It

represents a radical shift in the present system of checks and balances. That is why I any it strikes cunningly at the very heart of the nature of A ustralian

federalism. To my mind It is a very dangerous time-bomb.

i would be grateful for any observations you may caro to offer on this subject.

Ever yours sincerely,

(The Right Reverend) JJB. BROMLEY, Bishop of A ustralia