The ever increasing willingness for most State Parliaments to amend their Constitutions without reference to the people is anachronistic in modern Australia. State Constitutions should only be changed by referendum by the people of a State!
That said, there are other issues. For example, the late Richard McGarvie in his book "DEMOCRACY choosing Australia's republic" stated:
With the power from the Australia Acts, the Commonwealth Parliament, by Acts supported by the State Parliaments, can amend the provision in the Statute of Westminster that precludes it from amending the Commonwealth Constitution, the covering clauses or the preamble.
(Further reading on this issue can be viewed at http://www.statusquo.org/aru_html/html/const_safe.html)
Clearly, the Commonwealth Parliament should use its power under Section 15(3) of the Australia Acts to either remove the obnoxious Section 15(1) of the Australia Acts or amend it to require a referendum in each State.
To further enhance Australia's collective democracies, Section 106 of the Australian Constitution should also be amended to require that State Constitutions only be changed by State referenda.
(Further reading on this issue can be viewed at http://www.statusquo.org/aru_html/html/const_change.html )
A letter relating to the NSW Constitution Amendment (Pledge of Loyalty) Bill 2004 which has been delivered to each of the Members of the NSW Legislative Council yesterday is shown below for your information:
In May 2005, yourself and other members of the NSW Legislative Council will consider the abovementioned bill to amend the NSW Constitution. This Bill, if passed, would require Members of Parliament and Ministers to take a pledge of loyalty to Australia and the people of NSW instead of swearing allegiance to the Queen of Australia.
A similar change to the Australian constitution would require a referendum; in other words, the people of NSW do not enjoy total sovereignty over their parliament as do the people of Australia federally. Accordingly, the NSW Constitution is light years behind the Australian Constitution in terms of "democracy for the people by the people"!
Until the introduction of the Australia Acts (1986), all laws in NSW weresubject to theUnited Kingdom's Colonial Laws Validity Act 1865. The Colonial Laws Validity Act 1865 constrained the NSW parliament in its ability to amend the NSW constitution. However, since the introduction of the Australia Acts, much of the NSW Constitution can now be changed without a referendum or without external constraint. Additionally, section 106 of the Australian Constitution provides no further protection for the State Constitutions other than confirming that they remain unaltered until changed in accordance with the Constitution of the State! In the Sydney Morning Herald of 19 January 2001, Professor Cheryl Saunders in her article "Updating Our Democracy" stated:
- Fundamental rules about the acquisition of power cannot confidently be left to those who presently hold power or who have regular prospects of doing so.
Clearly, changing a constitution without a referendum does not conform which such sentiment.
That said, and whether or not the Council chooses to approve the Bill in its current form is dependent on whether or not Council members believe they are above the sovereignty of the people of NSW. Alternatively, if the Council votes to approve the Bill with an amendment to require a referendum to let the NSW people also have their say on this issue then democracy in NSW will be considerably enhanced. Such action would also allow for the Legislative Assembly to either abandon the Bill or allow for the procedure at section 5B of the NSW Constitution to systematically take place.
Accordingly, I commend to all members of the Council to add an amendment to require a referendum should they choose to approve the changes provided for in the Bill so that the people of NSW can also have their democratic say. If not, what other parts of the NSW Constitution will be changed in the future without the will of the people of NSW?
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