Can you change the Australian Constitution without a referendum?

[@alisonlilley3039]

Always enjoy the clarity of your logical presentations.

[@PhilH-ud4dx]

The High Court's 1915 ruling in the Wheat Case removed the Inter-State Commission's key powers, and no further appointments were made after the founding commissioners' appointment terms were completed. A few attempts were made to revive it, but (in Wikipedia's description) it's defunct. So although the Constitution says such a commission shall exist, it does not. Nobody seems to mind.

[@occupiedaustralia9952]

"We all know how hard it is to try and change the constitution by referendum" , because the people keep giving a resounding no.

[@davidunwin7868]

Who would've thought constitutional law would be fascinating watching on KZbin? 😂 Keep it up! ❤ 😊

[@larrybaby9377]

Marvellous clarity on a tricky topic. Thanks!

[@AlexBaz143]

Weirdly this may be my favourite constitutional clarion thus far! Whenever I hear all this speculating on constitutional rights edge cases, I look forward even more to learning constitutional law in my degree!

[@constitutionalclarion1901]

I hope your constitutional law studies fulfil your expectations!

[@JacobKnight-Barendse-pe4jk]

I didn’t know you have writen a book on the Australia Acts…. If I can anthropomorphise the Country of Australia for a second, I definitely think it would be in Australia’s top ten list of its most important laws. I hope I’ll be able to find a copy of your book and give it a read. Once again amazing video!

[@constitutionalclarion1901]

Yes, I spent years digging up all the documents from each State, the Commonwealth and the UK on the various drafts and the reasons for drafting changes. The story is quite fascinating. The book was published in 2010 by The Federation Press and you can probably still buy it directly from them.

[@JacobKnight-Barendse-pe4jk]

@@constitutionalclarion1901I love your attention to detail in all your videos so I’m sure the same will be true for your books , yes you can get it on Federation press, I’ll be sure to be getting myself a copy in the near future :)

[@InJusticeAustralia]

Could you please do a video about what process one must / may take to have a flawed piece of legislation brought to Parliament to be amended or repealed. Thank you.

[@johnlonie7899]

Very interesting. Would you do a vid one day on how the High Court has altered the balance of power between the states and the Commonwealth over the years?

[@constitutionalclarion1901]

@braytongoodall2169 OK - I've added it to the list.

[@cesargodoy2920]

Could a(international) treaty change the constitution or at least how it functions? Great video as always professor Twomey

[@constitutionalclarion1901]

Yes, I thought of adding in treaties as a source of the expansion of Commonwealth power, but I thought the video was getting too long. I'll so a separate one on treaties and the external affairs power.

[@cesargodoy2920]

@@constitutionalclarion1901 I cant wait!

[@Robert-xs2mv]

@@cesargodoy2920second that

[@glennsimpson7659]

It is very heartwarming to listen to a closely reasoned and soundly based constitutional talk, after so much media (and indeed academic) alternative narrative about the lack of legitimacy of, and consequent ‘crisis’ in, the ‘settler government in Canberra’ (AKA Commonwealth of Australia) and the claim that aboriginal people never ceded sovereignty and therefore continue to exercise exclusive sovereignty over Australia, Constitution notwithstanding. Only a highly trained and brilliantly imaginative intellect could believe such things are true or could ever be acceptable to the Australian people. Of course, one should not lose sight of Dr J Goebells’ aphorism that ‘what matters, exclusively, is what is believed’, and therefore the Constitution is ultimately a human artifact that is only what everyone agrees it is. Constitutions also come and go with popular will - the French Republic has some form in this area. And Constitutions are gossamer to storm troopers, while ‘Ignorance is strength’. But it is pleasing that you do such a good job dispelling ignorance about the only Constitution Australia has. For those of us who believe in and rely on the rule of law, logic and reason based on historical legitimacy and continuity have an appeal that never wanes.

[@saimoncole]

Does the Succession to the Crown Act 2015 (Cth) empower the Australian parliament to allow an Australian to succeed to the throne of Australia?

[@constitutionalclarion1901]

I get asked this type of question quite a lot, and I'll try to do a video on it. Short answer - it depends on how a court would interpret and apply covering clause 2 and the oath in the schedule to the Constitution.

[@saimoncole]

@constitutionalclarion1901 I'm glad to hear many people ask you about it. I look forward to the video! Thank you. It's hard to see how a court could interpret clause 2 and the oath to refer to someone like the Earl of Loudoun who has a claim to the throne prior to Queen Victoria. I've written a summary of the issues on my blog - equanimity. blog - under the title Australian Constitution Monarchy (under 'Projects').

[@Robert-xs2mv]

5:44 succession to the crown act 2015 ( cth) peaked my interest. Does that mean Australia could reject King Charles, or does this mean something entirely different?

[@constitutionalclarion1901]

So far, Australia has opted to keep its succession laws the same as those in the UK. We could arguably alter them, so that different criteria applied for succession to the Crown of Australia - although there is still an issue about the application of covering clause 2 of the Commonwealth Constitution. The High Court has previously suggested that it is merely an interpretation clause, but this is not a binding finding. One day I will explain it in more detail.

[@Robert-xs2mv]

@@constitutionalclarion1901 Thank, your response to another comment clarified a fair bit. sadly every time I suggest Australia should have its own king or queen, even drop some suggestion, and folks just laugh. And that is what I, as an immigrant from a non British monarchy, laugh at a foreign monarch being the head of state of Australia.

[@powermusicman2930]

Great presentation, can I ask, is it not so the covering clauses, Sections 1 to 9 of the Act (NOT the Constitution proper @ clause 9) are entrenched law and cant be changed?

[@constitutionalclarion1901]

The covering clauses are in the British Act. They could obviously be changed by the Westminster Parliament, but that would have no effect as part of Australian law. Section 15 of the Australia Acts 1986 also provides a mechanism to change them, through the means of amendments to the Statute of Westminster. This was to ensure that control of all Australia's constitutional documents are in Australian hands. So yes, the covering clauses can be changed - through cooperative Commonwealth and State legislation.

[@Rachaelshaw7]

Thank you for your channel and effort. Regarding the pandemic video, (curious) in that video you lent on the fact that people could vote out the government if they didn't like what they were doing. That is fair enough but the next government that comes in could just do the same thing and be justified by the constitution. How on earth would we have a referendum around how people think the next pandemic should be handled?

[@constitutionalclarion1901]

The point is that political parties are generally responsive to public views. If there is a sufficiently sizeable portion of the public that wants X or is opposed to Y, a political party will commonly (albeit, not always) adopt that policy, in order to garner the votes. While there were loud complaints during the pandemic about lock-downs, border closures, etc, when it came to elections, the people overwhelmingly returned the governments that had been toughest in applying lock-downs and closing borders. This suggested that while those objecting had the loudest voices, they did not have majority support, and that governments were actually responding to the wishes of the people in how they dealt with the pandemic, resulting in their subsequent electoral success.

[@sheilaghbolt3601]

Great video again! Thanks so much.

[@constitutionalclarion1901]

You're welcome!

[@JonathanLee-gl2bb]

Note carefully Anne says it would be politically unlikely for the ' unanimity procedure ' to be used to change the Constitution - not that it could not be done . Also it is important to remember that due to the UKs ' Sovereignty of Parliament ' principle ( any latter Act repeals or amends a former Act to the extent of any inconsistency ) The Australia Act ( UK ) 1986 does that to the 1901 Constitution and amends S 128 simply because the Constitution is a ' latter ' Act . Note also that the Australia Acts terminated the power of the Crown of the UK to legislate for Australia - whereas since 1986 the Crown of the UK ie its Parliament cannot legislate fo Australia --- so it did change the Constitution - and without a referendum . The Constitution still states we are under the Crown of the UK .

[@constitutionalclarion1901]

There was a lot of debate during the enactment of the Australia Acts about whether they would, or legally could, amend the Constitution. The intention was not to do so. (For all the detail, drawn from primary documents, see my book on 'The Australia Acts 1986 - Australia's Statutes of Independence' (Federation Press, 2010)). The Australia Acts primarily dealt with the relationship between the States and the UK, including some minor changes to State Constitution. In contrast, the Australia Acts did not alter any of the text of the Commonwealth Constitution. While they altered the broader constitutional context, such as the ability of the UK Parliament to legislate for Australia, this continuing UK power is not specified or protected anywhere in the Constitution. Moreover, s 51(xxxviii) gives the power to enact laws that only the UK could have enacted at federation - hence it is authorised by the Constitution and not an alteration requiring a referendum in s 128.

[@JonathanLee-gl2bb]

@@constitutionalclarion1901 - Primarily but not exclusively - the preamble includes the Commonwealth - and says ' bringing the Constitutional arrangements ' into conformity . That , imho says it changes the Constitution ( to the extent of any inconsistency ). It also states that the C of A is constituted ' UNDER the Crown of the UK ' so once the Crown of the UK could not Legislate for Australia we were no longer UNDER the Crown of the UK - ie a change to the Constitution . Section 15 was simply the UK transferring complete Sovereignty to Australia .( albeit the entire Commonwealth ).

[@JonathanLee-gl2bb]

An Act to bring constitutional arrangements affecting the COMMONWEALTH and the States

[@JamesVCTH]

@@JonathanLee-gl2bbTheres Constitutional in an abstract sense (ie pertaining to the composition of the structure of government). Then there’s constitutional in the narrow sense, (ie pertaining to the actual physical written document). Whilst the Australia Acts altered Australian constitutional arrangements (in the broad sense) it didn’t alter the actual document itself. It’s like the word “government” can also have multiple meanings. In a Westminster style sense, the word “government” typically refers to the executive branch specifically. Whilst if we use the word “government” in a broader sense it can mean all three branches together.

[@JonathanLee-gl2bb]

@@JamesVCTH It didn't need to alter the Constitution in the physical sense a latter law of the UK amends or repeals a former law - to the extent of any inconsistency . Meaning the actual words of the Constitution do not have to be changed . There are still parts of the Constitution Act that if taken literally make no sense now and in the High Courts words are ' spent ' . Australia is no longer a ' self governing colony ' neither is it ' under the Crown of the UK ' - but the words are still in the Act .

[@TheBigmongrel]

So who is the Australian head of state that conforms to the pre amble of the Constitution? Is it the British monarch or Charles, "king of Australia?" They are two distinct titles.

[@j.w.osullivan429]

Covering Clause 2 makes clear that any reference to "The Queen" shall also cover her heirs and successors. So although it literally says "The Queen" in a lot of the Constitution, we can read that to mean "King Charles III" today.

[@jockgardiner7261]

Thanks for the video. What about constitutional conventions? Is there a reason why you didn't cover the link between constitutional change and changes in certain conventions?

[@constitutionalclarion1901]

It would have made the video too long and complex. Yes, conventions do change gradually over time - for example, a changed convention about who advises the monarch regarding Australia was instrumental in Australia obtaining independence from the UK. But again, it's not an alteration in the text of the Constitution (although it may produce a distorted reading of the covering clauses).

[@whophd]

In extremis … the crazy extremes are the only examples that really matter. If the UK and/or the Australian parliaments repealed the Australia Acts 1986, what then? Do we de facto return to the situation as before? I’d say (and expect we concur) that nothing is ever as persuasive as a referendum, and should any doubt exist, it would be extinguished with a vote of the people. (We’ve seen some risky hi-jinx in the last few decades with SCOTUS, and while I’m glad our High Court is nothing like theirs, a century is a long time in constitutional politics). As for the idea that “the court did what the people refused to do”, I’d qualify that with the specifics of the referendum question that failed. Too often there’s some kind of unpopular detail in a referendum proposal that gives the people a reason to reject it. That doesn’t mean there wasn’t popular support for the issue at large - two great examples being the republic, and Northern Territory statehood. There’s something to be said for the complete lack of public reaction when a High Court decision “alters” the Constitution - or should I say, the notability of when it does, like Mabo and Wik. I can’t think of any other examples where people talked about it, like Workchoices or the various corporations powers expansions. Again, compare that to SCOTUS, where it becomes a life-changer every decade or so. Dismantling DOMA (Defence of Marriage Act) seemed like such a giant reach for power by the court. Roe, and its abolition are probably easier to explain in terms of head of power, but it’s just a strange state of affairs (in Australian eyes) that a matter that could be legislated is simply never contemplated to be. We all know why, but the end result is a massive expansion in the role of a court. All of which is to say I gave thanks when I visited the High Court as a tourist last year, and suddenly noticed how much better our situation really is.

[@constitutionalclarion1901]

Interesting questions. If the UK repealed the Australia Act 1986 (UK), (and it actually did in 1996 repeal s 4 of this Act re the application of the Merchant Shipping Act, as it was no longer relevant) then its repeal makes no difference to Australia, as it does not affect how the Act applies as part of Australian law. If the Commonwealth Parliament tried to repeal the Australia Act 1986 (Cth), this raises an interesting question of whether it could legally do so without the request or concurrence of all the States, as this was a pre-condition to the power to enact the law and may therefore be a pre-condition to its repeal. We just don't know, as this question has not been decided by the High Court. As for whether the prior situation revives after legislation which made major constitutional changes is later repealed, an analogous situation arose recently in the UK. It enacted fixed-term Parliament legislation, which got rid of the monarch's prerogative to dissolve Parliament and hold an election. When it later decided to repeal that legislation, there was a question as to whether the prerogative to dissolve Parliament spontaneously revived, or had ceased to exist. To avoid the problem, legislation provided for the revival of the prerogative (which technically makes it a power based in statute, rather than the prerogative, but the British have turned a blind eye to this inconvenient truth).

[@whophd]

​@@constitutionalclarion1901 Such a good example after last week - that UK fixed-term legislation (and its lack of de facto power & respect afforded to it), so different in experience to the NSW constitution, when its fixed-term legislation, then referendum, was undertaken. In fact, I'd like to continue the comparisons - the Brexit "referendum" was not a referendum at all, having more in common legally with the 2017 Marriage Equality postal "plebiscite" (and even that term I'm not sure enough of). And yet, the imprimatur is still there, through the engagement of the universal franchise - this imperative was pushed again and again, whether for the (hasty) application of Article 50 to engage the 2-year deadline for leaving the European Union, or for various calls to continue delaying the process through 2019-2020. At all times it was entirely within the UK Parliament's power to begin, control and delay this process. But the "people's wishes" were mentioned, and had to be respected. Because how could you not? (Of course, any hint of a second referendum was shot right down, in a volley of disingenuous denial).

[@ayy232]

Interestingly, using a law intended give greater independence to New Zealand to disapply section 8 of the Statute of Westminster 1931 and thereby allow the New Zealand Parliament amend or repeal the NZ Constitution Act 1852 is precisely what the New Zealand Parliament did in 1947 with the Statute of Westminster Adoption Act 1947 (NZ), the New Zealand Constitution Amendment (Request and Consent) Act 1947 (NZ) and the New Zealand Constitution (Amendment) Act 1947 (UK).

[@constitutionalclarion1901]

But the big difference is that New Zealand is not a federation. In Australia, the Constitution is entrenched to ensure that the Commonwealth cannot unilaterally change it to destroy the distribution of powers between the Commonwealth and the States and the federal system as a whole. The Constitution also contains that qualification in s 128 that the Constitution may only be altered in the specified way. So the circumstances are different.

[@ayy232]

@@constitutionalclarion1901 Given that all the State Parliaments would have to consent to use section 15 of the Australia Act (UK), isn't this more of a popular sovereignty issue rather than a federalism issue? One could imagine a wartime scenario, for instance, where there was a recognised need to extend the life of the Commonwealth Parliament, and to avoid a wartime general election or referendum. (I'm not an Australian, so forgive me if the scenario sounds absurd.)

[@dr0pb3ar64]

How was the Constitution 1900 1901 enacted "Revised".? what was Changed in to the 2001 Australian Constitution.

[@constitutionalclarion1901]

It has been amended eight times by referendums passed by the Australian people. See the results on the Australian Electoral Commission website.

[@sallyweatherley3991]

Does the uk act apply to all commonwealth countries, or just Australia?

[@constitutionalclarion1901]

Both the UK's 'Commonwealth of Australia Constitution Act 1900' and the 'Australia Act 1986' are only relevant to Australia. But there is other legislation that applies more broadly, such as the Statute of Westminster 1931. It depends on the terms of the statute. (I also note that the term 'Commonwealth' can be confusing, because sometimes it means the 'Commonwealth of Australia' as a polity, or the federal level of government in Australia, and other times it means the broader 'Commonwealth of Nations'.)

[@mickmccluand4677]

2:00 Is this why we recently have a thing called the National Cabinet?

[@constitutionalclarion1901]

National Cabinet may have a role in achieving the underlying agreement that supports a reference under s 51(xxxvii), but more commonly it is other inter-governmental bodies, such as the committee of Attorneys-General (which used to be called SCAG - although I'm not sure they still use that acronym).

[@kenwaugh7]

The constitution states that the monarch must be Queen Vic’s heirs and successors ACCORDING TO LAW. Can’t we just change the law to say, for example, that says Queen Vic’s heir and successor is considered to be a President, appointed by a 2/3 majority vote of the parliament (aka 1999)?

[@cesargodoy2920]

they got you with"the heir".plus the sucession of the crown act makes it clear they mean royal family members

[@constitutionalclarion1901]

There's an issue about how far you can go in changing the meaning of a Constitution by re-defining its words - eg to what extent can you legislate to affect the meaning of 'alien' in the Constitution by changing citizenship laws? For example, when the republic was being addressed in 1999, there was an issue about whether NSW needed a separate referendum to change its own Constitution to cut off links with the Queen. None of the sections in the State Constitution that referred to the monarch were 'entrenched', so they could be changed without a referendum. But there were other sections that were entrenched which referred to 'royal assent'. So could you say that the new head of state gives 'royal assent' and not change the entrenched section, or does getting rid of the monarch mean that the assent is no longer 'royal', impliedly (and invalidly) amending the section? In the end, the view was taken that the safest course would be to hold a State referendum, but it was a tricky question. As the Commonwealth republic referendum failed, we never got to change the State Constitution, so the issue was never tested.

[@kenwaugh7]

@@constitutionalclarion1901 Wow, thanks for the detailed response Anne. Love your channel!!!

[@Robert-xs2mv]

@@constitutionalclarion1901my answer, kind of.

[@whophd]

I do like how you sidestepped the muddy puddle that is the Federal Council of Australasia 😅 “I’ll just put this … with the rest of the fire” as someone famously said. Separately, I am a little fascinated by the concepts of councils, assemblies and how they differ. I have been on the elected committees of community associations and strata committees, and my training in public law & fed con kicked in when I noticed which “powers” we had and had missing, requiring a full vote of the SGM or AGM. My antennae went up, and it was directly analogous to the calling of a legislative assembly - when we wanted to pass a budget, or requisition a capital expense. This is despite the chair, treasurer and secretary operating as “ministers” with all the powers to make unlimited other decisions throughout the year, between General Meetings. (One guess which position I held). All this made me reflect on the birth of NSW’s democracy, where the Legislative Council predated the Legislative Assembly - and those two names gave the historic link between all the levels of government, from micro to macro. Executive councils, elected councils, assemblies and houses … they all evolved from each other. And finally the mother of all parliaments … had such an interrupted existence in its early centuries. It was just summoned into existence to grant extra legitimacy as required? It’s always been a tapestry of constitutions and consent. We can always say the Crown is powerful or the Prime Minister is powerful, but could they live with the consent of the population? Sooner or later they have to.

[@constitutionalclarion1901]

Thanks. The Federal Council of Australasia is quite interesting - but a rabbit hole to explore on another occasion. I'm glad your public law training has proved useful. I also find that the principles of federalism are quite useful when dealing with corporate structures and understanding that the centralisation of everything is not the most efficient. Yes, the names of these governing bodies (councils, assemblies, houses, Parliament) were all quite important and meaningful in their day, but not so much today.

[@whophd]

​@@constitutionalclarion1901 Can't wait to hear about it in a future video. It ties into one of my other favourite rabbit holes, almost in the genre of Wrong Answers Only: "Is Australia independent of Britain, and when did it become so?" Because, I can think of around 10 or 12 multiple choice options off the top of my head, ranging from "we still aren't - check the back of the coin in your pocket" to "we always were, since we always needed a governor", if only because the 'tyranny of distance' functionally gave us a form of local autonomy from Westminster in a way not enjoyed by Belfast and Balmoral … or even Birmingham and Bedlam. New South Wales and Victoria couldn't even be bridled on a matter as simple as choosing a railway gauge, and they rarely if ever used the Pound Stirling to collect taxes. I know funds practically or directly came from Britain to Australia, but did we ever pay a tax? Was there ever a year when outgoings were higher than receipts? It was enough for America to get upset, a few decades earlier. I certainly know that Australians don't get to complain about funding the royal family. And Brexit helped prove, once and for all, that any financial ties that once existed did not remain. (The legal question of independence reminds me of a great KZbin video about the true successor to the Roman Empire - and the KZbinr took a poll of several other big KZbinrs, with many different answers, some of which were VERY convincing - and then summed it up by delivering his own answer that was very different, based on courts and legal recognition … it quite persuasive).

[@davidwilkie9551]

Referred to as "making sausage" not a desirable thing to witness the contents of?

[@arzucchi1]

If the UK becomes a republic does the new UK head of state become the Australian Head of State as the lawful successor as UK Head of State of the British Monarch? or would we still have a monarch? thanks

[@constitutionalclarion1901]

King Charles is currently Australia's monarch because of Australia's own rules of succession. So if he ceased being King of the UK, he would still be King of Australia under our law, unless we changed it. There are, however, arguments about how to interpret covering clause 2 of the Constitution about references to the Queen extending to Her Majesty's "heirs and successors in the sovereignty of the United Kingdom". The issue is too complex to deal with here in a comments, but maybe one day I will do a video about it.

[@arzucchi1]

thanks Professor Twomey much appreciated.

[@jsma9999]

In short Answer NO. Long answer Yes. Federal Council of Austral-Asia What is that?

[@constitutionalclarion1901]

The Federal Council of Australasia was the earlier attempt at a loose kind of confederation back in 1885. For political reasons, it never really worked and was overtaken by federation in 1901.

[@jsma9999]

@@constitutionalclarion1901 thanks for info 👍

[@billhackett6715]

The Vctorian Constitution is an act of parliament. As the parliamentarians can alter this Constitution without a Victorian referendum could this be anothert way of altering the federal Constitution if all states copy a Victorian Constitutional change.

[@constitutionalclarion1901]

Some parts of the Victorian Constitution can be changed by legislation, without a referendum. Other parts are validly entrenched, and require a referendum to change. Still others state that they require a referendum, but this is probably invalid. There's quite a complex reasons why, which one day I'll try to explain. States do, from time to time, agree to enact the same legislation in each State to create a uniform scheme. But none of this legislation can alter the terms of the Commonwealth Constitution, because all State laws (including State Constitutions) are subject to the Commonwealth Constitution).

[@aodaliya]

Your conclusion that it is highly unlikely that the Australian Constitution can be amended except by way of a referendum leaves the Australian Parliament with only two options regarding executive authority: (i) maintain the British Monarch King Charles III as head of state, or else (ii) cut the Gordian Knot and pass legislation replacing the executive role of the British monarch with an Australian indigenous body (although Queen Elizabeth would certainly have balked at the idea, King Charles would almost certainly sign off on a Bill to transfer authority from himself to an indigenous executive body). It is almost impossible to see a time when all states will agree and/or referendum succeed in establishing indigenous sovereignty, therefore a “courageous” member of the Federal Parliament would need to take this first significant step: “Private Members Bill to transfer sovereignty from the British Crown to an Australian Indigenous Body”. Happy to read your comments.

[@DavidNotSolomon]

What you are proposing here is not only treasonous but autocratic as it cuts out the will of the Australian people.

[@aodaliya]

The members of the Parliament are elected by the people and represent the people - and therefore are in a position to exercise the will of the people in bringing about this most necessary and urgent transformation to Australia's sovereignty. Using terms such as "treasonous" plays "the man not the ball" and it is sad to see such an intimidating strategy used to discuss this most important and pressing issue - which, unfortnately, Australia is forced to place on the back burner because of the overly stringent referendum process. Reply - “Treasonous” “Rubbish”, I wonder what descriptor is coming next. Australia might not exercise “parliamentary sovereignty”, but the parliament that passed the Commonwealth of Australia Constitution Act (1900) into law, the United Kingdom, does !! - as does New Zealand, the Netherlands, Sweden, Finland, and Jamaica. Australia is a federation and the constitution brought all the disparate states together, but that doesn’t mean we need to be shackled to it for eternity - the Parliament, not the King, should (and can) assert and exercise sovereign powers on behalf of the people who elect the Parliament - the “extreme set of referendum requirements” under the Australian Constitution is simply a conservative stratagem to inhibit change, an albatross which (as we saw with the 2023 “Voice Referendum”) is slowly strangling the Australian body politic.

[@DavidNotSolomon]

@@aodaliya Rubbish - the Parliament does not have carte-blanche to do whatever it wants. It certainly cannot change the rules by which it itself is governed and operates - and that is the constitution. The head of state is part of this. In any case, why do you object to asking the Australian people what they want on these issues? Did you not just say the the Parliament is supposed to represent those people and those views? So why object to the people being asked? There is a reason we have a stringent process - it is to prevent abuse and the loss of our rights and freedoms, for example if the parliament can dissolve parliament in the constitution - what are we then? A tin-pot dictatorship?

[@aodaliya]

@@DavidNotSolomon “Treasonous” “Rubbish”, I wonder what descriptor is coming next. Australia might not exercise “parliamentary sovereignty”, but the parliament that passed the Commonwealth of Australia Constitution Act (1900) into law, the United Kingdom, does !! - as does New Zealand, the Netherlands, Sweden, Finland, and Jamaica. Australia is a federation and the constitution brought all the disparate states together, but that doesn’t mean we need to be shackled to it for eternity - the Parliament, not the King, should (and can) assert and exercise sovereign powers on behalf of the people who elect the Parliament - the “extreme set of referendum requirements” under the Australian Constitution is simply a conservative stratagem to inhibit change, an albatross which (as we saw with the 2023 “Voice" Referendum) is slowly strangling the Australian body politic.

[@aodaliya]

@@DavidNotSolomon “Treasonous” “Rubbish”, I wonder what descriptor is coming next. Australia might not exercise “parliamentary sovereignty”, but the parliament that passed the Commonwealth of Australia Constitution Act (1900) into law, the United Kingdom, does !! - as does New Zealand, the Netherlands, Sweden, Finland, and Jamaica. Australia is a federation and the constitution brought all the disparate states together, but that doesn’t mean we need to be shackled to it for eternity - the Parliament, not the King, should (and can) assert and exercise sovereign powers on behalf of the people who elect the Parliament - the “extreme set of referendum requirements” under the Australian Constitution is simply a conservative stratagem to inhibit change, an albatross which (as we saw with the 2023 “Voice Referendum") is slowly strangling the Australian body politic.

[@APP1E5]

How could the British Parliament change the constitution as they are also bound by it because section 128 of their act would apply as well. That opens the question of The Statute of Westminster (SoW) and the "constitutional arrangements." I do not know what existed for the dominions' methods of changing their respective constitutions but the Constitution of the Commonwealth of Australia (both 1900 UK and 1901) still had the provision of Section 128. By saying, in that statute, it (SoW) is repugnant to no other law would not be true considering the UK would also be bound by Section 128 and thereby cannot offer or remove any other power to the Parliament of The Commonwealth of Australia without S128, yet that power was offered and accepted via the Preamble of (SoW). Furthermore, Menzies changed the Royal Style and Title without the power of S128 but with that granted in the preamble of (SoW) by gaining assent of all dominions of the British Cth, yet in 1973 Whitlam did not receive assent from the Canadians, who were still a dominion at that time. It appears that if it is legislated "the sky is purple" then it is. I would appreciate some clarity there if you would not mind.

[@constitutionalclarion1901]

First, the UK Parliament is a sovereign Parliament and can therefore amend or repeal any of its laws. Section 128 of the Commonwealth Constitution does not in any way prevent the Westminster Parliament from altering the Commonwealth of Australia Constitution Act 1900. However, since the passage of the Australia Acts 1986, any such change by the Westminster Parliament would not have any effect as part of Australian law. Second, Royal Style and Titles legislation does not change the Constitution at all. All it does is give the monarch a title that they can use with respect to Australia. It makes no substantive change to the role or powers of the monarch in Australia.

[@APP1E5]

@@constitutionalclarion1901 Thank you for the information. I did listen to the whole clip, I also agree the style and Titles act does not change the constitution. I should have posed this as a question, rather than a statement. The SoW preamble is clear that any one of the dominions, including the CoA wanted to change the title, they must receive assent from all the other dominions. How did Whitlam avoid the assent from the Canadian Parliament? I did also watch a few other clips of yours and David's (Auspol) and I am trying to understand by obtaining "all sides of the story," pointless listening to one. Again, Thank you.

[@geefor1942]

Thank you for what appears to be an alarming report. One of my concerns was the amendment of the Bio Security Act 1911, to become the BioSecurity Amendment Act 20017. This act indicates that the government was planning to change the law of Australia surreptitiously three years before a “pandemic” was invented when a man died in Perth along with the GG authorising 6 portfolios for the PM at the same time that the Bio Security amendment Act was enacted placing the Health minister into a position of actual dictatorial powers. If this was legal then it’s past time our constitution was rewritten or those people involved gaoled.

[@constitutionalclarion1901]

I'm afraid there is no basis for what you have written. There was no Biosecurity Act 1911. Perhaps you are thinking of the Quarantine Act 1908? The Biosecurity Act was enacted in 2015, a long time before the COVID-19 pandemic. The debate about it was largely directed at its primary day-to-day use which is keeping animal and plant diseases such as rabies and fire blight out of Australia. It is why we have strict customs controls when you enter the country. There were no surreptitious changes of the law - laws are amended openly in Parliament, and subordinate legislation is made pursuant to powers granted by Parliament. Finally, the Commonwealth health minister exercised few powers under the Biosecurity Act in Australia during the pandemic (apart from closing national borders and some restriction of movement into Indigenous communities), because most powers belonged to and were exercised by State ministers (eg lockdowns).

[@richardsaunders3743]

Lord Acton famously said: Power tends to corrupt, and absolute power corrupts absolutely.

[@NeilCotter]

It sounds odd that the people have opposed a universal franchise, let alone doing so twice? I assume it did not have bipartisan support due to opposition from conservatives with a foundational belief that some people are significantly more equal than others.

[@constitutionalclarion1901]

It's not even that sophisticated. It is ordinarily the case that Oppositions oppose referendums because it is a way of scoring points against the government. So they wage scare campaigns against the proposal, regardless of its worth or content. They depict it as a Trojan Horse or some kind of frightening change with unintended or unknown consequences. It is very easy to do, and extremely hard to prevent.

[@roxee57]

The court has interpreted section 116 of the constitution to not mean a separation of religion and state, but to mean the treatment of all religions equally. Hence tax payers are funding schools run by any religion recognised by the state that wants to run one. I bet if Australians were asked in a referendum if they wanted separation of religion and state instead of the state sponsored religious pluralism we currently have Australians would vote for the former.

[@DavidNotSolomon]

The idea of a secular state came from the same ideas that drove the treaty of Westphalia. The state in England persecuted first Catholics, then protestants, then Catholics, then Protestants, The separation was to remove the state from the affairs of the church, not to remove the church (or religion) from the state. If it was meant to remove religion from the state, then prayers before parliament meetings would have been removed also swearing on a bible etc.

[@hypnopompicstate9910]

Tax payers should get a choice on how their children are educated. We are not living in China.

[@davidharris7431]

Well , it shouldn't be possible no matter what silly legal loophole is used .

[@raymondstone9636]

Hmmmn one wonders. Which Political Party will test it.

[@pamelawinfield9211]

So, what’s the Australian constitution worth? To the people, nothing. To so-called Elected politicians, everything is possible

[@constitutionalclarion1901]

Hmm, it's probably worth quite a bit to you if you have ever received any social security benefits, or anticipate receiving the aged pension, or use a hospital, or travel on a road. But what have the Romans ever done for us...?

[@aussiereuben1]

Parliament just won’t accept the will of the people.

[@TheAbeKane]

Wow the high court did us dirty. Thank you for your video Hey mate, are you able to do a guide on writing to govt appropriately. I wrote to fed about the imprisonment of whistleblowers but I don't think I worded it well because all they did was write back they are doing great things to protect whistleblowers, which is clearly, strongly false and I don't know how to say that in an appropriate way.

[@constitutionalclarion1901]

When Governments get a lot of letters on a hot topic, they tend to produce form letters to respond. They will just set out government policy and not really answer your question. It looks like that is what you have received. I've never worked out the magic formula for cutting through and getting a real answer - it's really hard. But I can tell you that you definitely need to be polite, provide evidence for any claims and be constructive (offering potential solutions, rather than just criticism). Letters that are snide, rude or aggressive always get a form letter in response and don't achieve anything.

[@TheAbeKane]

@@constitutionalclarion1901 I really did try to be nice and polite, so maybe I succeeded and it was that they received too many letters, like you said. Thank you so much for you explanation, I really appreciate it.

[@husaberg650]

Should you be able to? No.