The Australian Constitution and Council of Australian Governments

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Introduction

A constitution is an important document about the governance of a given country. It provides a set of rules that guide the affairs of the state. In the COAG meeting, several proposals were made to amend the Australian constitution. For example, it was decided that a new form of appointment procedure should be used to select representatives to the Queen. In this case, the representatives were to be elected by their respective parliaments. However, the Premier of Victoria was not happy with the way the matters were handled. The official was not impressed by the various attempts to politicize the position of representative to the Crown. Their reservations notwithstanding, the Premier did concur with the proposals made in the COAG meeting. As a result, an amendment was the only way the proposed measures could take effect.

In this paper, the author provides legal advice to the Premier. The officer sought expert opinion on three major issues. The first is the process to be followed before such a proposal could take effect. The assumption is that the application will be a formal amendment to the constitution. The second issue involves the alternative course of action that the government can take if the Senate rejects the proposal. Finally, the Premier expressed the desire to know the process involved before the suggestions could become formal amendments to the Victorian constitution.

The Process to be followed

Before an amendment to the constitution can take effect, several factors need to be put into consideration. For example, it is important to ensure that the proposal to change the laws is in response to the constitutional requirements that underlie its operationalization. The first requirement that should be met in the initialization of the process that sets the stage for the amendment of the constitution is prior notice. The public should be notified of the intention to amend the laws. The notification should be expressed in a clear, logical, and precise manner. It can be achieved through a gazette. The essence of this requirement is to enlighten the people and make them aware of the issue that is about to be changed. The notice should be placed in an open area that is recognized and accessed by the majority of the citizens. Accessibility of the proposed item should be made possible. As a result, people are allowed to take sides depending on how they feel about the issue.

It is the role of the government to ensure that the proposition is in line with all constitutional provisions and administrative principles. In this case, it must be established that the proposal is not built along the lines of absolute biasness. It is important to establish that the supporters of the move were not under actuation of business when they were drafting the proposals. If it is found that the parties were under pressure, the decision is disregarded.

The principle of legality is another key feature that must be taken into consideration. It is important to address this issue before changing the administrative structures of the constitution. In some cases, other laws related to administration may contradict the proposed changes. In such cases, it is plausible to do away with the proposal. Similarly, the principle that underlies legitimate expectation should be adhered to. The citizens expect their leader to represent them before the Crown. As a result, any action that is likely to affect this representation must be legitimate. Furthermore, it must be something that people can identify within their rational thinking. To this end, they must be aware that such a movement exists.

Public opinion is another factor that should be addressed in the process of initiating formal amendments to the constitution. It is the responsibility of all citizens with sound minds to take part in the affairs that are pertinent to the state. Public enlightenment should be part of the process leading to the amendments.

The fact that one can propose an amendment to the constitution does not mean that such contemplations will be successful. Some proposed changes are not allowed by the objects and the spirit of the constitution. With regards to the current COAG proposal, the Premier should know that the case falls in the category of those allowed under the law. Rules that pertain to the election and determination of representatives are enshrined in the constitution. They are covered from section twenty-six to section forty of the Australian Constitution.

Another feature that characterizes the preliminary stages of the amendment process is strong backing. It is the duty of the individual proposing the changes to seek the support of the pertinent stakeholders. To this end, one cannot objectively propose to introduce changes to the constitution if they cannot marshal support for the same. There is a standard threshold that determines the procedure of ‘allowing or disallowing’ changes to a section of the constitution in Australia. The clamor for change must be in line with the legal process that guides the affairs of the citizens.

The Premier should be informed that changing the constitution in Australia entails several procedures, which need to be followed about the proposals made in COAG. A referendum is the most effective way of effecting changes to the instruments of governance. Preparations have to be made to hold a successful referendum. For example, the people should be provided with adequate information as far as the issues to be handled are concerned. In light of this, the public should be made aware of the COAG proposals and their impacts on the country.

Apart from referendums, proposed changes can be implemented through a court of law. In such cases, the court is expected to determine the legality of the proposals. The parties proposing the amendments are expected to adhere to the judicial requirements about amendments to the constitution. The process involves hiring an attorney and preparing the necessary paperwork. It also involves the presentation of the general credentials that supplement the arguments made before a court of law. In Australia, political adjustments can also be used to facilitate the process of amending the Constitution. The country’s political setup may be altered to support the changes. To achieve this, it is important to lobby the legislators to secure their support.

The COAG proposition must be regarded as reasonable for it to pass through the various legal processes. Bureaucrats and leaders should come up with ideas that are rational as far as the management of government affairs is concerned. The decision made by the officials who met at the COAG conference may be regarded as fallacious if it fails to meet these standards. For example, it may be viewed as erroneous if there is no legalized body acting on the discretional mandate that can make it realistically and acceptably.

At times, administrators can act in a manner that appears to usurp the powers of judicial officers. In this context, such actions are viewed from the perspective of the doctrine of Ultra Vires. For example, it is important to determine whether or not it is the responsibility of the legislators to decide how representatives will be selected. An analysis of the resolutions passed at the COAG meeting makes it apparent that the government representatives acted beyond their powers. As far as the country’s legal department is concerned, such decisions cannot be determined in a global forum. They are domestic issues that need a local approach. The aforementioned issues inform the process of implementing the changes.

Before the implementation of a legal decision, it must be established that the proposition did not result from an error in law or fact. Such errors may make the decisions to be regarded as null and void. Accountability is the most important aspect of the conduct of legislators. Leadership must promote transparency in the country.

Government’s Probable Response in Case the Proposals are rejected by the Senate

The Senate may reject the proposal by the government. The reason is that the institution is an independent arm of the regime, which is not under the control of the executive. In case of such a rejection, the government has several options. The Premier should realize that the process of amending the Australian constitution is a complex one. It requires adherence to the rules that guide such undertakings.

In case the efforts of the government are thwarted, the executive can opt to start the procedure again. A new bill can be tabled before the house to reignite the whole process. The government can use its support in the two houses to facilitate its actions. It can lobby the legislators and make them adopt a positive opinion towards the proposed move. If the government succeeds in doing this, the proposal can then be taken before the public for approval. Such a course of action is catered for under the ‘direct effect’ of the rule of law. It is the responsibility of the government to convince the people that the envisaged changes are to their benefit. To this end, civic education can be conducted to enlighten Australians on the importance of selecting representatives to the Queen based on the standards and merits put in place by the legislators.

The government has the power to call the attention of the public to the specific areas that need to be changed. Public meetings can be held in different locations within the country. The sole purpose of such a move would be to bolster support for the propositions made in the COAG meeting. In this case, the agreements reached the meeting may not matter a lot.

The rule of the majority can also be used by the government in case the Senate rejects the proposals made. In this case, the executive can secure the support of majority members to reintroduce the bill. It is important to note that there is no rule in the Australian constitution that limits the number of times a bill can be tabled before parliament. The government can take advantage of this ambiguity to bring back the proposals.

The Process that needs to be Followed Before the Proposal could Take Effect as a Formal Amendment to the Victorian Constitution

The Victorian constitution is a legal document that is important in the management of government affairs in Australia. It highlights the roles and responsibilities of the parliament in other arms of government. The current constitution came to effect as a result of the 1975 Act. It is important to note that this legal framework does not have requirements that entail procedures. The parliament is the most important arm of the government in this case. The reason is that most of the political and legislative processes in the country revolve around it.

The Victorian Premier should be informed that the process of altering the constitution involves changes to the Council and Assembly amendments. Victorian constitutions are very restrictive. They do not give the individual an opportunity to adequately take part in societal affairs. The observation is very important about the COAG proposals. Council amendments must take into consideration constitutionalism, rule of law, and principles of equity.

On their part, assembly amendments involve the contribution of legislators. Lawmakers are expected to act rationally in coming up with decisions that promote the interests of their country. The Victorian Premier must realize that amending this constitution with regards to the COAG resolutions should take this trajectory.

Conclusion

In this paper, advice was provided to the Victorian Premier about the various proposals made in the COAG meeting. It was established that it is possible to implement the changes and make them part of the Australian constitution. However, the process of achieving this is detailed and circuitous. The various options that can be used to implement these changes were highlighted.

Bibliography

Geoffrey Lindell, Future Directions in Australian Constitutional Law (The Federation Press Pty Ltd., 2008).

George Williams, Labour Law and the Constitution (Federation Press, 1998).

Gonzalo V. Puig, The High Court of Australia & S92 of the Australian Constitution (Lawbook Co., 2008).

Helen Irving, Five Things to Know about the Australian Constitution (Cambridge University Press, 2004).

James Warden, Federalism and the Design of the Australian Constitution (Federalism Research Centre, 1992).

John A. Nauze, The Making of the Australian Constitution (Melbourne University Press, 1972).

John M. Ward, The State and the People: Australian Federation and Nation-Making, 1870-1901 (Southwood Press Pty Ltd., 1990).

Katherine Lindsay, The Australian Constitution in Context (LBC Information Services, 1999).

Vivian G. Curran, Comparative Law: An Introduction (Carolina Academic Press, 2002).

William A. Holman, The Australian Constitution: Its Interpretation and Amendment (The Law Book Company of Australia Limited, 1928).

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