There’s a dangerous clause still lurking in the Australian Constitution which could be abused by an incoming federal government. A new government can disallow (that is, get rid of) any law passed in the previous 12 months, even it it has been formally approved by the Governor-General. The Constitutional clause itself should go, writes Jeff Miles.
Now that we are to have a referendum at the 14 September federal election, could it please include a proposal to remove section 59 from the Constitution? CLA member Jeff Miles asks.
This provides that the Queen may disallow any law within one year of the Governor-General’s assent. In accordance with developments culminating in the Australia Acts 1986, the power of disallowance is exercisable by the Governor General acting on the advice of the Prime Minister.
In effect an incoming government, whether or not it has a majority in the Senate, can bypass the Parliament in order to set aside any legislation passed in the last 12 months of the previous Parliament.
Similar provisions in the laws of the States were repealed by the Australia Acts, 27 years ago.
It was understood then that, at the Commonwealth level, a referendum would be held with a view to the removal of S59.
September 2013 would provide a convenient and inexpensive opportunity to take that course.
– Jeff Miles, CLA member
https://en.wikipedia.org/wiki/Jeffrey_Miles
Jeffrey Allan Miles AO LLM BA is an Australian author and jurist. He is a former chief justice of the Australian Capital Territory. He has also held judicial appointments in New South Wales and Papua New Guinea.
Over the years that part of the Constitution has been called a “dead letter” by lawyers of various persuasions. I understand that the British Government considered using the provision once very early after Federation, but thought better of it. The Statutes of Westminister made the final stomp on the power from the British end, so I’m told.
Is is really remotely likely that an Australian government would use such a provision, if indeed it is still valid?