Talk:Constitution of Australia

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Oath or affirmation of office[edit]

I see no mention in the article, nor in the linked Australian constitutional law, of the oath (affirmation) of office prescribed by the Constitution to be taken by members of parliament, nor any mention of variations permitted by a governor-general, as in the case of Gillard and may be others, on being appointed prime minister, nor of the oath (affirmation) of office prescribed for a governor-general appointed under the Queen of Australia's letters patent. Can the article be complete without this? Qexigator (talk) 11:48, 23 October 2015 (UTC)

If there's such a prescribed oath (affirmation), then I see no reason not to include. GoodDay (talk) 11:57, 23 October 2015 (UTC)
If....?: look at the Constitution and the letters patent: what do you see? Qexigator (talk) 12:16, 23 October 2015 (UTC)
My apologies, I wasn't questioning there was. By all means, include. GoodDay (talk) 12:20, 23 October 2015 (UTC)
So I had supposed: have you looked at the Constitution and the letters patent, and what do you think about that? Qexigator (talk) 15:08, 23 October 2015 (UTC)
I lookd at the Australian Constitution. Indeed, the Oath/Afirmaton text, should be included in the article. GoodDay (talk) 16:21, 23 October 2015 (UTC)

Diligent archive-hounds may be able to scent something of what is here being discussed in the records now bot-removed to the depositary: as of 01:40, 24 October 2015 (Archiving 18 discussion(s) to Talk:Constitution of Australia/Archive 2) (bot)[1], but this section was started as a result of a current discussion elsewhere, "Governor-general and PM's oath of office". [2] Qexigator (talk) 06:45, 24 October 2015 (UTC)

Now see revision[3] Qexigator (talk) 10:25, 24 October 2015 (UTC)

Head of state section[edit]

Fellow editors, The addition of the "Head of state" section appears to place undue emphasis on a fringe theory / common misunderstanding of the Constitution of Australia. It seems undue to include details of what the constitution does not include. The constitution does not omit to mention the "Head of state" it simply uses the perfectly good word "Sovereign" instead. I am removing the section pending the results of various RfCs elsewhere, and discussion here. (See also: [4][5] - Ryk72 'c.s.n.s.' 02:17, 20 February 2016 (UTC)

I had the same temptation, but I think that this section should stay until those discussions are resolved. So I'll revert your change - we can and should come back to the section. BTW "sovereign" is not in the Constitution itself and is used to refer only to the UK. Wikiain (talk) 02:43, 20 February 2016 (UTC)
I stand corrected. The Constitution uses "the Queen" (originally Queen Victoria; later amended to include her heirs & successors). I remain of the mind that the section should be removed, pending the outcome of the discussions; per WP:BRD. - Ryk72 'c.s.n.s.' 02:53, 20 February 2016 (UTC)

The statement: The position of the monarch, the present Queen of Australia and its states, as "Lord Paramount" in respect of the system of land tenure in Australia, including public land held in "right of the Crown",[17][18] is no longer in question. is based on a confected argument based on personal interpretation of primary sources. We cannot make a statement in Wikivoice if nobody actually said it in a reliable source. --Pete (talk) 01:01, 23 February 2016 (UTC)

I'm removing the discussion of "Lord Paramount". In Mabo Brennan J says (paras 48 onward) that it is just a fiction, logically required by the notion of "radical title of the Crown" in the doctrine of tenures. Thus it is not actually connected with the head of state, only with "the Crown" as an abstraction. It is not mentioned in the Native Title Act. Wikiain (talk) 02:48, 23 February 2016 (UTC)

It is not for Wikipedia to dismiss the ratio decidendi of the High Court as confection. The distinction in law between crown property and the personal property of the Queen is long-standing and well-enough known not to be worth mentioning, but Crown land continues to held, administered and managed under the reigning monarch as "Lord Paramount", whether open to the public or in some other way for public purposes such as mining leases or airports, and in the manner prescribed by enactments of the state and Commonwealth legislatures. That is not affected by the different issues concerning the use of "crown" (more of a fiction, as it happens, than "lord paramount"), in present-day jurisprudence such as discussed by Cheryl Saunders in "The Concept of the Crown" [2015] MelbULawRw 3. [6], where she opines: "Australia has by no means replaced the concept of the Crown in its application to executive government with a developed theory of the state, although it has begun to move down that path. ...The divergence of Commonwealth legal systems in relation even to matters once held firmly in common, of which the concept of the Crown is an example, does not deny the relevance of transnational Commonwealth constitutional experience". Qexigator (talk) 17:23, 23 February 2016 (UTC)
All respect, but the problem here isn't whether you are right or wrong, Qex. It is that we need a reliable source. That is, someone stating what you want the article to read. If all we have is you making an argument from a few unconnected facts, then it's synthesis and original research. If your view is correct, please find someone who says so, and we can use them as a source. Otherwise, we are using personal opinions of primary sources, and that's not something encouraged. --Pete (talk) 19:52, 23 February 2016 (UTC)
Perhaps Pete, or anyone else, is unable to see that the ratio of Mabo, and other sources, speak for themselves, if read by a reasonably informed person unblinkered by a particular pov. Qexigator (talk) 20:38, 23 February 2016 (UTC)
I don't know about a particular point of view. I'm happy to accept a High Court judge, for example, making a plain statement. But I can't see this in any of the sources you have provided so far. For example, the words "head of state" do not appear in either Mabo or the Native Title Act. So your edits making statements about the head of state are synthesis and therefore original research. My opinion don't enter into it. --Pete (talk) 20:52, 23 February 2016 (UTC)
It may be difficult, but please take care not to attribute to me what is not mine. Qexigator (talk) 21:59, 23 February 2016 (UTC)
I'm seeing personal interpretation of primary sources, and I'm seeing insertion of irrelevant material. If you can find a reliable source that links the head of state, native title, and the Constitution in the manner you have done here, then that's fine. But I just can't see it. --Pete (talk) 22:07, 23 February 2016 (UTC)
As you well know that is not from the article, any more than any other comment on this page. Qexigator (talk) 00:02, 24 February 2016 (UTC)
Neither can I. And my own POV is it doesn't matter who the head of state might be, because the Constitution is unique. The question has no great significance. But I don't see the direct connection between Lord Paramount and Head of State, though I have tried to. And it strikes me that any connection that might be made is so obscure as to be relevant.Gazzster (talk) 23:45, 23 February 2016 (UTC)
Gazzster, noted that you have at least tried. Let's leave it there. Qexigator (talk) 00:02, 24 February 2016 (UTC)

Qexigator, when you say "It is not for Wikipedia to dismiss the ratio decidendi of the High Court as confection." of course you are correct, but I'm not sure what you are referring to. My reference point is Sue v Hill at paras 83-94, distinguishing five meanings of "the Crown" in Australian law. What Saunders calls "the concept of the Crown in its application to executive government" is the third of these, "the Crown" as the executive power, or perhaps the third plus the fourth, "the Crown" as formerly prerogative power (in effect, the fourth meaning is the same as third, stated in a historical perspective). Saunders does not discuss "Lord Paramount". In terms of the Sue v Hill list, I would locate the role of Lord Paramount somehow within the combined scope of the third and fourth meanings. That role is, as Brennan says in Mabo, fictional; it looks like we would agree that your phrase "under the reigning monarch as 'Lord Paramount'" concerns a fiction. At any rate, surely neither the third Sue v Hill meaning nor the fourth includes, today, the monarch acting as head of state. Gazzster, I expect you meant "irrelevant" and I agree. Wikiain (talk) 00:34, 24 February 2016 (UTC)

Yes, Wikiain, thank you for the explanatory and intelligible response, noted, and I have no quarrel with that. If we were at a seminar or socratic symposium, and some time remained before parting, we could discuss this further and deeper. But as it is, I feel enough has now been said here, by way of rebuttal, rejoinder and demurrer, for and against letting my proposed words stand in the article. As with some cases reported in the Year Books, we are given an account of the argument before the bench, but may not know the result when the case is referred "to the country" for a verdict on the facts. Meantime there are other issues in contention. Always remembering that Australia's culture is among the oldest and youngest on the face of the globe, Cheers! Qexigator (talk) 07:49, 24 February 2016 (UTC)

Executive power[edit]

I have removed the section "Powers of the Governor-General":

According to a legal opinion given in 1975 by the then Commonwealth Solicitor-General, with reference to sections 2 and 61, the Constitutional prescription is that executive power is exercisable by the governor-general although vested in the Queen. The opinion stated: "What is exercisable is original executive power: that is, the very thing vested in the Queen by section 61. And it is exercisable by the Queen’s representative, not her delegate or agent." The opinion is currently taken to mean that the Constitution "does not describe the governor-general’s power, it prescribes it".[7]

With respect, Qexigator, this is drivel. It says nothing about the nature of the executive power. And no, it has very little to do with Executive government. Let's get a source that says something about the peculiar nature of the executive power. Alternatively, if you can find a reliable source that equates it with Executive government, we can use that. But, well, lots of luck.

It may prove useful to contemplate the scope of the executive power. Does it encompass all powers given under the constitution? Or is it limited to some smaller set of powers? If so, which? And what sources do we have?

One thing is for sure. The executive power is not that which is implied by the text I've removed. It is not some arbitrary, all-encompassing power for the Governor-General to do anything in the name of the Queen.

Over to you - or anyone else who wants to provide a good source. --Pete (talk) 10:25, 2 March 2016 (UTC)

Noted Pete/Skyring's self-opinionated remark about referring to the S-G's opinion as drivel, though currently quoted on the official website, which is to be regarded as more RS than P/S's personal notions about the constitution or executive power, which certainly we cannot accept as valid for the content of the article. I suggest anyone who wishes to discuss that further with P/S do so at his talk page, not here. Qexigator (talk) 10:47, 2 March 2016 (UTC)

Constitution of Australia ≠ Commonwealth of Australia Constitution Act 1900[edit]

Hi all,
This article says, and in Wikipedia's voice, "The most important is the Constitution of the Commonwealth of Australia, which is referred to as the "Constitution" in the remainder of this article".
In my opinion - and of many experts on Australian Constitutional law that I will add here as required - the "Constitution of Australia" is the aggregation of legislation (The Constitution itself, Statute of Westminster Adoption Act 1942, Australia Act 1986 and so on) a the High Court of Australia decisions in Australian Constitutional law. The Wikipedia:Requests for comment guidelines suggest that this should be discussed on the article in question's talk page. Which is here.
So: Constitution of Australia ≠ Commonwealth of Australia Constitution Act 1900. What do you think about this?
Pete AU aka --Shirt58 (talk) 11:54, 4 July 2016 (UTC)

You are referring to three things: the Constitution Act, the Constitution (defined in the Act as sections 1 to 128 of the Act) and "the Constitution" in a broad sense synonymous with "constitutional law" (your "aggregate"). Both of the leading textbooks (Blackshield & Williams 6th edn 2014 p 2 and Winterton/Gerangelos 3rd edn 2013 p 4), speak primarily of "constitutional law" and, within that, of the Constitution Act and of then of "the Constitution" as defined in the Act. I would prefer that the article followed that usage. But let's not make things more difficult by calling the Constitution Act alone "the Constitution". Wikiain (talk) 23:34, 4 July 2016 (UTC)