Scrap the states? Would we have to scrap the constitution too?

If we really wanted to abolish the States, could we amend or abolish the preamble? This is much more difficult than it sounds. The Constitution can be amended through a process that includes a referendum (I come back to this below), but the preamble is not in the Constitution, but in the covering Act. John Quick and Robert Garran in their seminal work on the Constitution, The Annotated Constitution of the Australian Commonwealth (1901), considered why the principle of indissolubility was placed in the preamble in the first place:

The only reason which can be suggested, is that the Australian Parliament and people have a general power to amend the Constitution, and it may have been considered wise and prudent that, coupled with a right so great and important, there should be a reminder, placed in the fore-front of the deed of political partnership between the federating colonies, that the union, sealed by Imperial Parliamentary sanction, was intended by the contracting parties to be a lasting one, and that no alteration should be suggested or attempted inconsistent with the continuity of the Commonwealth...

How could the preamble be changed then? Australia has broken its legislative ties with the UK – that is, the UK can no longer legislate for the Commonwealth or the States (see section 1 of the Australia Act 1986). Generally speaking, the UK’s former powers have been grated to the Commonwealth and/or the States (see the Statute of Westminster Adoption Act 1942 and the Australia Act 1986). However, in both of these statutes there is a section that expressly denies the power to the Commonwealth and the States to repeal, amend or enact legislation inconsistent with the Commonwealth of Australia Constitution Act 1900.

There is one possible way to amend the Commonwealth of Australia Constitution Act 1900 – section 51(xxxiii) of the Commonwealth Constitution grants the Commonwealth Parliament the power to make laws with respect to:

the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom ...

Given that in 1900, the UK Parliament would have had the power to amend the preamble, this may provide a way for the Commonwealth Parliament to do so today– but only with the request or with the concurrence of the Parliaments of all the States.

Scrapping the States in the Constitution

Amending the Constitution to scrap the States would require dramatic changes to the whole document – basically, a gutting of the Constitution. Quick and Garran observed that ‘the Federal idea ... pervades and largely dominates the structure of the newly-created community, its parliamentary, executive and judiciary departments.’ To read through the Constitution is to be constantly reminded of the federal nature of the compact. You see it in:

·         the provisions establishing the Commonwealth Parliament – the composition of the Senate;

·         the many provisions that give effect to the division of legislative and economic powers between the Commonwealth and State Parliaments;

·         the provisions establishing the federal judicial structure;

·         the provisions that save the States, their laws, Parliaments and constitutions;