Tuesday 26 April 2005

MEN MAYBE FROM MARS AND WOMEN MAYBE FROM VENUS BUT IS DR MEREDITH BURGMANN FROM PLANET EARTH?

In recent correspondence (see details at bottom of page), one of New South Wales' senior elected public servants, Dr Meredith Burgmann, who holds down the important position of President of the NSW Legislative Council asserts that members of the NSW Parliament currently pledge loyalty to the English Queen!


Such an assertion is simply fallacious. Some points of law follow:

• Since the enactment of the Royal Styles and Titles Act 1953, Elizabeth II has been "Queen of Australia". The Royal Style and Titles Act 1973 confirmed this arrangement; all this revision to the Royal Styles and Titles did was to delete reference to the "United Kingdom" and "Defender of the Faith".


• Additionally, the 1988 Constitutional Commission, partly authored by the Hon E G Whitlam AC QC, found inter alia that: "The disappearance of the British Empire has therefore meant that the Queen is now sovereign of a number of separate countries such as the United Kingdom, Canada, Australia, New Zealand and Papua New Guinea, amongst others. As the Queen of Australia she holds an entirely distinct and different position from that which she holds as Queen of the United Kingdom or Canada. The separation of these 'Crowns' is underlined by the comments of Gibbs CJ in "Pochi v Macphee" that 'The Allegiance which Australians owe to Her Majesty is owed not as British subjects but as subjects of the Queen of Australia'.


• In 1999, the High Court, in the Sue V Hill case, confirmed that the Queen of Australia does not act as a foreign Queen. One of the main arguments that was raised by Heather Hill was that the Queen of Australia is the same person as the Queen of the United Kingdom and Northern Ireland. Therefore swearing allegiance to the Queen of Australia was the same as swearing allegiance to the Queen of the United Kingdom and Northern Ireland. This argument was rejected by the Court on the basis that whilst physically it is the same person (Queen Elizabeth II) they are "independent and distinct" legal personalities. This notion is known as the divisibility of the Crown which Justice Gaudron found to be "implicit in the Constitution."


Clearly, members of the NSW Parliament currently swear an oath of allegiance to the Queen of Australia and not to the English Queen as asserted by Dr Burgmann. It is disappointing that Dr Burgmann, who is highly academically qualified and who holds a position of high importance and responsibility, does not fully understand the entire bandwidth of Australia's constitutional nuances, arrangements and law.

-------- Letter from Dr Burgmann is detailed below:


THE HON. DR MEREDITH BURGMANN PRESIDENT OF THE LEGISLATIVE COUNCIL


Nick Hobson DFC AFC
PO Box A2027
Sydney South NSW 1235
21st April 2005


Dear Mr Hobson


RE: CONSTITUTION AMENDMENT (PLEGE OF LOYALTY) BILL 2004


Your arguments are very forceful but I believe that democracy is protected by the fact that our votes are open and transparent. People can vote against us if they believe that we should still be pledging loyalty to the English Queen.


Thank you for your correspondence.


Yours sincerely,


Meredith Burgmann
Parliament House
Macquarie Street
Sydney NSW 2000
Australia 

Friday 22 April 2005

CONSTITUTION AMENDMENT (PLEDGE OF LOYALTY) BILL 2004 (NSW)

Next month, the New South Wales (NSW) Legislative Council will be considering a Bill that amends the NSW Constitution. This Bill, if passed, would require Members of the NSW Parliament and NSW Ministers to take a pledge of loyalty to Australia and the people of NSW instead of swearing allegiance to the Queen of Australia. A similar Bill is underway in Western Australia.


The ever increasing willingness for most State Parliaments to amend their Constitutions without reference to the people is anachronistic in modern Australia. State Constitutions should only be changed by referendum by the people of a State!


That said, there are other issues. For example, the late Richard McGarvie in his book "DEMOCRACY choosing Australia's republic" stated:


With the power from the Australia Acts, the Commonwealth Parliament, by Acts supported by the State Parliaments, can amend the provision in the Statute of Westminster that precludes it from amending the Commonwealth Constitution, the covering clauses or the preamble.


(Further reading on this issue can be viewed at http://www.statusquo.org/aru_html/html/const_safe.html)


Clearly, the Commonwealth Parliament should use its power under Section 15(3) of the Australia Acts to either remove the obnoxious Section 15(1) of the Australia Acts or amend it to require a referendum in each State.


To further enhance Australia's collective democracies, Section 106 of the Australian Constitution should also be amended to require that State Constitutions only be changed by State referenda.


(Further reading on this issue can be viewed at http://www.statusquo.org/aru_html/html/const_change.html )


A letter relating to the NSW Constitution Amendment (Pledge of Loyalty) Bill 2004 which has been delivered to each of the Members of the NSW Legislative Council yesterday is shown below for your information:


In May 2005, yourself and other members of the NSW Legislative Council will consider the abovementioned bill to amend the NSW Constitution. This Bill, if passed, would require Members of Parliament and Ministers to take a pledge of loyalty to Australia and the people of NSW instead of swearing allegiance to the Queen of Australia.


A similar change to the Australian constitution would require a referendum; in other words, the people of NSW do not enjoy total sovereignty over their parliament as do the people of Australia federally. Accordingly, the NSW Constitution is light years behind the Australian Constitution in terms of "democracy for the people by the people"!


Until the introduction of the Australia Acts (1986), all laws in NSW weresubject to theUnited Kingdom's Colonial Laws Validity Act 1865. The Colonial Laws Validity Act 1865 constrained the NSW parliament in its ability to amend the NSW constitution. However, since the introduction of the Australia Acts, much of the NSW Constitution can now be changed without a referendum or without external constraint. Additionally, section 106 of the Australian Constitution provides no further protection for the State Constitutions other than confirming that they remain unaltered until changed in accordance with the Constitution of the State! In the Sydney Morning Herald of 19 January 2001, Professor Cheryl Saunders in her article "Updating Our Democracy" stated:



  • Fundamental rules about the acquisition of power cannot confidently be left to those who presently hold power or who have regular prospects of doing so.



Clearly, changing a constitution without a referendum does not conform which such sentiment.


That said, and whether or not the Council chooses to approve the Bill in its current form is dependent on whether or not Council members believe they are above the sovereignty of the people of NSW. Alternatively, if the Council votes to approve the Bill with an amendment to require a referendum to let the NSW people also have their say on this issue then democracy in NSW will be considerably enhanced. Such action would also allow for the Legislative Assembly to either abandon the Bill or allow for the procedure at section 5B of the NSW Constitution to systematically take place.



Accordingly, I commend to all members of the Council to add an amendment to require a referendum should they choose to approve the changes provided for in the Bill so that the people of NSW can also have their democratic say. If not, what other parts of the NSW Constitution will be changed in the future without the will of the people of NSW?