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 

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