Monday, 16 September 2013


Can Malcolm turn bull into gold ingots?

Probably not; but he certainly can spin!

Back in June 2013, Malcolm Turnbull, the Liberal Party’s failed opposition leader, and Australia’s best “worst” treasurer ever, Wayne Swan, fronted up together to a media pantomime to spruik a “fresh” push for a republic.

Wayne Swan warbled his defence of a republic with little or no technical reason for change but pointed to a recent OECD survey which indicated that Australia is the best place to live. That being the case, why would one want to change the existing stable form of government that allowed for such an assessment?

Malcolm, on the other hand, played on constitutional technical aspects to try and convince us to make change to a republic and also offered up the cyber sphere as a probable way to seek more engagement to achieve that end.

But Malcolm's assertions about the history of the evolvement of the Australian crown are obscure and don't reflect reality. Anything said by Malcolm at this pantomime meeting becomes transparently void if one reads the Final Report of the Constitutional Commission 1988. This report was authored by Sir Maurice Byers CBE QC, Professor Enid Campbell OBE, The Hon Sir Rupert Hamer KCMG, The Hon E G Whitlam AC QC and Professor Leslie Zines and offers the correct pathway of evolvement of Australia from colony/dominion to an independent and sovereign country.

The 1988 Constitutional Commission also stated 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 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 comment of Gibbs CJ in Pochi v Macphee[104] that 'The allegiance which Australians owe to Her Majesty is owed not as British subjects but as subjects of the Queen of Australia.'
But Malcolm's rash and insane support for Global Warming and hate of the Australian crown is buried in his DNA.

He wants the crown out of the way so that Australia can be absorbed by some monolithic global government and supports Global Warming so that companies such as Goldman Sachs can make money out of markets such as the European Union Emissions Trading Scheme and which has done so since its inception in 2005.

The moral of the story here is that you should never believe everything that Malcolm Turnbull says is the gospel truth!

Friday, 14 June 2013

Challenging Constitutional Changes

When it comes to constitutional change, very few Australians would understand the significance of the numbers 44 and 8.

Those who dabble in constitutional matters know only too well what these figures represent; the first is the number of proposals that have been put to the people of the Commonwealth (of Australia) for approval to change our Constitution, the latter is the number of proposals that have been approved in accordance with section 128 of the Constitution.

Not exactly a great batting average given that the Federation has been in place for some 112 years! 

Indeed, the Hon W Trenwith, Minister for Public Works (Victoria), at a luncheon held in Sydney on 5 January 1901 to celebrate the Federation of the Commonwealth of Australia stated the following in respect of the Constitution (The Inaugural Celebrations of the Commonwealth of Australia, William Applegate Gullick, 1904, Page 175):

“ ...... that while it is not too pliant and cannot be easily altered, it provides the machinery for doing anything the people of the continent may desire

Noting that all of the eight referenda passed to date have achieved more than 54.38% Australia-wide, four additional proposed referenda, which achieved more than 50% overall, did not gain the necessary majority of states in each case.

All of the eight successful referenda received bipartisan support and 50% of the eight successful referenda were conducted concurrently with an election. The bulk of these proposals were under the sponsorship of conservative governments.

However, bipartisan support doesn’t automatically guarantee that a referendum will succeed.

The 1977 referendum on Simultaneous Elections gained 62.22% of the votes but was not carried in a majority of states. This failed referendum and two other failed referenda, Parliament Nexus (1967) and Aviation (1937), also received bipartisan support (G Grainger, K Jones, The Australian Constitutional Monarchy, ACM Publishing, 1994, Table 2).

While it is acknowledged that a referendum could be passed with the smallest of margins it may require that each of the 6 states approve the referendum. This matches the establishment of the Constitution itself in the late 1890s.

While only 52% of the people supported the Australian Constitution then, and despite that most women and many aboriginals were excluded from voting (G Williams, The High Court and the People, Tomorrow's Law,  Federation Press, 1995, 271), the constitution was approved in each of the 6 colonies.

Currently, there are two proposed changes to the constitution in waiting. They are for the recognition of Local Government and recognition of the Aboriginal and Torres Strait Islander peoples.

A third proposal is an amendment to the Referendum (Machinery Provisions) Act to allow for the conduct of citizens initiated referenda. This is a proposed amendment to an existing Act of the Commonwealth Parliament and, therefore, is not a referenda in itself.

Additionally, and well away in the background, the chattering classes are still venting the need for some, as yet undefined, republic.

The concept of constitutional recognition for local government has been put to the Australian people on two occasions; first in 1974 (46.85%) and then again in 1988 (33.48%).

Both of these failed proposals were under the sponsorship of the Labor Party (G Grainger, K Jones, The Australian Constitutional Monarchy, ACM Publishing, 1994, Table 2).

On 9 May 2013, Prime Minister Gillard announced that a referendum will be held on election day (14 September 2013) on the constitutional recognition of local government.

The actual wording of the referendum question and the actual proposed changes to the Constitution are not yet known. None-the-less, the unintended consequences of such a bill could prove to be quite damaging. Local Government is a creature of the States and any change as proposed could lead to conflict between the States and the Commonwealth. Ironically, the Commonwealth is also a creature of the States (Colonies)!

The possibility of this getting up on a third attempt is remote given the results so far. The people of the Commonwealth will be unlikely to shower more power on the Commonwealth Parliament given the ever increasing incompetence and mismanagement of taxpayers money by the incumbent government. 

However, the indigenous proposal may have a chance - but not in its present format as proposed by the Expert Panel.

It should be remembered that the 1999 preamble proposal suffered a more disastrous defeat than that of the republic proposal which was battered to near death by the Australian people.

The Labor government has given support for such a proposal as has the Leader of the Opposition. Tony Abbott has promised to bring forward for consultation a draft amendment to the Constitution recognising Indigenous Australians within 12 months of office should his party gain government in September.

Much, if not all, of the Expert's Panel recommendations could be retained in a revamped version which may ensure support of the indigenous Australians. Equally, the several proposed changes should be desirable enough to gain an effective compromise and, therefore, bring a majority of Australians on board for a successful conclusion.

One major consideration would be to annex the Statute of Westminster and both the Australia Acts as schedules to the constitution. Most Australians would be unaware that 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 (Richard E McGarvie, Democracy, choosing Australia’s republic, Melbourne University Press, 1999, Page 257).

Undertaking this proposal would ensure that the people of the Commonwealth would have total sovereignty over their constitutional arrangements. It could also give access to the existing preamble via section 128 of the constitution to include a suitable statement about the indigenous peoples along the lines stated in the Expert Panel’s item of recognition of Aboriginal and Torres Strait Islander people's

There are two ways of doing this. One way would be to undertake the two referenda on two separate occasions with a referenda on the annexing of the Statute of Westminster and the Australia Acts to the Constitution being the first cab off the rank. For a variety of reasons, referenda are rarely put to the Australian people. Given that there is a “hole in the bucket” in respect of the Statute of Westminster and the Australia Acts, a referenda on this issue should be placed before the people as soon as practicable. 

Alternatively, the two referenda outlined above could be conducted concurrently but would require the indigenous referenda to be subject to the success of the referenda on annexing the Statute of Westminster and the Australia Acts. This process would be more convoluted. However, there has been a precedence!

In 1999, all of the six states passed an Act to request the amendment of the Australia Acts in connection with proposed constitutional arrangements to establish the Commonwealth of Australia as a republic. This would have allowed the States to become republics in their own right. The commencement date for those six Acts was on the day after the day on which the Constitution Alteration (Establishment of Republic) 1999 bill of the Commonwealth received Royal Assent. These State Acts never saw the light of day because the Constitution Alteration (Establishment of Republic) 1999 bill failed at the referendum!

Returning to the Indigenous proposal, the repeal of sections 25 and 51(xxvi) may not be contentious. However, the Experts Panel proposal for the recognition of Aboriginal and Torres Strait Islander peoples, prohibition of racial discrimination and recognition of Indigenous languages are quite a different matter and in their current format could cause the entire proposal to fail ignominiously.

The first four paragraphs of the proposed recognition of Aboriginal and Torres Strait Islander people's are quintessentially of preamble substance but under this arrangement will form part of the constitution itself. These paragraphs should, preferably, be placed within the existing Constitution Act preamble. 

The last paragraph of recognition of Aboriginal and Torres Strait Islander people's gives the Commonwealth parliament the power, subject to the Constitution, to make laws for the Indigenous peoples. This broad sweeping aspect has a very strong prospect of being contentious enough for a majority of people to resist change because of what could be perceived as a double standard.

None-the-less, if the second paragraph of Prohibition of racial discrimination was moved to replace the existing 51(xxvi) and a sunset clause provision included, the people may accept such an arrangement. 

The provision of a sunset clause should not be too extensive and government should be required to initiate a proactive plan to accomplish the desired results within the nominated timeframe. A period of around 20 to 25 years may be acceptable. An end date would be essential to, although not guarantee, acceptance by the people.

The first part of Prohibition of racial discrimination may be acceptable to the people. However, it may be better placed under Section 117 (Rights of residents in States) as 117B. Mysteriously, the word “creed” has not been included as as one of the “grounds”. Serious consideration for the inclusion of the word “creed” may be necessary to ensure substantial support of the people.

The second part, and probably the most contentious, would be akin to opening Pandora’s box to reveal its duplicitous intent. It could also prove to be financially deleterious! While it could be argued that this is an essential requirement to meet Indigenous needs, it appears that the more global intention of this part would lead to failure in its own right. If the inclusion of this part is absolutely necessary, it should be restricted to the Indigenous people only and should also be subjected to the sunset clause already discussed above.

Finally, the Recognition of languages section in its current form could cause substantial problems. This may be eased by requiring that the English language to be the only language to be used in all jurisdictions (e.g. Commonwealth, State and Territory Parliaments, All Courts, Local Councils) and other areas where commonality is paramount.

As the Experts Panel’s draft now stands, some opposition may be attracted from within the Parliament causing a “yes/no” booklet to be sent to all voters. The essential elements that would strongly help the “no” case are the Expert Panel’s recognition of Aboriginal and Torres Strait Islander people's in toto and the second part of Prohibition of racial discrimination as they now stand.

Drafters should also not place too much faith on the referendum question which is yet to be drawn up. The Constitution is quite clear in that the “electors voting approve the proposed law”. The question is merely a vehicle for change and not a proposed change to the law in itself. Accordingly, Australian voters should be seen as an intelligent lot and that they will make their decision based on the proposed changes laid before them and not on the style and form of the question asked.

That said, much work still needs to be done. Those responsible for drafting any change to the constitution to allow for recognition of the indigenous peoples need to be extremely mindful of Quick and Garran’s poetic assertion “to delay change until there is strong evidence that it is desirable, irresistible, and inevitable”.

With the proposed annexing of the Statute of Westminster and both of the Australia Acts to the Australian Constitution, the people of the Commonwealth would finally become the beneficiaries of total sovereignty over their constitutional arrangements.

This rightful gift to the people of the Commonwealth, along with extensive re-arrangement of the Expert Panel’s draft bill, may just help the indigenous proposals get across the line at a referendum. 

Much goodwill on all sides will need to be forthcoming for this to happen. Ultimately, the people of the Commonwealth will ask themselves “What’s in it for me?”. After all, it is their Constitution and not that of only the politicians and lawyers!

Tuesday, 12 March 2013

You mean Australia has a constitution?

When we go to the polls on 17 September we will be voting for the next Prime Minister!

The Prime minister is the Head of State!

The phrase "Head of State" is entrenched in the Australian Constitution!

The Ministers belong to the Prime Minister!

The incumbent Prime Minister's partner is commonly known as the "First Bloke"; if Tony Abbott becomes the next Prime Minister, does that mean that his wife Margaret will become known as the "First Sheila"?

Those statements are somewhat simplistic but they do highlight some of the myths that are portrayed to us by the media and others. More of that later.

So how well do we understand our own Australian Constitution?

Back in 1987, a survey was conducted for the Australian Constitution Commission.

That survey found that 47 per cent of Australians were unaware that Australia has a written Constitution.
Similarly, and in the 1994, a report on citizenship by the Civics Expert Group found that:

Only 18 per cent of Australians had some understanding of what is in the Constitution.

Only 40 per cent could correctly name both Houses of the Federal Parliament.

More than a quarter of those surveyed nominated the Supreme Court, rather than the High Court, as the 'highest' court in the land.

But understanding our Constitution is not straight forward!

There many aspects that need to be comprehended. 

Decisions of the High Court, State Constitutions all of which are subject to the Australian Constitution, and other outriding documents such as the Statute of Westminster and both the Australia Acts all impact on our overall constitutionality. 

Additionally, there are more than 20 occasions where the phrase "Until the Parliament otherwise provides" appears in the Constitution which means that one has to suss out the relevant Acts of Parliament to fully understand the whole picture! Capping off all of this are the several sections which are either spent, redundant, no longer have any application or were transitional to facilitate the federation process.

However, that doesn't mean we should steer clear of trying to understand the Constitution.

Rather, it should be an incentive for us to do quite the opposite. An instructive guide for beginner's has been on the Australian Republic Unplugged website since well before September 1999. The quality of that guide has progressed from a very simple web page to a variety of means including a PDF version, CD-ROM and DVDs - both of which have morphed into podcasts and YouTube versions. 

The latest incarnation is in iBook form for the iPad and offers an electronic and interactive version for those on the go. It's not designed to turn you into a constitutional lawyer but, hopefully, will get you started on the road.

Now, to those statements made at the beginning:

At the next Federal Election we will not be voting for a Prime Minister; the constitution is quite clear in that, as voters, we will be voting for a member to represent us in our respective electoral division.

The Prime Minister is not Head of State despite the efforts of two highly respected reporters who have tried to infer this. Firstly, Helen Daley back in in 2003 and more recently in 2012 Liam Bartlett made a similar assertion.

The phrase "Head of State" is not mentioned anywhere in the Australian Constitution nor in the two outriding constitutional documents i.e. the Statute of Westminster and both of the Australia Acts.

On the ownership of the Ministers, the Constitution quite clearly states in Section 64 that members of the Federal Executive Council "shall be the Queen's Ministers of State for the Commonwealth"!

As far as the last item goes, let's leave it up to the wags to decide although the now much used "First Lady" is an American thing that doesn't fit with our Westminster system. It is a bit like using the term "guys" when referring to both men and women - impractical and erroneous!

Friday, 4 January 2013

Media's Interpretation of "Head of State"

Last year, Channel Nine's 60 Minute show screened "The Good Wife" - a story about the anti-feminist crusader Samantha Brick.

In that story, Liam Bartlett used the phrase "Head of State" when asking a question of feminist Germaine Greer in respect of an earlier comment about the Prime Minister's bottom that Miss Greer had made on the ABC's Q&A programme. Liam's question was in the context of a discussion about the Prime Minister and, therefore, inferred that the Prime Minister is Australia's Head of State as did Miss Greer as well in respect of David Cameron, the Prime Minister of the United Kingdom.

An extract from the relevant part of the THE GOOD WIFE transcript follows:
GERMAINE: Can we just work this one out? Do they open doors or shut them? First of all she says oh, I’m being discriminated against ‘cause I’m so lovely. Now she says I’ve used my looks to get where I am. Just shut up, Samantha, for God’s sake. 
LIAM BARTLETT: Something Germaine herself significantly failed to do when the temptation to be bitchy was dangled before her - in the shape of the Prime Minister’s posterior. 
GERMAINE: You’ve got a big arse, Julia. Just get over it.
LIAM BARTLETT: I mean, you’ve been guilty of it yourself - critiquing people on the basis of their physical attributes - when you were talking about the Prime Minister’s bottom.
GERMAINE: I wasn’t talking about her backside, I was talking about her jacket. 
LIAM BARTLETT: You were talking about the size of her bum.
GERMAINE: I said “so you’ve got a big arse, get on with it.” Most of us have big arses. 
LIAM BARTLETT: Can you imagine a bloke saying that about a head of state, talking about their backside? Can you imagine a bloke getting away with that? That’s exactly what Samantha Brick’s talking about. 
GERMAINE: You can say whatever you like about a head of state. Have you see the cartoons of David Cameron as a condom?
An extract from the relevant part of the THE GOOD WIFE 60 Minute story follows:

Interestingly, the phrase "Head of State" is not mentioned anywhere in the Australian Constitution. Nor is that phrase mentioned in two outriding constitutional documents - The Statute of Westminster 1931 and the Australia Act 1986. The Prime Minister may be referred to as the "Head of Government" but never as "Head of State".

But Liam Bartlett is not the only reporter in the media who has made this mistake. Hellen Dalley made a similar inference in respect of John Howard on the Nine Network's Sunday progam, and which later aired on Sky News on Sunday, 16 March 2003.

In the following movie Helen Dalley implied that John Howard was a Head of State:

It's a pity that such high standing reporters do not fully understand our system of Government. Then again, most in the media are of the belief that we actually elect our Prime Minister - another furphy pushed onto the Australian people!

Thursday, 3 January 2013

Harold Scruby Is On The Flag Case Again!

The silly season still continues.

Harold Scruby of Ausflag (and the Pedestrian Council) is back again on his old boring push for a change to the design of the Australian flag.

He says that our current flag is not Australian! Sorry Mr Scruby, you're wrong! The Australian flag was designed in Australia by Australians and was chosen as a result of a competition. While the flag didn't have any legal status for about 50 years, the design was approved by King Edward VII in 1902. Queen Elizabeth the Queen of Australia subsequently gave Royal Assent to the Flags Act on 14 February 1954 during her first visit to Australia which, incidentally, was also the first visit to Australia by a reigning monarch.

The cover of the Flags Act on which Queen Elizabeth II gave Royal Assent
Mr Scruby has indicated that it is an embarrassment that Fiji will change its national flag before Australia and that it is embarrassing that Fiji has beaten us (Australia) to it.  He also thinks that it is disappointing that a country like Fiji has got so much more vision than a country like Australia.

Well Mr Scruby, Fiji is no longer in the Commonwealth of Nations and is a republic and, therefore, has every right to change its flag. It is of no business to us what Fiji does with its flag.

Watch what Harold Scruby had to say about the Australian National Flag on Channel 7's Today Tonight programme on Friday, 13 December 2002.

Maybe it would be better if Mr Scruby just worried about the safety of pedestrians than worry himself for the rest of his life trying to change the Australian Flag. 

For further information about the Australian National Flag go to the following Link:

Don't forget that the Flags Amendment Act assented to on 24 March 1998 requires that if there is to be any change to the existing flag it cannot be changed without a vote of the people in each State and Territory and that the existing Australian National Flag and a new flag or flags would now be required to be submitted to the people. A majority of all the electors voting is now required to either retain the existing flag or change to a new flag.

Wednesday, 2 January 2013

Hawke's Nest Fouled

It really still is the silly season!

So after his visit to one of those funky festivals during the Christmas/New Year period, former Prime Minister Bob Hawke has come to the conclusion that the states should be abolished. Bob Hawke, for one, should well know that getting a referendum up is not an easy task. Mr Hawke organised two referenda in 1984 and four referenda in 1988. The people of Australia delivered a big fat NO to all six of the Hawke sponsored referenda.

Furthermore, his desire for a "stateless" Australia will have a higher benchmark for approval. Normally, approval by a majority of people Australia-wide (including the territories) and approval of a majority of people in a majority of states (not including the territories) is required to get a referendum up.

However, the penultimate paragraph of section 128 of the constitution, which deals with the way in which the constitution is altered, states:
No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law.
What this means, is that the second part of the "double banger" requirement for referenda would require a majority of people in all of the six states rather than approval of just a majority of people in a majority of states.  This is hardly the road to travel unless you had something else up you sleeve to make constitutional change.

Now, Mr Hawke oversaw the the introduction of the Australia Acts (UK and Commonwealth) back in 1985-86. Section 15 (1) of both of the Australia Acts allows for the Federal Parliament, with the concurrence of the six state parliaments, to repeal or amend the Australia Acts and the Statute of Westminster. Section 8 of the Statute of Westminster denies the Federal Parliament from amending or repealing the Constitution Act of the Commonwealth of Australia or the Australian Constitution itself.

Queen Elizabeth II signs her Assent on 2 March 1986 to the Proclamation to bring the Australia Act into operation both in Britain and throughout Australia. With the Queen at Government House, Canberra, were David Reid, Secretary to the Executive Council (left) and Prime Minister Bob Hawke.
Given that Section 15(1) of the the Australia Acts allows for the repeal or amendment of the Statute of Westminster, their is a strong view that the Constitution Act and/or the Constitution could be amended or repealed without a referendum.

The late Richard McGarvie (former judge of the Supreme Court of Victoria and former Governor of Victoria) believed that the Australian Parliament, at the request of or with the concurrence of all the State Parliaments, can now amend or repeal the Constitution Act or The Constitution.   This assertion is confirmed in Mr McGarvie's book "DEMOCRACY - choosing Australia's republic".

So is this your agenda Mr Hawke?

The Australian people wouldn't be wanting what Mr Hawke is having anytime in the future!
That said, and if there is an extant need to reduce the amount of governance within Australia then how about this proposal using New South Wales as an example.

Currently, there are 50 federal electoral divisions for the state of New South Wales. What the New South Wales government could to do is to reduce its number of electoral districts to 50 and align the boundaries of those districts with the federal electoral division boundaries - this would reduce the number of NSW politicians by 43!

Additionally, the number of councils could also be reduced to 50 with their boundaries also aligned with the federal division boundaries. The NSW constitution should also be altered to allow for specific roles for councils e.g. roads, rubbish, libraries etc. Councils should not be allowed to make laws or resolutions on international and national matters.

The number of state electoral districts and councils would increase/decrease in number in conjunction with any change to the number of federal divisions. The other states may need a different formulae.

Oh for a hasty retreat from the silly season!