SUBMISSION TO THE AUSTRALIA 2020 SUMMIT

On 2 March 1986, Her Majesty, Queen Elizabeth II - in her capacity as Queen of Australia - signed a proclamation which brought both the Australia Act 1986 (Commonwealth) and Australia Act 1986 (United Kingdom) into operation in both the United Kingdom and throughout Australia on 3 March 1986.

While there has been some argument about the actual date of Australia’s complete sovereignty, there can be no doubt that it has been fully achieved since 3 March 1986 when Queen Elizabeth II signed the proclamation bringing both the Australia Acts into operation.

While this would be seen by most as the final step in achieving independence it overlooks the fact that no referendum was undertaken to ensure that the Australian people have exclusive and total supremacy over their collective constitutional documents.

The problematic section 15(1) of both the Australia Acts allows the Commonwealth Parliament - with the consent of all the State Parliaments - to amend or repeal the Statute of Westminster and both the Australia Acts.

This power could be abused sometime in the future in respect of Section 8 of the Statute of Westminster given the High Court decision in Port MacDonnell Professional Fishermen's Association Inc v South Australia (1989) 168 CLR 340 has put at rest any doubts as to the validity of the Australia Act 1986 (Commonwealth).   In the unanimous opinion of the court, s 51(xxxviii) of the Constitution should be given a broad interpretation reflecting its 'national purpose of a fundamental kind', which is that of 'plugging gaps which might otherwise exist in the overall plenitude of the legislative powers exercisable by the Commonwealth and State parliaments under the Constitution'.

If the 2020 Summit Governance Group does nothing else other than to recommend that Section 15(1) be repealed by referendum to ensure that the Statute of Westminster and both the Australia Acts can only be amended or repealed in accordance with Section 15(3) of both of the Australia Acts then it will have achieved a lot.

Such action will then ensure total sovereignty of the people over their constitutional documents.

In doing so, it will also prove to the Australian people that all our elected public servants remain subservient to the Australian community at all times as well as ensuring that our democracy is one of the best - if not the best - in the world.

No other constitutional change should be contemplated or undertaken until this proposal has been implemented by the Australian people!

The following quote from the late Richard McGarvie's book "Democracy; choosing Australia's republic" provides a profound summary: 'With the power from the Australia Acts, the Commonwealth Parliament, by Acts supported by the state Parliaments, can amend the Statute of Westminster that precludes it from amending the Commonwealth Constitution, the covering clauses or the preamble'.

Richard McGarvie was a former Supreme Court Judge and Governor of Victoria.

For further information on this subject, go to http://www.statusquo.org to read "Is Our Constitution Safe?".

Email Address: support@statusquo.org
Website: http://www.statusquo.org

A PRIME MINISTER RUDD COULD REWRITE THE AUSTRALIAN CONSTITUTION WITHOUT A REFERENDUM

Much has been made of possible wall-to-wall Labor governments across Australia should the Labor Party win a majority of seats in the House of Representatives at the forthcoming Federal election. Some fear the possible increase in the GST which is currently set at 10%. Others have additional fears in respect of the Australian Constitution being legitimately changed without the holding of a referendum.

While any political mix of Federal and State Parliaments could accomplish the same thing, it is more likely for that to happen if all of the Federal and State Parliaments are controlled by a socialist conglomerate; the socialists are far more aggressive than the conservatives when making changes without consultation with the people!

But there is another aspect to this use of power.

It is also possible for an Act of the federal parliament to be passed at the request or with the concurrence of the six state parliaments to amend both the Australia Act 1986 (UK) and the Australia Act 1986 (Cwlth) to change Section 7 of both of those Acts relating to the powers and functions of Her Majesty and Governors in respect of the States so that the States could become republics.

No federal referendum would be required for this process; indeed, in 1999 all of the six states did exactly that but because the commencement date of those six Acts was tied to the result of the republic referendum and because the republic referendum failed, the six state Acts had no effect. Since then, some of those state Acts have been repealed. There is nothing in law that would prevent this from happening again even if it were not tied to the outcome of a future federal republic referendum. In other words, we could find ourselves one morning with six state republics without the people ever being consulted!

But a more alarming aspect and potential time bomb is that, and by a similar process, an Act of the federal parliament can be passed at the request or with the concurrence of the six state parliaments to amend the Statute of Westminster 1931.

When the Statute of Westminster 1931 was being drafted additional provisions were inserted in the Statute to safeguard the position of the states of Australia.

In Section 8 of the Statute, it was provided that 'nothing in this Act shall be deemed to confer any power to repeal or alter the Constitution or the Constitution Act of the Commonwealth of Australia otherwise than in accordance with the law existing before the commencement of this Act'.

In 1999, there was an attempt to amend Section 8 of the Statute of Westminster to provide that "Nothing in this section prevents the amendment of the Commonwealth of Australia Constitution Act by omitting the Preamble or by repealing sections 2 to 8. This would have left the Constitution Act of the Commonwealth of Australia containing only Clause 1 (Short Title) and Clause 9 (The Constitution of the Commonwealth).

Because there was no unanimity between the six States the proposal was abandoned.

Section 128 of the Constitution states that 'This Constitution shall not be altered except in the following manner'. That said, one might presume that the procedure for change detailed in Section 128 of the Constitution was the only way that the Constitution could be amended. Additionally, some would claim that while Section 15(1) of The Australia Acts could be used to allow amendment of the Constitution Act of the Commonwealth of Australia, the same provision would not allow for amendment of the Constitution itself!

Now, the Australia Act 1986 (Cwlth) gained its authority from Section 51 (xxxviii) of the Constitution.

This power lets the Commonwealth, in co-operation with the States, do anything for Australia which only the United Kingdom could do at the time of federation.

At the time of Federation, the United Kingdom could have amended the Constitution Act of the Commonwealth (which includes the Constitution) because that Act was an Act of the United Kingdom.

A High Court judgement summarises the effect of s 51 (xxxviii) of the Constitution as it was interpreted in Port MacDonnell Professional Fishermen's Assn Inc v South Australia (1989) 168 CLR 340 thus: 'The effect of s 51 (xxxviii) is to empower the Parliament 'to make laws with respect to the local exercise of any legislative power which, before federation, could not be exercised by the legislatures of the former Australian colonies'. It represents an actual enhancement of the legislative powers of the States because 'it confers, by implication, power upon the Parliament of a State to participate in the legislative process which the paragraph requires, namely request (or concurrence) by a State Parliament and enactment by the Commonwealth Parliament'. There is a potential enhancement of State legislative powers because the Parliaments of the States are the potential recipients of legislative power under a law made pursuant to the paragraph. Any room for an inhibition against giving to the grant in s 51 (xxxviii) its full scope and effect by reason of what was once the status of the Commonwealth itself within the British Empire no longer applies'.

The Australia Act 1986 (UK) is a British statute. It is a fundamental or higher law which prevails over ordinary laws and it cannot be altered by any one Australian legislature acting unilaterally. Its force in Australia now must rest on the authority of the Australian legislatures empowered to alter the Act under S15 of the Act.

This Act has its source in the Statute of Westminster (section 4 of the Statute was then available) and was passed in case the Australia Act 1986 (Cwlth) was found to be invalid.

Because the Australia Act 1986 (UK) is a higher law and because the High Court of Australia has found that 'any room for an inhibition against giving to the grant in s 51 (xxxviii) its full scope and effect by reason of what was once the status of the Commonwealth itself within the British Empire no longer applies' it would seem self-evident that the collective force of the Federal and State Parliaments could amend the Australian Constitution without holding a referendum.

The following quote from the late Richard McGarvie's book "Democracy; choosing Australia's republic" provides a profound summary: 'With the power from the Australia Acts, the Commonwealth Parliament, by Acts supported by the state Parliaments, can amend the Statute of Westminster that precludes it from amending the Commonwealth Constitution, the covering clauses or the preamble'.

Richard McGarvie was a former Supreme Court Judge and Governor of Victoria.

For further information on this subject, go to http://www.statusquo.org to read "Is Our Constitution Safe?".

Email Address: support@statusquo.org

Website: http://www.statusquo.org

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 

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?

Letter to MLC Members.pdf

Email Address: support@statusquo.org


Website: http://www.statusquo.org

OUT OF HOUSE AND HOME AND NOW OUT OF CYBERSPACE; WHAT NEXT?

Not content with kicking the Governor out of Government House, Premier Bob Carr appears now to have removed any mention of the Governor from the New South Wales Parliament's web site. The Governor of New South Wales is the only Governor who does not have her own independent web site. All of the the other 5 states provide substantial - and stand alone - web sites for their Governor. In the main, these sites carry a wealth of information about the functions they attend and the speeches they have made. The Governor-General also has an independent and significant web site. No such service is provided to the people of New South Wales. They have no way of knowing what their Governor is doing and has done. They are not able to get any of the speeches she has made in an easy and quick manner. It would make one wonder if the Governor has been locked away in "the Tower". But maybe there is something more sinister down the track for New South Wales!

If the Labor Party wins the forthcoming federal election it will mean coast-to coast Labor dominated legislatures across the nation. That in itself is not the issue. The issue is that it would be far more likely for all State Labor Parliaments to resurrect their "Australia Acts (Request) Act 1999" to request the Commonwealth Government to amend Section 7 of the Australia Acts (Clth & UK) so that the States can become republics independently of the Commonwealth and without the will of the people.


While New South Wales, Queensland and South Australia have since repealed those Acts, Tasmania, Victoria and Western Australia have no plans to do so. This would mean that Tasmania, Victoria and Western Australia could easily amend the commencement date of those Acts to some other date that is convenient to the States. New South Wales, Queensland and South Australia could easily reintroduce new similar legislation in quick time. It is interesting to note that in New South Wales it took less than one month from when their Australia Acts (Request) Act 1999 was introduced to when it received Royal Assent!


But even more sinister and and equally convoluted is that a similar action (as explained by the late Richard McGarvie in his book "Democracy - choosing Australia's republic") could lead the Commonwealth Parliament with power from the Australia Acts, and by Acts supported by the state Parliaments, to amend the provision in the Statute of Westminster that precludes it from amending the Commonwealth Constitution, the covering clauses or the preamble. That means the Commonwealth constitution could be amended without the will of the people. Accordingly, and if a Labor wins the next federal election, Labor could hold a plebiscite to simply ask the people if they want a republic and if the people indicate "yes" then the Government could amend the constitution to make Australia a republic without any further consultation with the people.


And what next you may ask! As we well know the NSW Government intends removing the requirement for Ministers of the Crown to make an Oath of Allegiance to the Queen of Australia! And after that! Don't be surprised if you see "Bob the builder" down at Government House making some renovations before he moves in!


Email Address: support@statusquo.org

Website: http://www.statusquo.org

SENATE INQUIRY CONTINUES TO SHOW LACK OF KNOWLEDGE BY SENATORS

The ongoing Senate inquiry into an Australian Republic - headed up by half a dozen of our elected public servants - continues to throw up misunderstandings of Australia's constitutional arrangements by some our elected public servants.


Firstly, it was Senator Natasha Stott Despoja at the Adelaide hearing on 19 May who didn't know that she is a subject of the Queen of Australia.


Now it is Senator Bolkus, the Chairman of the Senate Inquiry, who shows off his ignorance about our Constitutional arrangements. At the Canberra hearing on Thursday, 29 July 2004, Senator Bolkus stated "I am then required on entering parliament to swear allegiance to a foreign power".


Senator Bolkus should note that Gibbs CJ in the "Pochi v Macphee" case found that "The Allegiance which Australians owe to Her Majesty is owed not as British subjects but as subjects of the Queen of Australia".


Additionally, the High Court decision (High Court of Australia, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ - Sue v Hill [1999] HCA 30 - 23 June 1999 - S179/1998 and B49/1998) relating to the Henry (Nai Leung) Sue - Petitioner and Heather Hill & ANOR Respondents case in which Heather Hill lost her right to take her place in the Senate post the 1998 Federal election further confirms the constitutional reality.


The High Court 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."


Senator Bolkus would be well advised to visit the web site www.statusquo.org/queenofaus.htm to brush up on his understanding about the Queen of Australia.


It is indeed unfortunate that people conducting the Senate Inquiry lack real knowledge and understanding about our magnificent Constitutional arrangements!


Email Address: support@statusquo.org

Website: http://www.statusquo.org

MR CARR WON'T HOLD A REFERENDUM ON PROPOSED CHANGE TO NSW CONSTITUTION

Bob Carr won't be holding a referendum on the latest proposed change to the New South Wales Constitution. In not holding a referendum, Mr Carr's commitment to full and open democracy falls well short of that of his federal counterpart, Mr Latham. Unlike the Commonwealth Constitution which requires a referendum for change, the anachronistic NSW constitution - apart from a few sections which protects the backsides of the NSW elected public servants - does not require a referendum for change at all! At the federal level, opposition leader Mark Latham has repeatedly indicated that he is developing plans to give democracy back to the people. Why don't we see any similar brainstorming by Bob Carr?


Professor Cheryl Saunders in her article "Updating our democracy" in the Sydney Morning Herald of 19 January 2001 stated "Fundamental rules about the acquisition of public power cannot confidently be left to those who presently hold power or have regular prospects of doing so". The NSW constitution dismally fails to meet the same the high standard of its Commonwealth counterpart in this respect. Even any incorporated association or company requires that a majority of its members approve of any changes to its rules. The NSW Constitution should be updated so that no changes can be made to that document without the approval of the people of NSW voting at a referendum. The way in which the NSW Parliament is required to operate should only be approved by the people of NSW and not by those who currently hold power.


That said, Mr Carr is continuing in his rush to break down our existing system of government without reference to the people; he booted the Governor out of Government House and now he intends to thumb his nose at the Queen of Australia by doing away with the oath of allegiance to her. As a Minister of the Crown he owes that allegiance; if he can't give that to our Queen then the people will never be able to believe him on anything at all even if they do so now!


With the Constitution Amendment (Pledge of Loyalty) Bill 2004 having progressed to the Ministerial second reading stage, it is now time for the Commonwealth Parliament to crack the whip and bring NSW into line as a fully democratic member of the Australian federation. Accordingly, the Commonwealth Government should hold a referendum in conjunction with the next federal election to amend section 106 of the Australian Constitution to require the States to only change their constitutions by referendum. The Commonwealth Government should also put an additional question to amend Section 15(1) of the Australia Acts to require that any changes to the Statute of Westminster and/or the Australia Acts only be changed by referendum. Proposed wording for these two changes can be obtained at http://www.statusquo.org/aru_html/html/const_change.html (the PDF version can be downloaded at http://www.statusquo.org/aru_home/html/research.html#edoc ). These changes would also require any new state to be similarly constitutionally bound.


Mr Carr is only making these changes because he can!


Email Address: support@statusquo.org


Website: http://www.statusquo.org