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!

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!

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!

Click here to read "Is our Constitution Safe?"

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!

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

SENATOR BROWN REMAINS SILENT ON THE NSW GREENS DECISION TO VOTE TO CHANGE THE NSW CONSTITUTION WITHOUT A REFERENDUM

NSW Legislative Council member Lee Rhiannon has described the Australian peoples' record on producing affirmative referendum results as being "poor". "Astute" would have been a better word to describe our referendum results as Australians will not support changes that will give elected public servants more powers and/or do not provide tangible benefits to the people themselves!


Ms Rhiannon has also indicated that the Greens support a two-stage process to establish a republic. That includes an initial non-binding plebiscite followed by a consultative process to determine the model for the republic and the method by which the Head of State should be elected.


That said, Ms Rhiannon doesn't believe in any consultative process before changing the NSW Constitution; she believes that most people in NSW would support the change to the Oath of Allegiance despite the fact that she has no tangible and overwhelming evidence to arrive at that conclusion.



Obviously, Ms Rhiannon does not subscribe to Professor Cherryl Saunders' sentiment that "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"!



But not all people think the same way as does Ms Rhiannon.



The Federal Independent Member for New England, Mr Tony Windsor, has now written to the Prime Minister (see attached PDF) asking for his consideration in respect of initiating the process to require States to conduct referendums in relation to such proposals.



Meanwhile, Senator Brown - who leads the Greens - remains abnormally silent on this issue!

Email Address: support@statusquo.org


Website: http://www.statusquo.org

Tony Windsor.pdf

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

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

CARR USES REPUBLIC TO HIDE HEALTH AND TRANSPORT PROBLEMS

The report in the Sunday Telegraph of 2 May that NSW Premier Bob Carr will reintroduce a Bill to change the oath that our elected public servants will take in lieu of swearing allegiance to the Queen of Australia is a ruse to try and hide the mismanagement of the health, education and transport portfolios in NSW. A similar Bill didn't get off the ground when it was dumped in the Upper House in the mid 1990s.


The Report in the Sunday Telegraph alluded that our elected public servants swear allegiance to Queen Victoria. Of course, that is not the case as Section 6 of the Oaths Act 1900 provides for the substitution of the name of the incumbent Sovereign. This is consistent with the Australian Constitution in which a similar oath makes reference to Queen Victoria. The Oath contained in the Australian Constitution also provides for the substitution of the incumbent Sovereign's name in lieu of Queen Victoria!


However, a more disturbing issue about Mr Carr's proposal is that the Section 12 of the NSW Constitution Act 1902 may also have to be changed. Although that section states that an oath of allegiance will be taken in the form prescribed by the Oaths Act 1900, that section also provides for certain procedures relating to the demise of the Sovereign in respect of the Successor to the Crown.


The people of New South Wales do not own their constitution; in the main, it belongs to the elected public servants. Most of the NSW Constitution - including Section 12 - can be amended or repealed without reference to the people of NSW. If Mr Carr was serious about making our State more democratic he would make sure that no part of the New South Wales Constitution could be amended or repealed without a State referendum.


Mr Carr should take note of a statement made by Professor Cheryl Saunders in her article about the Australian Constitution in the Sydney Morning Herald of 19 January 2001 viz: "Fundamental rules about the acquisition of public power cannot confidently be left to those who presently hold power or who have regular prospect of doing so". Surely that premise applies to the New South Wales Constitution as well!

If Mr Carr really believes in democracy, the first thing he would do is have a referendum to allow the NSW people to gain ownership of their constitution. No changes to our State Constitution should be made until that happens! 

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

LATHAM'S LOST REPUBLIC WILL REMAIN SO

Labor leader Mark Latham's processes for an Australian republic will fail before it gets off the ground.
Mucking around with "indicative plebiscites" is a dangerous game to play when dealing with matters that should be addressed only by s128 of the Australian constitution. There are two things that Mr Latham would be wise to consider before going down this path.

Firstly, there is an aspect about the conduct of a plebiscites that should be considered carefully. That is, if a plebiscite shows that a majority of Australians wish to have a republic, Latham's Labor could be faced with the prospect of their republic being rejected at a subsequent referendum. This situation could occur because an indicative plebiscite to give the government approval to proceed with a referendum may only be passed by the smallest of majorities i.e. 50.01%. However, a referendum itself, which will also require a majority of states to approve, may not be endorsed. This would present a predicament of Gilbertian proportions to the rest of the world as well as embarrass those who seek the establishment of a republic. 


Noting that all of the 8 referenda passed to date have achieved more than 54.38% Australia-wide, 4 additional proposed referenda, which achieved more than 50% overall, did not gain the necessary majority of states in each case. Sustained polling on the republic issue to date doesn't appear to guarantee endorsement by the Australian people. 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. Historically, this seems an unlikely event.

Another and more sinister scenario is that if a plebiscite indicates that a majority of Australians support the general concept of a republic then constitutional change could take place without the will of the Australian people. In his book "DEMOCRACY choosing Australia's republic", the late Richard McGarvie correctly asserts 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".

Clearly, and with the "moral" support of a successful plebiscite, the combined Australian parliaments could alter the Australian constitution to convert Australia's current stable form of government to that of a republic without further consulting the Australian people. This may not seem so crazy if Latham's Labor wins the next federal election; that could see all of the Australian states and the Federal government under control of Labor. It should also be remembered that the Australia Acts were, principally, a child of the Hawke Labor Government. There is nothing in law that prevents constitutional change in this manner.

Australians should be very wary of any plebiscite that seeks opinion on any proposed constitutional change. See "Is Our Constitution Safe?" for further reading on this subject at www.statusquo.org.

Email Address: support@statusquo.org

Website: http://www.statusquo.org

HOWARD'S WAY WILL FAIL

The Prime Minister's options for constitutional changes to the Senate will fail in a heartbeat. Both of these options have some major deficiencies.

Firstly, it would require the people to give up a power that they currently have in the Constitution to the Government of the day. This in itself is likely to ensure that the referendum fails.


Similarly, it would remove a large chunk of the Senate's power as it would no longer have the ability to disagree with government legislation.


Finally, if either of the proposals was approved, it would not always guarantee to solve a deadlock because these options are dependent on the number of Government members and Senators at any given time. It is probably reasonable to assume that, with the current Senate arrangements, and when the numbers of the major parties in both Houses are close to equal, the more frustrating and less likely it would become for governments to get their legislation through the system!


The Prime Minister's options just fiddle at the edges. There is only way to fix the ongoing Senate problem and that is to reduce the number of Senators without reducing the number of members of the House of Representatives while retaining a nexus between both Houses.


The Constitution Alteration (Parliament) 1967 Referendum, had it been successful, would have broken the nexus entirely which would have allowed the Parliament to increase or diminish the numbers in both Houses independently of one another. A minimum number of 10 Senators and 5 members for the original States would have been entrenched in the Constitution. This proposed change gained an overwhelming NO vote in all States except in New South Wales where voters agreed to the change with 51.01% in favour. Failure was probably due to the fact that the people probably saw that this would have reduced their constitutional powers in that the nexus would have been abandoned.


The only way to fix the problem in the long term is to:

1. Reverse the nexus to make the House of Representatives the controlling agent in lieu of the Senate,
2. Set the number of people in each electoral division to be, as nearly as practicable, 80,000 - a figure that the arguments for change to the Senate was based on and which eventually led to the Representation Act 1983 which provided for 12 Senators for each of the original States, and
3. Set the number of Senators to be, as nearly as practicable, one quarter of the number of members in the House of Representatives.

That way, the numbers of both Houses would grow automatically and incrementally with population increase and would not need any further massaging by our elected public servants for the foreseeable future. This is more likely to be endorsed by the people than any other option; it will also fix the Senate numbers problem caused by the ease at which candidates can become elected to the Senate at a dissolution. Additionally, the government would not have to wait on Senate approval to get such a Constitution amendment Bill to be passed and presented to the Governor-General for submission to the people as S128 of the Constitution provides for such deadlocks in the Government's favour.


Further reading on this proposal can be accessed in the the document titled "Senate and Sensibility" located at "www.statusquo.org/aru_html/html/senate.html ".


Notwithstanding the aforesaid, any change is unlikely to take place unless there is genuine will from all of our Federal elected public servants to make change. Much will depend on whether or not our Federal elected public servants are able to place the Australian national interest well ahead of any selfish or political ideology. But if nothing is done, all we can expect is more of the same or an increasing chance of the Senate becoming even more contentious than it is now!


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