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While New South Wales, Queensland and South Australia have since repealed those Acts, Tasmania, Victoria and Western Australia have no plans to do so.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!

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!

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! 

SENATE INQUIRY INTO AN AUSTRALIAN REPUBLIC IS FLAWED JUST LIKE THE 1999 PROPOSAL

The current Senate inquiry into an Australian Republic, headed up by half a dozen of our elected public servants, has failed to present an even balance from both sides of the republican debate.


To date, 28 of the 33 participants who have aired their views before the committee at a raft of public hearings in each of the state capitals (except Brisbane) are republican. Accordingly, the committee has shown a distinct reluctance to listen to anyone who opposes the introduction of an Australian republic. This will only result in a biased finding by the committee.


That said, there has been one positive result emerging from the hearing and that is that there needs to be better education about our constitutional arrangements. Not only do the people of Australia need to have better access to accurate material relating to our constitution but so do our elected public servants if some of the comments from the hearings are any guide.


At the Adelaide hearing on 19 May, Natasha Stott-Despoja posed the following question to one of the participants "Am I a subject of the Queen?". Fortunately, the person to whom she was posing the question put her on the right track. Had the Senator read and understood the Australian constitution she would have known that we are all subjects of the Queen as section 117 of the constitution asserts. Further, 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" further confirms the constitutional reality.


It is a pity that the Senator does not understand our constitution but then again wasn't she the person who turned Canada into a republic by just moving her lips a few years back?


With the Darwin and Townsville hearings still to be undertaken at the end of June one wonders what other gems may come out of the hearings. Maybe a short sojourn in the warmer climes during the southern winter cold will help move things along. Learn more about the Australian Constitution.

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 Constitution: Proposed Changes. These changes would also require any new state to be similarly constitutionally bound.


Mr Carr is only making these changes because he can!

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. Goto Is Our Constitution Safe? for further reading on this subject.

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.

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!