SHOULD AUSTRALIA INTRODUCE A FORMAL CITIZENSHIP TEST?

Unequivocally! 

Only a formal test can accurately measure the understanding of prospective citizens of a country that they intend to become a citizen of.

The attached PDF was a submission to the Citizenship Task Force, Department of Immigration and Multicultural Affairs: Submission to Citizenship Task Force

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!

Tony Windsor.pdf

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.

--------Copy of 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 here.

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 here.

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

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!