A Constitutional Journey

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The overall theme is an analysis of the current Act of the British Parliament, which Australia has used as its constitution since 1901. It looks at the history of this Act, and the subsequent manipulation by the legal and political fraternities, to cover up the fact Australia should have severed all political and legal ties with Britain when it became a member of the League of Nations in 1919.
The book is about the extraordinarily dishonest and fraudulent actions of Australia’s legal and political professions over the past 93 years to hide the fact that Australia is still a colony, or dominion, of Britain. As long as Australia continues to use the Act of the British Parliament as its constitution, it cannot be a sovereign and independent nation. The author offers some ideas for a truly Australian created constitution that can give every interested person an opportunity to contribute. A workable constitution defines the role of the government, and specifically, the powers the people are prepared to delegate to this body of representatives.
For information about how a democratic government should operate some ideas are listed in the webpage www.aussieindependence.com

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A Constitutional Journey

  1. 1. A CONSTITUTIONAL JOURNEY By Graham L. Paterson February 2013 1
  2. 2. Dedication I would like to dedicate the book to my wife Cynthia, and my sons, Alisdair and Stuart, who have accompanied me on this "journey", but also on all our travels to different lands where my career has taken me. 2
  3. 3. A CONSTITUTIONAL JOURNEY Graham L. Paterson INTRODUCTION I have written this book from the perspective of an ordinary Australian citizen who became aware that the Australian Constitution is the most important document in the lives of every person living in this country. Of course, very few people would ever think in these terms; many would probably dispute that statement, and the vast majority who know nothing whatsoever about the Constitution, would have no idea what I am talking about. The Constitution is the foundation for creating all the laws that govern our lives and for that reason alone, it is a crucially important document. However, a nation’s Constitution is, or should be, more than that. The Constitution should be an expression of the fundamental philosophy of the people who wish to live together in a society. In order to do this, a Constitution needs to be a creation of the will of the people, to be understood and embraced by the people and to identify the people as the fountainhead of all political ‘power’. To be a proper Constitution it needs to clearly define the powers and limitations the people are prepared to delegate to their elected representatives. Any powers not so defined must always remain the right and property of the people. A good Constitution requires a Preamble, which sets out the basic philosophy of their society and the fundamental rights, and principles, that have to be observed in making laws. The Preamble is to be considered an integral part of the Constitution for any subsequent judicial decision involving an interpretation of the Constitution. The Australian Constitution does none of these things. At root, it is nothing more than a contract between the governments of the 19th century colonies as to how they might share ‘power’ with a central government under a federated arrangement. When an ordinary person reads this Constitution, they cannot help but be appalled by the dictatorial powers allocated to the Governor General. Not only does this office represent the Commander in Chief of the Armed Forces, it also has the power to open or close Parliament at will and to appoint an, undefined, Federal Executive Council to advise on governing the nation. There is no mention of a Prime Minister in the Constitution or any original recognition of political parties. The whole of the Constitution is steeped in 19th century political thinking, which considers the
  4. 4. Government as the sole source of power with the authority to control the people as it sees fit. This thinking has been retained right up to the present day, not only by the Government but, also, by the High Court of Australia. This Court sees the Constitution, purely, as a legal document, to be interpreted and manipulated without any reference to the people, who should be, its rightful owners. The sad part of this story is that this Constitution has never been a ‘people’s’ Constitution because; it was drawn up by politicians and lawyers for their express benefit. The people need to reassert their authority as the source of all political power and reclaim the ownership of a truly ‘people’s’ Constitution for Australia. This can only be done by scrapping this present Constitution, which, to this day, is still one part of a nine-part Act of the British Parliament. The opportunity to exert the people’s control of their Constitution will arise the next time the Australian Republic is raised. This is mooted to happen when the present Queen of England abdicates or dies. That will be the opportunity for the Australian people to include the following type of binding Preamble into any new Constitution. PREAMBLE We the people of the Commonwealth of Australia, a Federation which was constituted under an Act (63 and 64 Victoria, Chapter 12) dated the ninth day of July 1900, have agreed to adopt this Constitution governing the Federal Commonwealth Parliament, the Government and all the Courts of our Nation, in accordance with our beliefs as set out in this Preamble. In setting out, herewith, the fundamental beliefs and principles governing the application of this Constitution, this Preamble must always be treated as an integral part of the Constitution in the formulation of Laws and Judicial decisions. WE hold to the belief that all Australians, including the descendants of the original Aborigine inhabitants, are created equal under the rule of Law, that we are endowed with certain inalienable rights; these include the right to life, liberty and the pursuit of happiness and it is the Parliament’s responsibility to guarantee that these Rights are sustained.. All Rights are ordained as the possession of the people who accept the associated responsibilities in the interest of our society and the Commonwealth of Australia. WE further hold to the belief in the Rule of Law as the only viable option for a Democratic Society. This belief is based upon the universal values contained in our historical Common Law heritage. 4
  5. 5. This heritage is covered by the Great Charters of England, handed down to us through the centuries as part of the development of British Common Law and subsequently incorporated into Australian Common Law. WE hold these values to be inviolate and that no Parliament, or Court, of the Commonwealth of Australia shall have the right to deny, or rescind the inherited rights, freedoms and obligations of any Australian citizen as provided by our Common Law heritage. WE, the people of Australia, hereby declare that we are a sovereign independent Nation made up of Australian States and Territories. WE, the people of Australia, further declare that our Parliamentary system shall comprise of an Australian Crown (or Presidency), a House of Representatives and a House of Senators, each of which shall be formed in the manner set down in this Constitution. WE also declare that the Government of Australia shall be vested and maintained in the four principal, independent, non-political areas covered by the Public Service Departments, the Police Service, all sections of the Judiciary and the Defence Forces of Australia. All Members of the Australian Crown (or Presidency) as well as every Member of the Australian Parliamentary system and of each of the Government Services designated above, shall, at all times, be responsible to the People of Australia and shall, as provided for in this Constitution, swear to such allegiance by the Oath of Office contained herein. WE, the people of Australia, declare that the responsibility for the Government of the Commonwealth of Australia shall be vested in the Members of the House of Representatives whom shall appoint, or elect, from their membership, a Prime Minister. The Prime Minister shall then select an Executive Cabinet, comprising of Members of either the House of Representatives or the Senate, with the duties and responsibilities, as provided for in this Constitution. Members from either House of Parliament shall be selected, by the Prime Minister to act as Ministers in charge of the various Government Departments, but, so as no one person shall be a Minister of more than two such Government Departments at any one time. The High Court of Australia shall be as set out in this Constitution and any judicial decisions relating to this Constitution must be with the unanimous agreement of all the Judges hearing the case. 5
  6. 6. The remainder of this Constitution shall be divided as follows:- By including reference to British Common Law and the Great Charters and Acts that form the basis of Australia’s Common Law practice, this Preamble automatically includes the Bill of Rights Act, the Habeas Corpus Act, the principles of the Magna Carta and the other historical Acts that contribute to the development of Common Law. This book describes the many paths and byways I have travelled during 28 years in trying to get an understanding of this all important document. Over the past 90 years, a great number of people have gone to extraordinary lengths to cover up a fundamental omission that was made in 1920. Australia had the opportunity to become a sovereign and independent nation when we were accepted as a founding member of the League of Nations. It was at that point in time when Australia should have severed all political ties with Britain by creating our own Australian Constitution and formally declaring our sovereignty and independence. That was never done and the original Constitutional Act of the British Parliament remains in place to this day. Politicians and High Court Judges have been clutching at straws ever since in their effort to deceive the nation about its true status in respect to the Monarchy and the United Kingdom. They have even come up with a ridiculous theory of Constitutional evolution, as though this antiquated, but important document has, somehow, acquired a will of its own. I have finally been able to comprehend why so many, supposedly, learned men and women, both inside and outside of Government and the legal fraternity, have had to resort to these extraordinarily dishonest actions. They had no choice. As long as the Australian Constitution remained an Act of the British Parliament, we could not be an independent nation in spite of what anybody may have said, thought or wished. This Act of the British Parliament, which is actually titled, “The British Colony of the Commonwealth of Australia Constitution Act 1900 (UK), puts us in breach of Articles XVIII and XX of the Covenant of the League of Nations (1920-1946) which invalidates the usage of the laws of Member States within the sovereign territory of other Member States. This same breach is carried over to Australia’s membership with the United Nations through Articles 2.1,2. 4, 102 and 103 in the UN Charter. It has been absolutely imperative for the Government and the High Court of Australia to avoid, and deny, any challenge to the Constitution because; such a challenge would immediately impact on the validity of these institutions. My journey is unfinished and will only reach its final destination when the Australian people, not the politicians and certainly not the lawyers, stand up, and in one voice, create their own, truly, Australian Constitution. 6
  7. 7. 2nd Oct. 2010 CONTENTS Chapter 1. The Journey Begins Chapter 2. A Fundamental question Chapter 3. A Step back into the Past Chapter 4. The Quest for Independence Chapter 5. The Unsavoury Creation of the Queen of Australia Chapter 6. The Question of the Governor General’s Appointment Chapter 7. The Ludicrous Evolutionary Theory Chapter 8. Allegiance to a Foreign Power Chapter 9. Questionable Actions of the High Court of Australia Chapter 10. The Republican Question Chapter 11. The Republican Advisory Committee Chapter 12. Republic v Monarchy – To be or not to be? Chapter 13. Referendums Chapter 14. Economic Democracy Chapter 15. The Global Market Chapter 16. Money as a Commodity Chapter 17. The Government Sanctioned Ponzi Scheme Chapter 18. Does Government have a solution? Chapter 19. The Debit Tax System and a National People’s Bank Chapter 20. State Owned Banking Chapter 21. A New Vision for a New Age Appendix 1. A Periodic Constitutional Review Process 7
  8. 8. CHAPTER 1 THE JOURNEY BEGINS This journey started in Indonesia, probably, around 1970. I initially visited Indonesia in 1967, two years after the coup that put President Suharto in power. I returned to that country in 1969, just as the foreign investment boom was taking off, and spent 3 very successful years running my own consulting business. I had a good command of the language from 3 earlier years in Malaya and this led to ongoing involvement in negotiations between foreigners, various local companies and Indonesian officials. Discussions involving the Indonesian Constitution often arose in the course of these negotiations and it was a bit of an eye opener that many Indonesians were completely familiar with this document. I soon became aware that copies of the Constitution booklet were sold at a great number of shops and street stalls across Jakarta. It was fortunate that my work took me to every main island in the Indonesian archipelago where I was confronted with this amazing distribution of the Constitution. I subsequently learnt that the Indonesian Constitution was taught in the schools as it embodied the 5 principles representing the Indonesian philosophy for their society. These 5 principles are known as the Panjasila and this is depicted in the Indonesian Coat of Arms. In essence, these principles are: • belief in god • belief in humanity • belief in national unity • belief in the sovereignty of the people and • belief in social justice. This was my first exposure to matters Constitutional, and in a sense, I was fortunate to have this encounter with what, I now recognise as a ‘people’s’ Constitution. It is a Constitution that is read and understood by the people and relates to their everyday lives. That does not necessarily imply that it is a perfect Constitution or one that defines and limits the powers of Government, or that it cannot be manipulated. 8
  9. 9. It occurred to me, I knew absolutely nothing about my own Australian Constitution, had never seen a copy, let alone read one, nor had it every been a subject discussed at school or any other place. When my family and I returned to Australia in 1972, I decided to acquire a copy of the Australian Constitution and see what it said. As it turned out, this wasn’t all that easy but I eventually did obtain a copy through the Government Printing Office, if I remember correctly. They say that every journey starts with one small step and reading that copy of the Australian Constitution was my first step on a 28 year journey through the absurdities, deception, misinformation, distortions, disinterest and astounding lack of knowledge surrounding this document. CHAPTER 2 A FUNDAMENTAL QUESTION What is the purpose and reason for having a government? Before we discuss this issue, it helps to understand the historic background that has evolved, and been perfected, in arriving at the present day’s attitude towards Government. Clearly, there are two very distinct and opposite views on how Governments should operate – on the one hand is the view of the politicians and bureaucrats who, as a class, represent the Government – then there is the view of the vast majority of people that make up the general population. From the government point of view, they are the ‘leaders’ and are responsible for ‘leading’ the people in the direction deemed most appropriate by the Government, in other words, exercising control. From the people’s point of view, the role of the Government is to serve the needs of the population by providing services that cannot be achieved through individual effort, or to put it more succinctly, to serve a public purpose. However, the historical fact that powerful financial interests have long had an inordinate influence on the political process has now become more obvious. This has been the case irrespective whether the Government is perceived as a democratic institution or an authoritarian one. That historic background dates back many centuries, and invariably derives from the feudal and monarchical system of “government” with it’s related peasantry and aristocracy. To quote Makinde Adeyinka, “The nature, necessity and scope of the miscellany of powers exercised by the state over the nation (meaning – the Government over the 9
  10. 10. people) is in one sense arguably as contentious in the contemporary circumstances of the Western world as it was in the distant pre-democratic medieval past. Back in 1589, Della Ragion di Stato wrote, “The Reason of State” and supported the philosophical amorality espoused by Niccolo Machiavelli in his political treatise, “The Prince”. Machiavelli’s contention that virtually any action taken by a ruler to preserve and promote the stability and the prosperity of his domain was inherently justifiable. Thus, the employment of violence, murder, deception and cruelty toward achieving these ends cannot be ruled out in so far as the ends justify the means.” This today has become, virtually, the universal handbook on how to organise a ‘Government’, and ultimately justifies so many unsavoury Government actions, which in turn, are replicated by anti Government movements. The inevitable result is explicitly explained by the contemporary, Vincenzo Vinciguerra, a participant in the formerly secret US –NATO program, codenamed “Operation Gladio”. .“Governments have to attack civilians, the people, women, children, and unknown people far from any political game. The reason is quite simple – to force the people to turn to the state for greater security. This is the political logic that lies behind all the massacres and the bombings which remain unpunished, because the state cannot convict itself or declare itself responsible for what happened." I have long espoused the notion, whether we believe it or not, our lives are governed by philosophy, and the fundamental philosophy of a society should be the foundation of its Constitution. Each of us; whether we recognise it, whether we apply it, and even when we don’t know it, - conduct our affairs on the basis of a philosophy. Philosophy, when it is all said and done, is nothing more than an idea – a concept – a suggestion of how we should live our lives. As a Human Being, we have the ability to choose any philosophy we like in determining how we want to live. For some people it is OK to lie, cheat, steal and even murder if it is their best means of surviving. Mostly though, and this includes the vast majority of us, we simply accept what other people tell us is best for us. A philosophy has no intrinsic worth unless it can be translated into some form of practical application. A philosophy must become a policy before it can be transformed into a system. But it is those philosophies, policies and systems that relate to people and will affect the way they live. Only people – human beings – can philosophise – and only people can translate philosophies into policies and create systems – and only people can run the systems. If we want to live in a 10
  11. 11. society – in a community – in a village - in a family – we have to have some system in place to let us know how we should relate to other people in those groups. Certainly, everyone could have their own system but, without some form of common agreement and common understanding, the end result, to say the least, would be chaotic. The fundamental reason we live in a society is because of the mutual benefits we get from cooperation, joint effort and mutual security. We should not live in a society that has no benefits for our mutual wellbeing and happiness, but unfortunately, through necessity rather than choice, many of us do. It comes back to philosophy – which philosophy should we adopt as the basis for establishing the systems that will make the type of society we wish to live in? If we are going to set up a system to establish the standards by which we wish to live together as a society, we need to ensure the primary purpose of that system is the protection of individual ‘rights’ for each of its citizens. In truth, the only ‘rights’ that can exist are those which can be sustained. The concept of ‘rights’ always involves the recognition of a responsibility to respect the ‘rights’ of other members of the society to which we belong. Once we abdicate the responsibility for determining the philosophy that is ‘best’ for us and our society and accept, without question, the philosophy someone else says is ‘best’ for us, we automatically establish a ‘power’ structure. Once this structure is in place its practitioners, inevitably, develop a lust to maintain and enhance the control over the people whom, rightfully, they should be there to support and protect. As far as I can see, if a society wishes to establish a set of standards aimed at harnessing the cooperation and relationship between its members, it can only be achieved in two ways. I would prefer to see this done by means of a mutually agreeable harmonising approach through the rule of law and a Constitution. The only other alternative is rule by force. The problem lies in finding the best way to translate the desired philosophy into a policy that can then be developed into a workable system for the benefit of people. The solution has been found totally elusive throughout the, relatively, short history of mankind. Among the reasons society chooses to form a Government is to ensure a supply of what they class as, “essential services”. In modern day parlance, these include such things as a drinkable water supply, a workable sewage system, a continuous 11
  12. 12. and reliable electricity supply, a similarly reliable postal service and a convenient road and transport system. These are but a few of the essential services a modern society needs in order to function, and is the reason society chooses to delegate the responsibility to a Governmental system to provide these essentials. To the extent that the private market can produce sensible and affordable services in selected and designated parts of these essential services, they should be encouraged to do so. The private market’s main area of interest, and responsibility, is in the commercial enterprise of manufacturing, service industries, resource development, sales and marketing. In today’s world of Commercial businesses, everything is controlled by the bottom line, and consequently, anything that hinders the all consuming profit motive is abhorred. Things like regulations, unions and taxes. However, many citizens of a society understand the need for regulations, unions and the things taxes, if intelligently spent, can do for them. “If intelligently spent” are the key words in respect to the way the Government of a monetary sovereign nation , such as Australia, uses the resources and funding available to them. It is in this respect that the people of a society will always get the Governments they deserve — UNLESS — the people control their Constitution and define the fundamental rules for regulating the way they will allow their Government to operate. Only then will they have a chance to get the type of Government they WANT.” CHAPTER 3 A STEP BACK INTO THE PAST On reading this Australian Constitution, it became very obvious why it is never taught in any school of the Commonwealth. Not only is it cumbersome and difficult to understand, but it also bears no real relationship to the way we are governed. It is certainly not a document that is written with the ‘people’ in mind and nor does it make any attempt to expound a philosophy which could be used as a foundation for building our Australian society. It piqued my curiosity as how this document evolved and that led me into the difficult and partially hidden path of early Australian Constitutional history. As it turned out, this proved to be an intriguing excursion which delved into the minds and lives of some of our, so-called, ‘Founding Fathers’. I learnt things about our 12
  13. 13. early history that I had never known. This was no easy research as the following information comes from a wide variety of sources, often contradictory. THE STARTING POINT While there were various advocates for the concept of a united Australia, nothing much came from these early efforts. The British Government made an attempt in 1842 by appointing Sir George Gipps as Governor in Chief of N.S.W. and Van Diemen’s Land. In 1849, a report from a Committee of the Privy Council in London, suggested the creation of a position of Governor of Australia, authorised to convene a General Assembly of Australia. In 1851, the Governor of New South Wales, Sir Charles Fitz Roy, was in fact appointed the first Governor General of “all Her Majesty’s Australian possessions”. However, shortly after 1855, when Governments in N.S.W. and Victoria were inauguration, the office of Governor General was discontinued. Although the Federal concept was kept alive, there was a decided lack of enthusiasm at the official level. Between 1860 and 1880, issues of concern arising between the Colonies were dealt with through a series of Intercolonial Conferences. At one of these Conferences held in Melbourne in December of 1880, a motion was passed to draft a “Federal Council Bill” for subsequent submission to a meeting in January 1881. The Bill was eventually abandoned through lack of support from the Colonies. It was not until 1883 that Federation again arose as a serious issue, prompted this time by outside concerns. The fear that Germany had designs on New Guinea and, with France coveting New Caledonia; it was sufficient incentive to initiate a Federal Australasian Council. This Council eventually met for the first time in Hobart, Tasmania, on the 25th January 1886. Although the Council continued to exist until 1899, meeting in alternate years, it achieved little to justify its existence. OUR EARLY COLONIAL HISTORY In 1855, the original colonial Parliaments of Victoria and New South Wales operated on the 'Representative principle', but specifically in terms of representation of interests. The estimated population of Victoria in 1855 was 260,000 people but only a certain number of MEN were allowed to vote, provided they met the qualifications of property, wealth and residence. The 47,900 male 13
  14. 14. voters represented 18% of that estimated population at the time. In Victoria, the thirteen country seats averaged 250 votes each while the eighteen seats for Melbourne and Geelong averaged 1350 votes per seat. The eleven additional Goldfield seats averaged 1850 votes each. Only about 30% of the males in Victoria were enrolled to vote for the Assembly and only 7% for the Legislative Council. In 1855, Parliamentarians were not paid; hence, only men of means were in a position to nominate. There was absolutely no concept of universal suffrage in that day and age nor was the concept of representative democracy a viable or accepted proposition. The Parliamentary system of the day was strictly controlled by vested interests of the ruling class with few, if any, forays into the issues of the unfranchised majority. To a large extent, this was in keeping with the customs and traditions prevalent at the time rather than any sort of deliberate attempt to deny people a say in Government. Unfortunately, these attitudes prevailed right through to the end of the century and into the early 1900's, and consequently, had a direct bearing on the formulation of the Australian Constitution. SIR HENRY PARKES In 1888, Sir Henry Parkes tried to have the name of the New South Wales Colony changed to 'Australia' but was unsuccessful in his endeavours. Probably, the real spark that ignited the fires leading to the first serious attempts to discuss Federation were lit by Major General Sir Bevan Edwards. This was a result of his report in 1889, on the need for a unified defence of the Colonies. Undoubtedly, one of the key events in the history of Australia's journey towards Federation was the Tenterfield Convention held on the 24th October 1889. Parkes took the initiative to start the ball rolling with his address to the convention. Why he did this, has long been the subject of conjecture. Parkes was always a man of vanity - he sought to glorify himself in a number of ways and tended to be intolerant of opposition. He was also a man of questionable morality, especially in terms of the Victorian age in which he lived. In 1889, he was embroiled in a scandal because of his second marriage to the mother of his illegitimate children. The Federation move offered the chance to deflect some of the attention away from this furore. Even to the end, Parkes was ambitious to receive the credit for setting the Federation movement in motion. 14
  15. 15. Parkes died in 1896 and did not live to see his idea of Federation become a reality but he has been accorded much of the honour he sought by being named as one of the ‘Founding Fathers’ of the Constitution. The Tenterfield Convention was promoted as the 'Federal Council of Australasia' to include representative public men from each of the colonies as well as New Zealand and Fiji. In all 12 representatives attended, including 2 from New Zealand but, none from Fiji, as the nominee arrived too late to participate. Each Colony was represented by a Politician and a Senior Public Servant. It can be safely said that not one representative had any abiding understanding, or commitment, to the concept of a ‘peoples' Democracy’. This conference was, purely and simply, a starting point for the sharing of 'powers' between the Colonies and a “strong Central Executive”, with the initial focus on some form of a common defence effort. The vital concern of each Representative was to maintain the vested interests of their Colony. There was absolutely no evidence of the general public's involvement or aspirations being a driving force behind this undertaking. The quest for Federation started with the Politicians and the Public Servants for the express benefit of the said Politicians and Public Servants, and unfortunately, little has changed today. My research has indicated that part of the motivation for Federation was the goal of the smaller Colonies being able to benefit at the expense of the larger Colonies while, the more populous Colonies saw the opportunity to gain greater control over an enlarged 'Nation'. THE 1891 CONSTITUTIONAL CONVENTION The 1891 Constitutional Convention was held in Sydney in March of that year. It gave birth to the first attempt in drawing up a draft Constitution that might be acceptable in forming a Federation of the separate Colonies. A Tasmanian lawyer, Andrew Inglis Clark, wrote an initial outline for a Constitution and this became the basis of the draft endorsed by the 1891 Convention. There was never any concept for developing a unitary Government system for Australia - from the start it was always conceived as a Federation of the Colonies. The Colonies agreed to 15
  16. 16. transfer certain defined and specific "powers" to a Commonwealth Government but to retain all other authority within their Colonial Legislature. This over riding principle was to cause most of the difficulty in working out exactly how the new Commonwealth Parliament would operate. On the one hand, certain of the politicians, with aspirations towards the Commonwealth Parliament, wanted to incorporate the English principle that supremacy of Parliament must always reside in the House of Representatives. On the other hand, those Politicians who saw their future in the State Parliaments demanded that the concept of Federation was the main principle, and therefore, the Senate must be on an equal footing with the House of Representatives. Essentially these two points of view are in direct conflict with one another and this has proven to be the case right through to the present day. Eventually, a compromise was reached and a draft Constitution formulated, very much from a legalistic point of view, due mainly to the four lawyer/politicians involved. These dominant participants were, Sir Samuel Griffith from Queensland, Andrew Clark from Tasmania, Alfred Deakin from Victoria and Charles Kingston from South Australia. Not one of these four 'eminent' people had the slightest concept of democracy, let alone any consideration of the people's involvement in the Constitution. To these four lawyer/politicians, the responsibilities of the ‘people’ lay in two areas - obey the law and pay taxes. For the selected and qualified few, they were given the privilege of voting for politicians, when allowed, and to vote at Referendums when such were permitted. All the rest of the deliberations in drafting a Constitution hinged, exclusively, on devising a 'reasonable' system of Government that would provide adequate control and flexibility for the politicians. From this point of view, they were highly successful, as this first draft was eventually used as the starting point for the second Constitutional Convention, held later in 1897. As it happened, only one of the 44 Delegates at this first Convention foresaw how the Senate, which was supposed to be a States house, would operate. Mr. John Macrossen correctly anticipated that the Senate would be dominated by Political Parties and the Members would therefore vote according to their Party dictates rather than in the interest of their State. This is a clear indictment of the level of foresight contained within the bulk of the Delegation, as well as being evidence of the inability of the delegates to approach the whole Constitutional question with any real measure of open mindedness. 16
  17. 17. The fact that the 'power' and influence of Political Parties was clearly recognised in 1891 is a further indictment of our, so called, ‘Founding Fathers’. They steadfastly refused to acknowledge this reality in the Constitution. They refused to address the foreseen problem of the Senate just as they refused to identify Political Parties as an integral part of the Political system that needed to be set out in the Constitution. By so doing, they lost the opportunity to create a meaningful Constitution that accurately, and honestly, defined the true nature of the political system they intended to adopt for Australia. THE PEOPLES' VOICE A ‘quaint’ proposal was put forward at the Convention to have the Governor General elected to the position. Although this proposal did not extend to the unheard of suggestion, of having the 'people' participate in this election, it was, nevertheless, thrown out as an ‘ultra-democratic’ move and relegated to nothing more than nuisance value. The response to this proposal is an indication of the type of thinking prevalent at the Convention by most of the representatives, and in particular, the leading representatives such as Sir Henry Parkes and Sir Samuel Griffith. Representative Democracy, people's rights and involvement in the development of the Constitution, were simply not part of the agenda and never really came into the thinking of these, so-called, leaders of Society. A further proposal was raised to have each Colony submit the 1891 draft Constitution to their "people" - meaning the eligible electors - for a vote. This was very quickly shot down in flames. In the interests of 'caution' and 'tact', it was stated that such a proposal was far too risky, because of the 'people’s' lack of understanding about the issues involved. Again the attitudes of our ‘Founding Fathers’ becomes clear - the Constitution was not an issue of concern to the general public - it was a political document specifically for the control and benefit of the politicians and lawyers. Unfortunately, this same attitude has persisted right through to the present day as is proven by the fact that the politicians have jealously guarded their assumed monopoly for initiating amendments to the Constitution. DR. JOHN QUICK 17
  18. 18. Following the 1891 Convention, enthusiasm for Federation waned within the various Colonial Parliaments. Parkes lost Government in Oct. 1891, and to a large extent, became a spent force in the Federation debate. Up to this point, Federation was driven almost exclusively by political interests, and to a lesser extent, by economic interests of the wealthier members of society. There was never any significant interest from the general population, and indeed, the politicians were at pains to ensure things stayed that way. When Parkes faded from the scene, Edmund Barton took up the quest with a personal campaign to broaden the interest in Federation beyond the bounds of Colonial Parliaments. His target was the Murray Valley area where problems of border Customs and trade loomed large. The outcome of Barton's efforts eventually resulted in the formation of some 15 branches of the Australian Federation League. As a result of this interest, a conference was held at Corawa in the Riverina on the 31st July and 1st August 1893. This conference was attended by many of the interested parties as well as politicians from Sydney and Melbourne. One of the aims of the conference was the development of a draft Constitution. Samuel Griffith, the Premier of Queensland, chaired the drafting committee and controlled every aspect of the drafting process. He is credited with re-drafting the document even before the convention got underway. At the conference, Dr. John Quick raised a novel and unprecedented proposal. He proposed that each Colony should pass an Act calling for the election of Representatives to attend a statutory Constitutional Convention. He further proposed that, if this Convention were able to produce a draft Constitution for a Federated Australia, this draft be put to referendum in each of the Colonies before adoption. Putting the draft Constitution to referendum was an unprecedented and profound departure from the political customs and concepts of the day. It certainly did not advocate anything like universal male suffrage and certainly did not countenance giving any vote to women. It was, however, a major step towards a truer Democratic process and placed Dr. John Quick in the forefront of reform, amply justifying his place as a real ‘Father of the Constitution’. This ‘novel’ proposal was eventually adopted by all the Colonies except Queensland. It became the basis of representation at the second National Australasian Convention. THE SECOND CONSTITUTIONAL CONVENTION 18
  19. 19. This second Constitutional Convention commenced in Adelaide in March 1897. It continued over the next 12 months with sessions in Sydney and, finally, wound up in Melbourne in March 1898. Each Colony sent along 10 'elected' representatives whose efforts resulted in a draft Constitution, based largely on the original draft emanating from the 1891 convention and incorporating most of the Griffith amendments. This draft Constitution was put to Referendum on the 3rd and 4th June 1898 in each Colony, except Queensland and W.A., both of whom declined to participate. A 'yes' vote was achieved in each of the other Colonies, but N.S.W. did not achieve the 80,000 majority decreed by Parliament for acceptance. Thus it was, this first attempt at a 'popular' referendum floundered. The result was received with mixed feelings. For some it was a justification of their stand that the Constitution was not a proper subject for the general population. For those on the ‘losing’ side it was a disappointment that the opportunity for ‘public’ involvement (albeit on a restricted and qualified scale) was seen as unsuccessful. Unfortunately, the pattern set for this Referendum has been used repeatedly for every Australian Referendum since. The ‘public’ are offered a simplified question on which to register a 'yes' or 'no' vote. This avoids the necessity of having to provide the complete details of the proposed amendments and allows for some superficial and simplistic explanations of the pros and cons of the proposal. Consequently, the majority of the voters are never given a full understanding of the implications and consequences likely to result from their vote. This was the case in 1898 when the eligible voters were asked to vote either for or against Federation, and thereby implying, they accepted the proposed Draft Constitution if they voted for Federation. There is very little evidence that the nitty gritty of the Draft Constitution was ever widely disseminated, or that detailed discussion of the document, as a whole, was either encouraged or undertaken. The fact was, the eligible voters were not asked to either approve or disapprove the Draft Constitution itself - the Constitution was taken as fait accompli - all the voters had to decide was whether they wanted Federation or not. When the Referendum proved unsuccessful, it provided the opportunity for the 5 Colonial Premiers to meet and redraft what they considered unsatisfactory. Consequently, they got together in January and February of 1899 and drew up their amendments to the draft Constitution. Of the several amendments proposed 19
  20. 20. by N.S.W., five were adopted, with one from Queensland and none from W.A. Mostly, these amendments were beneficial to the interests of N.S.W. as this was the most populous Colony and perceived to have the most at stake. Without further reference to any form of National Convention, the Premiers decided between them that a second Referendum should be held. The subsequent Referendums were held in the Colonies between February and September of 1899. Queensland agreed to participate on this occasion but W.A. still declined. The second Referendum succeeded in gaining the approved number of affirmative votes in each of the participating Colonies. The revised draft Constitution was then delivered to the Westminster Parliament in London by a five man delegation, comprising of a representative from each of the Colonies involved. The English Government demanded, and got over 60 amendments to the Draft before they were prepared to submit it to their Parliament. These amendments dealt with the issues raised by W.A., directly to Mr. Joseph Chamberlain, the Secretary of State for the Colonies, as well as issues dealing with appeals to the Privy Council in the U.K. The latter amendments were deemed necessary for the protection of British interests in Australia, especially, in respect to financial issues. The Australian delegation had no choice but to agree to these changes and the amended draft Constitution was finally incorporated into a comprehensive Bill named, "The British Colony of the Commonwealth of Australia Constitution Act 1900 (U.K.). This Bill consists of nine parts of which the ninth Part is headed ‘The Constitution’. This ninth Part of the Act is divided into eight Chapters, plus an Introduction, and 128 separate Sections. The ‘eligible’ Australian people were never asked to approve the altered document before it was enacted by the British Parliament on the 9th July 1900. This revised and unapproved version was subsequently proclaimed on January 1st 1901, making Australia a Federated colony of Britain. Fundamentally, the present Constitution is an agreement between the, so called ‘Original States’, (and this means the Parliaments of these States, or Colonies as they then were) to relinquish some of their ‘powers’ in favour of the formation of a central ‘power’ entity to be known as the Federal Commonwealth Parliament. What is important here is to recognise, exactly, the origin of this ‘power’ referred to by the State Parliaments, and the Constitution. All the early Colonial Governments worked on the assumption that ‘power’ was vested in the Government. What this assumption 20
  21. 21. implied was that it was the Government’s prerogative, the Government’s right and the Government’s responsibility, to ‘control the people’. Even with the advent of self governing Colonies, this same philosophy was carried over to the newly formed Parliaments. There was no universal franchise in those days and, basically, only property owners were eligible to vote on certain occasions. The other factor that reflected the thinking of Parliamentarians was that, apart from the Premiers and Speakers, all the rest of the Members were unpaid. As a result, only men of independent means could afford to stand for Parliament. Their interests, therefore, lay mainly in looking after their own welfare and class privileges rather than Society as a whole. It is this sort of background, coupled with the traditional class outlook imported from their English heritage, which fostered the view of the supremacy of Parliament in terms of the ownership of ‘power’. THE QUESTION OF ‘POWER’ When we talk of ‘power’, we are talking about it in a political sense. As stated above, the bottom line in respect to political ‘power’ is, always, control of people and thus, control of the society. It is nothing more and nothing less. ‘Political Power’ is a meaningless term without people! I believe this question of ‘power’ can only be addressed on the basis of philosophy. A society has to decide whether it wishes to exist on the basis of ‘rule of law’, anarchy, or ‘rule by force’. In using the term ‘Society’, I mean the people – not the politicians, not just the ruling classes and certainly not the financial elite. In theory, Democracy is supposed to be based on ‘rule of law’, but history, both past and present, has shown that Democracy is no guarantee that ‘good’ law will prevail. As has been proven time and time again throughout History - ‘Power’ corrupts and absolute ‘Power’ corrupts absolutely’. There are fewer better examples of this when Justice Lightman admitted that the Australian Prime Minister, John Winston Howard, flew to London and put pressure on him and the United Kingdom’s Court. This ‘incident’ occurred as a result of an appeal presented on behalf of a group of Australian citizens and heard between January 31st and February 1st 2005. A legal team, headed by an eminent British Queen’s Council (QC) and including Australian Barrister, David Fitzgibbon QC, appealed against a decision by Master Bencher Bowman, of the Chancery Division of the British High Court. The original case was a challenge regarding the validity of Her 21
  22. 22. Majesty's title as Queen of Australia and the issue of Letters Patents for the appointment of the Australian Governor Generals. In late June of 2004, Master Bencher Bowman handed down an, as-yet unpublished High Court judgment, acknowledging that there may be procedural faults in the vice-regal appointments process but it was an Australian issue and not within the jurisdiction of the British Courts. During the appeal hearing the British Attorney General submitted that the allegations were embarrassing and should be struck out even though no legal argument was presented to justify this request. Justice Lightman dismissed Mr. Fitzgibbon's appeal in the face of the pressure from John Howard, the then Australian Prime Minister, and was later reported to say that he failed to do the right thing. ‘Power’ can be used for ‘good’ but, mostly, it is used for ‘evil’ and again, this is amply proven historically. Governments and religion have been responsible for more bloodshed over the ages than any other element of society. THE CREATION OF THE FEDERATED COLONY OF AUSTRALIA Contrary to what is currently taught and believed by a great number of people, our Founding Fathers were quite clear in their understanding that, to quote Henry Parkes, ‘Federation is not independence. It is a chance for the colonies more effectively to unite with the Mother country in forming an Empire such as has never yet been formed’. This view was also firmly held by the other prominent participants in the Federation movement including, Alfred Deakin, Samuel Griffith, John Forrest and Charles Kingston. The Philosophy of Federation was, therefore, completely divorced from the question of Independence and also from the question of Democracy. With the advent of the First World War in 1914, King George V officially declared war on Germany on behalf Great Britain and its Dominions, including Australia. It is quite deceitful to describe the Australian Constitution as a ‘democratic’ document because; Democracy was never its motivation, nor its aim. The fact that certain ‘democratic’ practices have developed over the years, owes much more to 22
  23. 23. the Australian character than to any particular foresight, or ‘divine' wisdom, on the part of the ‘Founding Fathers’. One of the most telling aspects about the Australian Constitution is the fact that Dr. Quick and Sir Robert Garren published their ‘Annotated Constitution of the Commonwealth of Australia’ in 1901, and did so in 1008 pages. Obviously, any constitutional document that requires 1008 pages to help explain its meaning is very poorly written. Although this volume has often been used as a reference, in truth, it is primarily a collection of ‘opinions’ related to the colonial and imperial thinking of the day. As with the Constitution itself, that thinking bears little relevance to the political reality of today. Both of those authors were immersed in the Westminster system and they viewed the words in the Constitution as figurative in respect to defining their meaning in the context of that system. As for the constitution itself, it is largely devoid of meaningful definitions for most of the terminology and many of the entities created. CHAPTER 4 THE QUEST FOR INDEPENDENCE As far back as 1850, there has been a voice in Australia advocating Independence along Republican lines, but it had never been particularly popular or well organised. The idea burst into flower in the latter part of the 19th century and produced some notable examples, not the least being Henry Lawson’s Journal, ‘The Republican’. A number of other journals followed between 1887 and 1890, only to flounder in the face of the emerging push for federation. Independence involves severing the legal ties with England as distinct from having the separate colonies come together as a federation. Up until 1986, when the Australia Act was enacted, Australians were still considered to be British subjects and Britain was not a ‘foreign’ country. Many people today believe Australia is an Independent nation, but this idea of independence is actually a rather complicated, unfinished and unsatisfactory story. In 1850, the British defined their settlements in Australia as Colonies, and in 1901, granted the unification of these colonies into the Commonwealth of Australia. In 1907, the British Parliament changed Australia's status to that of ‘the British 23
  24. 24. Dominion of the Commonwealth of Australia’. At the 1911 Imperial Conference, when discussing an issue about treaties involving the Dominions, Sir Wilfred Laurier asserted that giving the Dominions the right to assent to a treaty was not an argument for separation and, Mr. Andrew Fisher, the then Prime Minister of Australia, agreed. The unquestionable proof that our subservient status to Britain existed through to 1914, comes from the fact mentioned above, that King George V declared war on our behalf as the British Dominion of Australia. The First World War is portrayed as a catalyst that led to a virtual organic transformation of Australia from its Colonial/Dominion status to that of a, supposedly, Independent Nation. This opportunity came about without any concerted effort or initiative from the general public. In fact, right up to this day, the public are generally unaware that any possible transformation could have taken place, let alone when and how it might have occurred. They are not alone in this field as this same, supposed, lack of knowledge and understanding applies to most politicians and virtually all the legal fraternity, right through to the High Court of Australia. As a preliminary to the formation of the League of Nations, an Imperial War Conference was held in London during 1917. Britain agreed, with the support of Woodrow Wilson, the President of the United States, that Prime Minister Hughes and his Deputy, Sir Joseph Cook, should sign the League of Nations Treaty on behalf of Australia, as an independent sovereign Nation. This invitation to join the League of Nations as a founding member in 1919, should have been the vehicle that changed our status from a Dominion of Britain to the independent Nation we were supposed to be. The League of Nations Treaty was signed on June 28th 1919, at Versailles in France, and Australia, theoretically, took its place in the world as an independent Nation. On September 10th 1919, Billie Hughes addressed the Commonwealth Parliament declaring, ‘Australia has now entered into a family of nations on a footing of equality. Australia has been born in a blood sacrifice.’ This speech was delivered in the course of ratifying the Treaty of Versailles in the Commonwealth Parliament, but apart from one unsuccessful attempt, it remains clear that neither the people nor the Australian Parliament, understood the true impact of this statement at the time. On January 10th 1920, the League of Nations became part of International Law with Article X of the Covenant of the League of Nations guaranteeing the sovereignty of each of its 29 members. 24
  25. 25. Hughes and Earl Page did make an attempt to establish Australia’s independent sovereignty by introducing a Constitution Bill in Parliament in 1921, but in the face of a hostile reaction, had to withdraw it in December of that year. These are indisputable historical facts. Unfortunately, it is at this point in our history, when all the ‘great’ minds of our ‘supposedly’ infallible legal fraternity, combined with the ignorance of the Politicians of the day, failed to legally formalise our new status. Not only did the politicians omit formalising our independence from Britain they also, conveniently, or ignorantly, omitted to inform the general public of Australia that they were now, supposed to be, officially independent. That our status, vis a' vis Britain, had changed was recognised, up to a point, by the next Prime Minister, Stanley Bruce. In 1923, he told the British Government, ‘We have to try to ensure there shall be an Empire foreign policy which, if we are to be in any way responsible for it, must be one to which we agree and have assented. If we are to take any responsibility for the Empire's foreign policy, there must be a better system, so that we may be consulted and have a better opportunity to express the views of the people of this country. We cannot blindly submit to any policy which may involve us in war.’ Again, it appears obvious that neither Bruce or his Government, nor anyone else in the Commonwealth Parliament, had any conception of what was required to cement the true significance of Australia's altered status emanating from membership in the League of Nations. Independence at that time in history was never a publicly oriented goal nor was it an issue motivated by public or political sentiment, just as it was never the underlying purpose of membership with the League of Nations. In a technical sense, Australia gained her pseudo Independence as a Sovereign Nation by default. Very few people at that time, or now, recognised the real significance of this event or have had the initiative to take the proper legal action required to certify this independence. The fact that it was not recognised for what it truly was, and the fact that it was never properly and legally formalised, in no way detracts from the reality that it did happen and we could have become an independent and sovereign Nation, effective from June 28th 1919. 25
  26. 26. The late Professor G. Clements, Eminent UK QC and emeritus Professor in Law at Cambridge University clearly understood the true legal position of the Australian Constitution when he remarked, ‘The continued usage of the Australian Constitution Act (UK) by the Australian Governments and the judiciary is a confidence trick of monstrous proportions played upon the Australian people with the intent of maintaining power. It remains an Act of the United Kingdom. After joining the League of Nations in 1919, Australia became a sovereign nation. It had no further legal power to use, alter or otherwise tamper with another nation’s legislation. Authority over the Australian Constitution Act lies not with the Australian government nor with the Australian people, it rests solely with the UK. Only they have the authority to repeal this legislation ...’ The fundamental problem with Constitutions is that they are, whether we like it or not, an expression of the basic philosophy adopted by the people of a Nation. In our case, the Constitution is very much a colonial Document expressing colonial attitudes of the era, and attitudes still retained today by a lot of the Australian citizenry. This is evident from the subservient attitude people hold towards the anachronistic monarchical system, even though the Queen has stated she has absolutely no authority over Australian affairs. Until people wake up to this and decide they want a change - and more particularly – that they want a say in developing this change – then we will be left with the abortion of a document we currently have. If one reads the Constitution literally, it really sets up a totally dictatorial regime with the Governor General being commander in Chief of the Armed Forces and given the power to assemble or prorogue Parliament at any time, plus withholding assent to legislation “at his leisure”. This is not how a proper Democracy is supposed to work. There is no mention of a Prime Minister in the Constitution, nor any mention of Political Parties, and it specifically states that it is the Governor General who selects his undefined “Government in Council” (technically the Cabinet, but in reality, something else) to “advise” him. Very little in the Constitution works the way it is pronounced – the way Parliament and the Government operate is based almost entirely on the code of unwritten “Conventions”, developed over the centuries by the politicians and Lawyers to suit themselves. 26
  27. 27. All our “Founding Fathers” were completely aware of this, as they were aware of the effect of Political Parties and the powers and influence of a Prime Minister. They chose to ignore all of this and then write in 39 clauses allowing parliament to change the Constitution at their whim and bypassing the need of going to the people. In this respect, the American Constitution is no different – and it is because of this sneaky underhand effort by Politicians, who wrote both documents, that the Constitutions have been manipulated to the extent they have been. THE AFTERMATH AND THE FARCE The subsequent actions and in-actions of all Prime Ministers since 1919 represents an ongoing dereliction of their proper duty which has now resulted in a monumental legal quagmire. In the intervening years, a number of attempts have been made to throw a cloak of legality over the events of 1919, but always under the carefully hidden subterfuge of refusing to acknowledge our independence. Apparently, the very document authorising the delegates of the Dominions to be appointed as plenipotentiaries, that is, as representatives of fully independent Nations, is said to have been written as a secret document with a nominal 30 year non-disclosure attachment. If this document does exist, I have been unable to locate it. The first farcical attempt to try and formalise Australia’s ‘independence’ from Britain was the Statute of Westminster, drawn up in 1931. This was a result of various resolutions passed by Imperial Conferences in 1926 and 1930, and because it was a statute that had to be passed by the British Parliament, it is further proof that Australia remained under the auspices of Britain. Legally, the Statute of Westminster was an ‘International arrangement’ involving Australia, Canada, South Africa and New Zealand, and under Article XVIII of the League of Nations Covenant, it had to be registered with them to become valid. This was never done for obvious reasons! The Australian Government, eventually, adopted specific parts of this Statute in 1942, but the fact that the Statute itself was never registered with the League, meant that the Adoption Act, as passed by the Commonwealth Parliament, was also invalid in law. The Adoption Act itself is further flawed by virtue of its reliance on Royal Assent by the Queen of England who, in terms of Article XVIII of the League of Nations Covenant, represented a foreign power. Hypocritically, 27
  28. 28. Britain conceded it no longer had any jurisdiction over the, supposedly, sovereign and independent Commonwealth of Australia, but still required legislation to be approved by the Queen’s representative in Australia. In reality, all these manoeuvrings were essentially futile in a legal sense because, the only proper, and legal course of action, was for Australia to adopt a new Constitution completely independent of the United Kingdom. Given the day and age in which the really monumental events of 1919 occurred, and even though they occurred virtually by accident, the philosophic foundations of the political thought at that time, precluded the possibility of drafting a new Constitution. Such an action proved beyond the conception or political reality of the day. The mentality of the times would never have been able to stretch to divorcing our ties with the ‘Mother country’. Consequently, future generations are left to sort out the mess. THE UNSEEMLY CONTRIVANCE It is hard to fathom the motivation behind the negotiators at the Imperial Conferences of 1926 and 1930 in developing the original resolutions leading up to the formulation of the Statute of Westminster. In one stroke of the pen, they have tried to abolish centuries of inherited traditional history that forms the backbone of every safeguard built into the development of British Common Law. Clause 2 of this Statute is an absolute abomination of the first order. The inclusion of the words ‘No law and no provision of any law made after the commencement of this Act by the Parliament of a Dominion shall be void or inoperative on the ground that it is repugnant to the law of England ----- etc.’ Effectively, this denies every participating Dominion protection of the Great Charters of British Common Law history. It is one thing to proclaim Independence, which is what the Statute was purporting to do, but it is quite another thing to act like spiteful parents and deny the peoples of these new, supposedly independent nations, the rights and freedoms won so arduously over the centuries by their forebears. This Clause should have been written along the lines ‘No law and no provision of any law made after the commencement of this Act by the Parliament of a Dominion shall deny, or rescind, the principles laid down in the Great Charters of British Legal heritage unless approved at referendum by the people of the Dominion’. 28
  29. 29. The great traditions involved in the development of British Common Law heritage represent the best foundation of any legal system in the world today. They are far too precious to jettison and put at risk the inherited rights and freedoms of the peoples' without attempting to include some guarantees. British Law is founded on their Great Charters, such as, the Magna Carta, the Bill of Rights of 1689, Habeas Corpus, Due Process of Law, and numerous others. Together, they form the basis of Britain's unwritten Constitution and should be, to all intents and purposes, untouchable by any contemporary British or Dominion Parliament. Not only did this Statute of Westminster significantly alter the Australian Constitution but it also altered each of the State Constitutions. In order for the Statute to become valid it had to be submitted to a nation wide Referendum as per Clause 128 of the Constitution. As every legal and political authority knows, this was never done and that makes the Statute ‘ultra vires’ as far as its Australian legal validity goes. The High Court, the legal fraternity and every Prime Minister since 1942 have been derelict in their duty by refusing to acknowledge that this statute does attempt to alter the Australian Constitution, and therefore, must be presented to the Australian people for their judgement. CHAPTER 5 THE UNSAVOURY CREATION OF THE QUEEN OF AUSTRALIA The problem of Australia’s quasi independence from Britain has been an unresolved dilemma for all Governments since 1919. Australia has a Royal Styles and Title Act which, in 1953, clearly identifies the Monarch as, ‘Elizabeth the Second, by the Grace of God of the United Kingdom, Australia and Her other Realms and Territories, Queen, Head of the Commonwealth, Defender of the Faith’. As mentioned above, according to Article XVIII of the League of Nations Covenant, the Queen is the Head of a ‘foreign power’ and, neither she, nor her Government, can have any jurisdiction over a, supposedly, independent Australia. This is clearly a ludicrous situation because; we were still tied to Britain’s apron strings, as the 1986 Australia Act proves. Even Justice Kirby is on the record in the Sue v Hill case before the High Court in 1999, with his remark, ‘I know this is an eccentric and personal view, but I have 29
  30. 30. always wondered what the UK Parliament was doing enacting law in 1986 in relation to Australia.’ In 1973, somebody came up with the rather ridiculous idea to have the politicians amend the 1953 Royal Styles and Title Act by renaming the Monarch and creating a Queen of Australia. They purported to do this at the stroke of a pen, without any formal coronation or swearing-in ceremony. However, then as now, this approach is fraught with problems because, any monarch so appointed, needs to be coronated and to swear allegiance to the people of Australia – or the Constitution, at the very least. For Queen Elizabeth II of the UK to do this would require her to swear allegiance to two separate countries and place her in an intolerable position as far as her British subjects are concerned. Of course, such a coronation never happened, even though, the 1953 Act was amended by Parliament to become the 1973 Royal Styles and Titles Act. Even if the change of the Queen’s title to ‘Queen of Australia’ had been ratified at Referendum, which it never was, and the Constitution duly amended, it still could not establish Australia’s independence. A further complication occurs in relation to the 1953 Royal Powers Act, which still relates to Queen Elizabeth II of the UK as the legitimate heir to Queen Victoria, who assented to the original Constitution Act. The 1953 Royal Powers Act has never been amended to cover the fictitious ‘Queen of Australia’. This whole farcical exercise does raise a number of other questions. How can a group of, supposedly, intelligent and rational ‘commoners’ believe they can create a royal personage simply by writing it down on a piece of paper? Did they stop to think for a moment, what was to prevent any future Government from declaring their Prime Minister a King or Queen of Australia? The whole exercise is so ludicrous it should be considered a joke in very poor taste if it wasn’t taken so seriously by the people who should have more sense. Clearly, as mentioned above, that change of title represented another fundamental amendment to the Constitution and needed to be put to referendum to establish its validity. If this were, in any way, a legitimate action, it opens up a legal can of worms because; the British Crown is dependent on the Parliamentary Act of Settlement of 1701 for its legitimacy. Far from being a Monarchy based on "divine right", the British Monarchy is completely dependent on an Act of Parliament that can be repealed at any time by 30
  31. 31. the Government of the day. What would Australia’s position be if, one day, the UK decided to become a Republic and jettison the Royal family? However, apart from that hypothetical question, the Kings or Queens of England do have some historical legitimacy to support their existence, but a Monarch of an independent Australia has no such legitimacy. The legal fraternity have bent over backwards to accommodate this ridiculous action by their political masters and they have done so by rejecting any semblance of commonsense. They have resorted to the mysticism of legalese and tried to shroud the issue in an impenetrable cloak of complex and misleading jargon. The truth of the situation is that this 'Queen of Australia' does not have permission to hold the Executive Authority necessary to make appointments and legally validate any Australian laws. She certainly was not given that permission by the Australian people, and she does NOT have that permission under the UK Act, the Commonwealth of Australia Constitution Act (UK) 1900. Even under specific UK legislation, she is only allowed to be known as the Queen of another country if the foreign policy of that country is controlled by the United Kingdom Parliament. Quite clearly, Australian foreign policy is NOT controlled by the UK parliament so, the Queen CANNOT be known as the Queen of Australia under requirements of her own laws. To any normal commonsense person, the issue is simple; nobody in this day and age, can create a Monarch at the stroke of a pen. Even if they could, it would amount to a major change to the existing Australian Constitution, and as mentioned above, that could only be legitimised through a Referendum. CHAPTER 6 THE QUESTION OF THE GOVERNOR GENERAL’S APPOINTMENT As stated above, every Australian Government since 1919 has faced this unsatisfactory dilemma regarding our supposed independence, and it remains unresolved, even today. As with so many other anomalies relating to the Australian Constitution, the appointment of the State Governors and, more importantly, the Governor General, have to be made under the authority of what is called, a Letters Patent, signed by the Monarch of the Realm. All appointments 31
  32. 32. to the office of Governor General up to 1984 have been made on the authority of a Letters Patent issued by Queen Victoria in 1900. Of course, this procedure is not specifically included in the Australian Constitution as it follows customary British practice. Although it is probably based on some obscure British law, it seems to be more in the realm of the unwritten conventions that come into play when an anomaly occurs. When Queen Victoria died on January 22nd 1901, she created a legal minefield because; the Letters Patent she issued became invalid. A new Letters Patent, signed and sealed by her successor, should have been issued, but that was never done. As a result, no Letters Patent affecting Australia have been issued by a lawful Monarch since. Currently, Queensland falsely relies on a Letters Patent issued by Queen Victoria in 1859. The legitimacy of the appointment of State Governors and the Governor General are critically important because, these people have to assent to any legislation before it can become law. In 1984, Bob Hawke, the then Prime Minister, went to Balmoral Castle and ‘advised’ the ‘Queen of Australia’ to endorse an Executive Instrument in the form of an Australian Letters Patent. Hawke was certainly aware there was a question about the legitimacy of the Governor General’s appointment and the lack of proper legal authority. He asked the fictitiously created Queen of Australia, to use the Great Seal of Australia and authorise a new Letters Patent. This was an attempt to avoid the risk of having the Governor General’s appointment challenged. Kevin Rudd subsequently visited the said ‘Queen’ in 2008, to revoke the 1984 Letters Patent and replace it with one that allowed the appointment of a woman as Governor General. Some people claim there is a legal problem with the use of the Great Seal of Australia when the Queen is not present in the country. On a number of occasions, various Attorneys General have been asked to provide evidence and authorities that the Queen, ‘in right of Australia’, can use the Great Seal of Australia when she is not personally in the country. Apparently, this is contrary to the Royal Powers Act, although the Great Seal of Australia doesn’t get a mention in that Act, or anywhere else in the Constitution, for that matter. To date no evidence has been forthcoming or the queries answered. That problem is apart from the fact that the 1953 Royal Powers Act still relates to Queen Elizabeth II of the UK and has never been amended to cover the fictitious ‘Queen of Australia’. These facts are not in dispute, but have been carefully hidden from public 32
  33. 33. knowledge, not only by the politicians, but also, by the legal fraternity, right through to the High Court of Australia. The situation is deliberately misrepresented in the interests of maintaining the status quo, as observed by Professor Clements in the quote above. All this is extremely important because, if there is any question about the legitimacy of the appointment of the Governors General, past and present, it questions the legitimacy of every law to which they have given their assent. This was the reason for Mr. Howard’s rushed trip to the UK in 2005, to intervene and pressure Mr. Justice Lightman to dismiss the Fitzgibbon challenge. As an interesting aside on the subject of Letters Patents, the King of England, William IV, in his proclamation of 1836, placed an all-important condition upon the settlement of South Australia with the words: ‘PROVIDED ALWAYS that nothing in these Letters Patent contained shall affect or be construed to affect the rights of any Aboriginal Natives of the said Province to the actual occupation or enjoyment in their own Persons or in the Persons of their Descendants of any Land therein now actually occupied or enjoyed by such Natives.’ As with so many other things in the early history of Australia, this condition was simply ignored and never enforced in any practical way. ADDITIONAL FARCICAL ATTEMPTS Unfortunately, most people labour under the misconception that the Australian Constitution is somehow a safeguard for the Australian people. Very few people seem to have any idea about the so called “original spirit and intent” of the Constitution. In essence, as mentioned above, it is nothing more than a agreement drawn up between the then Colonies as to how they might relinquish certain of their “powers” – meaning “powers to control people” – and transfer these to a central Government. There is absolutely no concept of this document being in any way a declaration for the establishment of a democratic society – in fact, the very thought of applying any significant democratic principles to the Constitution was strenuously, and successfully, argued against. The only real safeguard the people of Australia have against their Politicians is that contained in the various State Constitutions. Under the Federation system, each State Constitution remained the primary law for the individual citizens of the 33
  34. 34. Commonwealth and each State Constitution, without exception, was limited to making laws that were not “repugnant to the laws of Britain”. What this meant was, no State could make a law that was in conflict with the Great Charters of British History and the huge body of British Common law built up over the centuries. Those important charters, as listed above, included the Magna Carta, the Writ of Habeas Corpus and the Bill of Rights amongst others. All these milestones in the development of British Law applied equally to every Australian citizen. The States could not, and did not, relinquish this responsibility to the Commonwealth Govt. through the adoption of a Commonwealth Constitutional agreement. The ongoing legal and political disquiet over Australia’s true position, vis a’ vis, the United Kingdom, led first, to the Statute of Westminster 1931, which was eventually adopted, in part, by Australia in 1942. That Act did try to remove the safeguards covered by British Common Law, but as it was never endorsed at a referendum, its provisions are, in truth, ultra vires. A subsequent attempt to clarify Australia’s status was initiated with the creation of the Australia Act of 1986. In June 1982, Malcolm Fraser began discussions with the State Premiers on ways to overcome, what was still recognised, as an anomalous relationship with the UK. Discussion continued under the new Prime Minister, Bob Hawke, till June 1984. The outcome was another agreement to radically alter the Australian Constitution by creating the Australia Act of 1986. This required each State to pass individual Acts and alter their own Constitutions. It was then necessary to arrange a simultaneous proclamation by the Queen before the changes could become effective. While the proclaimed purpose of this Act was an attempt to try and make Australia appear an independent nation, it could not become effective until it was passed in the British Parliament. This was clearly a ludicrous situation and one in which anyone, with a touch of commonsense, must realise was a total deceit. Also, by confirming the Westminster Act and endorsing the ‘right’ of the States, and thereby the Commonwealth, to allow laws “repugnant’ to British Law, this Act perpetuates the treachery of denying the people’s common law heritage. It also represents one of the most fundamental changes to the Australian Constitution, and as a result, in spite of what politicians, lawyers and Judges may say; the Act cannot become law in this country until endorsed through a Referendum. What is most appalling is the fact that the legal profession has continued to conspire with 34
  35. 35. the Government and have never seen fit to mount any legal challenge against the acceptance of the Australia Act. The Australian Government used the Constitution’s innocuous sub-Section xxxviii of Section 51 to apply this change. That Section reads, ‘the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia’. It is obvious to ‘blind Freddy’ that, eliminating the powers exercised by the Parliament of the United Kingdom, after 86 years, is a major alteration to the Constitution. As such, this new Act would have to go to Referendum in Australia before it could become law, but that never happened. The other farce with this 1986 Australia Act, as mentioned above, was that it had to be proclaimed by the Queen of Great Britain and passed in the British Parliament. How this can be considered an Act of a ‘sovereign and independent nation’ is beyond rational explanation. But then, who ever considered politics, or the law, to be based on reason or logic? Tragically, the High Court of Australia has made absolutely no attempt to demand Parliament put the Act to a referendum of the people. Like the Statute of Westminster, the Australia Act does, unquestionably, alter the Australian Constitution and it is a complete dereliction of duty, bordering on treason, for the High Court to accept it’s legitimacy in any way. The other little interesting anomaly contained in Section 51 xxxviii is the reference to a Federal Council of Australasia. Apart from the fact such a Council no longer exists, it shows how outdated the Constitution really is. The Council did meet eight times between 1885 and 1899, but has never been convened during the life of the present Constitution. CHAPTER 7 THE LUDICROUS EVOLUTIONARY THEORY In spite of all the vain attempts to establish, and legitimise Australia’s independence, everyone has refused to discard an Act of the British Parliament as our Constitution. Eventually, some bright spark came up with the ludicrous theory of Constitutional evolution. This theory expounds the ridiculous concept 35
  36. 36. that Australia and its Constitution have, over the period of their existence, somehow, developed a will of their own and evolved into independent entities. Even the Commonwealth Solicitor General, Mr. D. M. J. Bennett, QC, tried to use this theory when he intervened for the Petitioners in the 1999 High Court of Australia case, Sue v Hill. He suggested that Section 51 xxxix could be used to advance the evolutionary theory of nationhood. The following is part of the transcript from that case: (My emphasis added) Mr Bennett. ‘The Royal Styles and Titles Act is an Act passed in 1973, part of the process of recognition of the Queen in relation to Australia. Gaudron J: Under what head of legislative power was that enacted? Mr Bennett: I suppose 51 (xxxix), your Honour. It is incidental to the nationhood power. Gaudron J: The nationhood power is implied. There is no 51(xl), is there? Bennett: No your Honour there is not. Gaudron J: Does 51 (xxxix) take you the distance? It is either under the implied nationhood power or it is not, is it not? Mr Bennett: Yes. Your Honour, Section 51(xxxix) can be read, I suppose, as ‘any power’ as including any or all powers’. This is a fine example of how the High Court of Australia arrives at decisions derived from ‘evidence’ based on supposition and implication. As an assenting Judge in the above case, Justice Gaudron commented, ‘The evolutionary theory is, with respect, a theory to be regarded with great caution. In propounding it, neither the petitioners nor the Commonwealth identify a date upon which the evolution became complete, in the sense that, as and from it, the United Kingdom was a foreign power. Nor could they point to any statute, historical occurrence or event which necessarily concluded the process’. Justice Callinan added, ‘The great concern about an evolutionary theory of this kind is the doubt to which it gives rise with respect to peoples' rights, status and obligations as this case shows. The truth is that the defining event in practice will, and can only be a decision of this Court ruling that the evolutionary process is complete, and here, as the petitioners and the Commonwealth accept, has been complete for some unascertained and unascertainable time in the past. In reality, a decision of this Court upon that basis would change the law by holding that, notwithstanding that the Constitution did not treat the United Kingdom as a 36
  37. 37. foreign power at Federation and for some time thereafter, it may and should do so now’. It is disappointing that Justice Callinan is only concerned that the ‘petitioners and the Commonwealth’ accept this ridiculous theory in order to establish its legitimacy and, at the same time, fundamentally alter the Constitution. Justice Callinan does not seem at all concerned with the opinion of the plaintiff and, by inference, the people of Australia. What is appalling is the degree of arrogance displayed by Justice Callinan in claiming that Australia’s independence depends on a High Court ruling when, clearly, that decision is entirely in the hands of the people. As mentioned above, Justice Kirby is on the record in this Sue v Hill case when he remarked, ‘I know this is an eccentric and personal view but I have always wondered what the UK Parliament was doing enacting law in 1986 in relation to Australia’. This last comment confirms that the application of reason and logic, as applied to legal argument, is considered an ‘eccentric’ approach. CHAPTER 8 ALLEGIANCE TO A FOREIGN POWER The problems relating to Part 4 Section 44(i) of the Constitution and the fact that many sitting members of both Houses of Parliament held dual citizenship in 1999 was well known to the Parliamentarians. They set up an Inquiry by the Joint Standing Committee on Electoral Matters, to look into the 1998 Federal Election. This was prompted by the fear of having a One Nation member elected to the Senate. The inquiry was aimed at circumventing the disqualification applicable to sitting members having dual nationality under that section of the Constitution. The original purpose of this subsection is to protect the parliamentary system by eliminating candidates whose performance might be affected by a conflict of loyalty. The inquiry felt this provision was, ‘widely considered to be no longer relevant in meeting this end.’ The Liberal Party proposed that ‘the act of nomination by a candidate for the House of Representatives or Senate should be recognised as immediately extinguishing any allegiance to a foreign country’, and the Government appointed Committee agreed. One of the official recommendations of the Committee was: 37
  38. 38. ‘That, given adequate public support, a referendum be held to amend the Constitution so that the act of nomination by a candidate for the House of Representatives or Senate be recognised as immediately extinguishing any allegiance to a foreign country provided the candidate is also an Australian citizen’. Of course, all the Parliamentarians knew that such a proposed amendment would never succeed at a Referendum so, the issue was shelved. In a Minority Report, Democrat Senators A. Bartlett and A. Murray said that, ‘Section.44 (i) of the Constitution be replaced by a requirement that all candidates be Australian citizens and meet any further requirements set by the Parliament....’. This change would also require a Referendum, and again, everyone knew it would never succeed. and it too, was scrapped. However, that did not resolve the problem of the One Nation candidate being elected to the Senate so, consequently, that issue was handed over to the High Court. This particular case became known as Sue v Hill and the Court found in favour of the petitioners with a split decision, four to three. They decided that the UK was, indeed, a ‘foreign power’ and thereby denied Heather Hill her election to the Senate, even though she was an Australian citizen but hadn’t completed the renunciation of her British citizenship. Section 44 (i) of the Constitution is quite specific when dealing with disqualification of members in the Houses of Parliament. Section 44(i) states:- Any person who (i) is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or ---- shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives. When this was originally written, Britain was not considered a ‘foreign power’ but, according to Justice Callinan, his view was, ‘At the very latest, the Commonwealth of Australia was transformed into a sovereign, independent nation with the enactment of the Australia Act’. On the other hand, Chief Justice Gleeson was of the opinion, ‘The Commonwealth of Australia, as such, had assumed international personality at some date well before the enactment of the Australia Act. Differing views have been expressed as to the identification of that date …..’. 38
  39. 39. The above extracts from the deliberations in the Sue v Hill case shows there is little understanding, or agreement, regarding Australia’s status as an independent nation. As a reaction to the outcome of this case, I sent the following letter to the Commonwealth Attorney General on the 14th January 2000 but, at that time, I did not know of the 1975 amendment to the Common Informers (Parliamentary Disqualifications) Act. Graham L. Paterson **************** 14th . Jan. 2000 The Hon. Mr. D. Williams, The Attorney General, Parliament House. Canberra. A.C.T. 2600. Dear Mr. Williams, It has been brought to my attention that the following list of members of Parliament currently hold dual nationalities. In accordance with the recent ruling of the High Court in the Sue v Hill case (1999) HCA 30 (23rd . June 1999) these members are no longer eligible to hold office. Under Section 46 of the Australian Constitution, and in line with the above ruling, I believe you are holding the Australian taxpayer open to considerable liability by not taking prompt action to comply with the High Court ruling. Would you please explain to me why Senator elect, Heather Hill, was denied office while the members listed below are allowed to remain? Sen. Tsebin Tchen China Dr. Andrew Theophaneous Cyprus Mrs. Margaret May Fiji Mr. Bernard Ripoll France Sen. Erir Abetz Germany Mr. Petro Georgiou Greece Sen. Alex Somylay Hungary Mr. Phillip McKiernan Ireland Mr. Phillip Barresi Italy Mr. Con Sciacca Italy Mr. Christian Zahra Malta Mrs Joanna Gash Netherlands Mr. David Cox New Zealand Mr. John Fahey New Zealand Senator Jeannie Ferris New Zealand Ms. Jacqueline Kelly New Zealand Mr. Tony Abbott United Kingdom Sen. George Campbell United Kingdom Sen. Stephen Conroy United Kingdom 39
  40. 40. Sen. Chris Evans United Kingdom Mr. Martyn Evans United Kingdom Sen. Brenda Gibbs United Kingdom Ms. Julie Gillard United Kingdom Sen. Susan Mackay United Kingdom Sen. Andrew Murray United Kingdom Sen. John Quirke United Kingdom Sen. Nick Sherry United Kingdom Mr. Robert Charles United States I shall await your reply with interest. Yours truly, Graham L. Paterson Needless to say, I never received a reply nor was any action taken against any of the members listed. In the above letter, my reference to “holding the taxpayer to considerable liability” related to Section 46 which follows on from Section 44 and provides the penalties for sitting when disqualified. Section 46 reads: Until Parliament otherwise provides, any person declared by this Constitution to be ineligible of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction. The reason no sitting member has been sued is because of the ‘escape’ phrase, ‘Until Parliament otherwise provides’. In 1975, Parliament stooped to gut Section 46 and the designated penalty by reducing the 100 pounds a day to $200 for each day of unlawful sitting. In 1900, 100 pounds was the equivalent of several year’s wages for an ordinary person whereas $200 was equal to one day’s pay for a politician in 1975. This amendment to the Constitution was done under the ‘Common Informers (Parliamentary Disqualifications) Act 1975’ and it effectively nullifies the ability of any person seeking to sue a disqualified member. They did this through Section 4 of the amendment which is titled, “Suits not to be brought under Section 46 of the Constitution”. Section 4. On and after the date of commencement of this Act, a person is not liable to pay any sum under Section 46 of the Constitution and no suit shall be instituted, continued, heard or determined in pursuance of that Section. 40
  41. 41. The amendment is a totally despicable action by the politicians to protect party members whom they knew were in breech of Section 44 (i) of the Constitution. To make matters worse, the Governor General gave assent to this law on April 23rd 1975, in total disregard to the effect it had in altering the Constitution. As with so many other anomalies related to this Constitution, there appeared no restriction on how many ‘persons’ could sue any declared disqualified member, but the 1975 amendment restricted the action to a single person. Part 1 of Section 44 (i) of the Constitution has been consistently ignored by Parliament for decades. Supposedly, there is another unwritten convention that requires Parliament to declare a sitting member disqualified before any action can apply under this Section of the Constitution. While the risk of disqualification still applies, the above amendment extinguished all penalties relating to disqualified members. However, that amendment did not provide an excuse for not proceeding with the disqualification of those members listed in the letter. So far, Parliament has declined to make any such declaration despite the fact there were, and may still be, members sitting in Parliament with dual citizenship. The Government relied on the High Court to deny Heather Hill her seat in the Senate because she represented the One Nation Party, but they declined to carry over the ruling to existing sitting members. As a result, those members haven’t been declared disqualified, as they should have been if the Government had acted properly and honestly. An action is still theoretically possible, but it would be a very expensive exercise and, in all likelihood, the High Court would refuse to hear any challenge under Section 44(i) of the Constitution. Although the Court is not obliged to give reasons for refusing to hear a case, they would probably take that action on the grounds it may risk bringing down the Government if the members were forced to vacate their office. That of course, is not a legal argument, but legality does not appear to be an issue that hinders High Court decision making. CHAPTER 9 THE QUESTIONABLE ACTIONS OF THE HIGH COURT OF AUSTRALIA In 1992, the High Court of Australia was reported to have made the statement, ‘All powers of the Government, ultimately, belong to and are derived from the governed’. 41
  42. 42. This is a bit of an insight to the legal mind which does not appear to have a perception of the people as free and individual entities, but only as a group that is there to be ‘governed’ or, in other words, ‘controlled’. In theory, the High Court is supposed to be an independent entity made up of the most eminent and knowledgeable Justices in the country. If this were true, and the seven people sitting on the High Court have this wealth of common knowledge about the law, why is it they can seldom come to a unanimous decision? The logical answer is; because these people are not dealing with the law, they are dealing with ‘opinions’. It has long been my contention that any case relating to a Constitutional issue must be decided by a unanimous decision. If these seven eminent people cannot agree on an interpretation of the law then their correct course of action is to return the question to Parliament and set out the reasons why agreement cannot be reached. Parliament must either amend the law to clarify the ambiguity, or rescind it completely if it is bad law. When the Court arrives at a split decision of four to three, what it really means is that the decision is based on the opinion of one person. Any split decision is clear proof there is something wrong with the decision, even if only one Justice is in dissent. The Constitution is worded deceptively in respect to the appointment of Judges to the High Court of Australia. Section 72(i) of the Constitution says the Justices ‘shall be appointed by the Governor General in Council’ but omits to define how these appointments are to be selected. It appears to be an unwritten convention which allows the selection to be made by the Prime Minister. The selection is not subject to Parliamentary approval and, obviously, no Prime Minister in his right mind is going to select a Judge who is not politically compatible. This arrangement cannot but help tarnish the supposed independence of the High Court. When this is coupled with the acceptance of split decisions, it is conclusive proof that every one of those decisions is based on opinions and not on unbiased legal analysis. However, there is another system available that would mitigate many of the real and perceived flaws currently applicable to the present arrangement. In keeping with the concept of a federated Commonwealth, it makes a lot more sense to have each State nominate their representative to the High Court of Australia. Although this may not eliminate political bias, it would contribute to a more balanced view regarding the perception that most of the Court’s decisions favour the Federal Government. It is simply a matter of human nature for a person to feel a degree of responsibility for the largesse showered upon them by those in authority. 42
  43. 43. Far too many High Court decisions have been made on the basis of majority rulings where the Judge’s personal attitudes and opinions have held sway. Split decision come under the realm of ‘Judicial Review’, which is neither spelled out in the Constitution nor implied. Every decision made in this category has political ramifications and are never based on strict legal principles. As such, many of these decisions have far reaching Constitutional implications that can effectively change the way the Constitution is interpreted. Section 76 and 76(i) of the Constitution are extremely dangerous provisions in respect to maintaining the integrity of the Constitution. They read as follows:- Section 76 The Parliament may make laws conferring original jurisdiction on the High Court in any matter: (i) arising under this Constitution, or involving its interpretation. This Section is very ambiguous to any ordinary person because it does not explain which matters it is referring to when granting original jurisdiction to the Court. Is there a blanket law that gives the Court carte blanc to interpret the Constitution in any way they see fit? Or, is it necessary for the Parliament to pass a specific law in each case when they want to confer this authority on the Court? Even Quick and Garran ignored this ambiguity but they did comment on the fact that the wording of ‘in any matter’ was ‘apparently’ deliberate rather than being written as, ‘in all matters’. Of course, the politicians and the legal fraternity probably resort to their mystical legalese to declare this section of the Constitution is perfectly clear in its meaning and intent. Anyone else would see this as open slather in the way the Constitution is interpreted. This is further justification for the argument that all decisions involving a Constitutional interpretation must be decided by unanimous agreement. JUDICIAL REVIEW PROCESS There is a question of the legitimacy when the High Court exercises an assumed ‘power’ to alter the Constitution by way of their Judicial Review Process. On 11/11/2003, Sir David Smith, who was the official Secretary to five Governors- General from 1973 to 1990, commented on the way Sir Anthony Mason, the former Chief Justice of the High Court, used this usurped ‘power’. 43

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