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Comments On The 1999 Referendum Bill to Establish A Republic COMMENTS ON THE 1999 REFERENDUM BILL TO ESTABLISH A REPUBLIC
Commentary on a Bill for an Act to alter the Constitution to establish the Commonwealth of Australia as a republic with a president chosen by a two-thirds majority of the members of the Commonwealth Parliament, by Glenister Sheil
The Exposure Draft of this Bill is misleading in every major particular. For example it purports to "alter" the Constitution, but in reality it represents the complete demolition of the Constitution. The Bill also claims an authority from the Constitutional Convention to which it is not entitled. The Constitutional Convention did not "support the adoption of a republican system of government based on a 'bi-partisan appointment of the President model'", as claimed. Explanation: The republicans came to the Constitutional Convention with 10 models for a republic which, by a system of "Tammany Hall" type ballots was reduced to one, the "bi-partisan model", but neither it nor any other model got anything like majority support. The final vote was 73 for, 57 against and 22 abstentained! There was violent and irreconcilable opposition between the "Direct Election model" and the "bi-partisan model", involving blubbering, and currently the "direct election" mob is campaigning against the "bi-partisan" mob for the referendum! The Bill continually gives the Constitutional Convention further authority which it does not possess. Explanation: Of the 156 Delegates 76 were elected by a General Postal Ballot in which less than half the electorate voted, and the other half were selected "Suharto fashion" by the Prime Minister. The Convention did not have the authority to "resolve that the referendum should be held in 1999 and, if the proposal for "change" (sic!), was approved, that the new republic should come into effect by 1 January 2001". Nor did the Convention have the authority to require the Commonwealth Government to force the States into compliance with the Convention's "preferred model". The Convention did not have a "preferred model". The "preferred model" only achieved "a majority of those voting", and nowhere near a majority of the Convention. The Explanatory Statement is couched in terms that are designed to deceive the electorate as to the real purpose of the Bill which is simply for a republican power grab, at the expense of our democracy. 2 COMMENCEMENT Commencement is mostly "on the day on which this Act receives royal assent". No Act of any Bill in Australia receives "royal assent" in this sense. The Queen of England and the British Crown have no authority to do anything in the Government of Australia. Any role that the Queen of England plays in Australia is as Queen of Australia at our request, and with her gracious agreement. Australia's Acts of Parliament are signed into "Australian Crown Law" by our Governor-General (G-G). SECTION 3 of the Bill pursues the removal of "the Monarchy" from the Constitution with a paranoid zeal which has blinded the republicans to the fact that "the monarchy" was effectively written out of our Constitution on 1 January 1901. The Constitution was so crafted that a wealth of Constitutional development has gone on without there being the need to amend the Constitution at all. The framers of this Bill are clearly ignorant of the Australian Constitutional framework today. EXPLANATION: Australia started as a British Colony, then became six British Colonies, then six sovereign, self-governing independent British Crown Colonies. These Crown Colonies had never paid taxes to Britain and they had their own elections, Parliaments, Premiers, and Governors. Initially the Governors were appointed and removed by the British Monarch on the advice of British Ministers, and governed under Royal Instructions from the British Monarch, but the benign hand of Britain has been withdrawn at a measured pace as the States gained proficiency in government. Now the Governors are appointed and removed by the British Monarch acting as Queen of Australia and their States, on the advice of the State Premiers. It was these sovereign Crown Colonies that came together in 1901 to create a new Federal Crown for the Commonwealth Government. At the same time the British Crown Colonies became Sovereign Australian States. Initially the British Monarch went on appointing and removing our Gs-G on the advice of British Ministers. Obviously neither country realised the finality of the separation at Federation! But once again the benign hand of Britain has been withdrawn at a measured pace, as we gained more proficiency in government. Initially our Gs-G operated on Royal Instructions from the British Monarch. Now our Gs-G are appointed and removed by the Queen of Australia on the advice of the Australian Prime Minister (PM), and the Royal Instructions have been revoked on the advice of the Australian Prime Minister. The situation now is that Australia is a completely sovereign independent nation with its own Crown, and a G-G appointed and removed by the Queen of Australia on the advice of our own democratically elected PM. The system is simple, cheap, swift, and a congenial reminder of our Constitutional development. Our system is far in advance of the system proposed in this Bill which is cumbersome, slow, expensive and dangerous to our democracy. Our Constitution can no longer be read as "Black Letter Law'. It requires interpretation in the light of:-
The Constitution contains Sections that are no longer active but these should not be removed because, in Constitutional matters it is just as important to know where you have been as it is to know where you are going. These Sections should be left in situ because they indicate the matters that were exercising the minds of the Founding Fathers at the time of Federation. The Founding Fathers were well aware of the dangers of a powerful Federal Executive and framed a Constitution which was to protect the States and the People from a powerful Executive, and allowed for an absent Sovereign, a High Court to interpret the Constitution and an appeal to the Privy Council. In the event the Federal Government has acted as a much more unfriendly foreign power than Britain. On top of this the High Court has been raining down hammer blows on the States' independence, as well as Australia's sovereignty, by permitting the Federal Government to clothe itself with powers expressly forbidden to it by the Constitution by abuse of the Treaty power. This is in spite of the fact that we the People have rejected Federal power grabs in 32 referenda! This problem arose without Constitutional amendment, and can be rectified without Constitutional amendment. All it requires is Parliamentary courage and the reinstatement of an appeal from the High Court to an Australian appeal body, and to make the High Court responsible to the Parliament for its expenditure. 6.8 OATHS AND AFFIRMATIONS The Act makes great play about the safety of having the Head of State swearing an Oath "to be loyal to Australia and its people, whose laws I will uphold". In the light of the feather weight the republicans obviously put on the Oaths they have already taken to "be faithful and bear true allegiance to Her Majesty Queen Elizabeth II" in her role as Queen of Australia, the new Oath gives us no cause for confidence at all. It is our Australian Crown itself that is the ultimate and untouchable guarantee of all our freedoms. This is why the republicans want to get rid of it. There are no royal prerogatives remaining with the G-G or the Commonwealth Government as claimed in Schedule 1 The British Crown is the symbol of government power and is kept in the Tower of London and worn by the Queen on State Occasions. The Australian Government does not yet have a symbol for our Crown, much less anybody to wear it, so we have requested the Queen of England to wear it for us as Queen of Australia. She has graciously accepted and never interferes with our sovereignty or government. It is a sign of the pride we can take in the role Great Britain has played in the development of Australia. Thus in reading our Constitution the Crown of Australia should be substituted for any references to the Queen of Great Britain. In the matter of tinkering with the roles of the President of the Senate and the new President of the Commonwealth there will be unintended consequences because of the complete absence of the protection of the Australian Crown. The role of the Crown cannot be played by a politician, because the Crown governs for all the People "without fear or favour, affection or goodwill". It is the Crown that is the head of all our great Departments of State, not a politician, as this Bill proposes. It is Crown Law that runs in the Country, not the laws of any executive of politicians. It is the Crown that appoints and removes and pays Ministers of State and Officers of the Public Service and Defence force. It is the Crown that owns all property, not the Commonwealth as this Bill proposes 85(1). The G-G acts on behalf of the Crown, and in giving assent to Bills he gives it on behalf of the Crown, our Crown, not on his own behalf. If that were the case it would spell danger for the People with a capital D, should a President be beholden to a rogue Executive - which can never happen with a Crown, but could easily happen if this Bill were implemented. The proposed Schedule 2 Section 126 represents a complete Federal takeover of the States, which is exactly what the People have been objecting to in referendum after referendum, but the High Court has been abetting by favouring the Commonwealth over the States in decision after decision. SCHEDULE 3: The Bill drafters continue their selective use of bogus recommendations such as those "supported by a majority of those voting". During the Transitional Period it is proposed in this Bill that the Parliament can pass laws which take effect immediately. This means that the Parliament may run wild without any protection for the People by the Crown which continues between governments. The Founding Fathers would faint. The republicans will tell us that this clause is not remarkable and is in many Bills - that may be so but they do not tell you that this is only so because of the presence of the Crown stopping governments running wild, and they want you to get rid of your Crown! Under 5 The States: The Bill drafters show their utter confusion on the role of the Crown. Our States are not under the "Monarch" of any country. The States have their own Crowns which are independent and sovereign. These Crowns are the symbol of their Government's power and, as they had nobody to wear them they requested the Queen of England wear the Crowns for them as Queen of Australia. This mirrors the Federal situation and has proved to be most congenial and safe from political roguery . Australia does not have a Monarch. We all have a Sovereign who reigns but does not rule over us. We are citizens of Australia and not "subjects of the Queen". We swear our Oaths of Allegiance to the Queen of Australia, not the Monarch of Great Britain. Contrary to Section 6 the UNITY OF THE FEDERAL SYSTEM is affected by this Bill. By pulling the Crown out our whole agreement "to unite in one indissoluble Federal Commonwealth under the Crown of Australia and this Constitution" is negated, and the Federation automatically split asunder. SECTION 59 - EXECUTIVE POWER Section 61 of the Constitution no longer vests the executive power of the Commonwealth in the Queen of England but in the Crown of Australia, and the power is exercised by the G-G. Because this Bill would remove the Constitution and the Crown it represents a revolution, not an amendment as claimed. Its terms snidely intimate that it only involves "minimalist change", whereas in reality it proposes a Federal power grab of monumental proportions. It vests the executive power of the Commonwealth in the President, a politician and not the Crown, and does not define the President's Reserve Powers. These Reserve Powers of the Crown cannot be defined because the People never know what sort of roguery the politicians, including the president, are going to get up to. The degree of roguery is now left to the assessment of the G-G, who is "governing on behalf of all the People without fear or favour, affection or ill will". If the G-G exercises his Reserve Powers the issue is immediately put to the people in a free and fair election. Surely nothing could be more democratic than a free and fair election. SECTION 62. The proposed method of removal of a president is cumbersome and in a crisis of political roguery would be inadequate because it puts the G-G at the mercy of the PM. As the instructions were to compare the proposed system "against the present system of government", the proposed system can not hold a candle to it, not only in this respect but in every other respect. Its extreme persistence in "the removal of monarchical references" in many places is an indication of its paranoia, because there is no longer any "monarchical" element in our government at all. The executive power of the Commonwealth is not vested in the Queen of England but in the Crown of Australia. The Bill provides that Constitutional conventions shall apply to the President so that he shall ONLY exercise his power in response to Ministerial advice, except for his Reserve Powers. Under the present system the G-G USUALLY follows Ministerial advice, but is actually his own man and does not have to follow any particular advice, and can take advice from whom ever he chooses, and either take it or not. This also applies with respect to the Reserve Powers and the G-G is responsible only to the PM and People. The present system surpasses this Bill in every respect. This bill would make the new President responsible to the PM and the Parliament while removing the people altogether. The Explanation falsely claims that "there is no generally agreed convention to control the exercise of the G-G's Reserve Powers" in the situation which "arose in 1975 when the G-G, Sir John Kerr, dismissed the PM Mr Whitlam after the Senate failed to pass the Supply Bill for his government". The fact is that Mr Whitlam was attempting to govern without money granted to him by the Parliament - a clear indication for his sacking, and he would not relent. Mr Whitlam was attempting to destroy the Senate's power to block Supply. He was well aware of the time bomb that starts ticking with the G-G when Supply is blocked to a government, and had attempted to do so many times in Opposition. To this end he had appointed a "strong Labor man" as G-G whom he considered would stand by him in a crisis. Obviously the G-G thought more of his Oath of Office than Mr Whitlam thought of his! Nevertheless Mr Whitlam has insisted on "maintaining the rage" and persisted with the myth that he was ambushed. I have related the story because it is the trigger that has led to this ill-conceived revolutionary Bill that will shatter our "indissoluble union'. There is no model of a republic in the world that can offer the Australian people anything like the freedom and democracy we already enjoy. This power grab has its genesis in envy, greed and hatred, and ivory-headed Irish rebelliousness. It should be cast into the garbage bin of history. Any "Preamble' should be rejected outright because it immediately presupposes a new Constitution. THE PREAMBLE The big danger with a Preamble is that the High Court will use its sentiments when it is interpreting the Constitution. Already the High Court is finding "implied rights" in the Constitution, and "enduring social values", and declaring well established laws void by ignoring established practice, as well as declaring other laws "repugnant fiction" when they were not fiction at all. Therefore it would be folly to give the High Court any further areas in which it could indulge its idiosyncrosies. At the Constitutional Convention republican crones wanted a preamble that would enthuse and excite them with patriotic fervour. They wanted a preamble of inspiring words expressed with poetic grandeur. There are probably no more inspiring words than those of the American Declaration of Independence... "We believe that all men are created equal and endowed with certain inalienable rights, and among these are life, liberty and the pursuit of happiness....." Things are not always as they seem. The men who wrote those undying words were slave owners, and obviously did not include blacks. Already the High Court has ignored the Constitution's protection of the States and the People, as well as the People's clear instruction in 32 rejected referenda that they do not want an increase in Federal Power over the States.
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