CHAPTER FIVE - ‘THE MOMENT IS UPON US’

CHAPTER FIVE
OUR AUSTRALIAN CONSTITUTION
‘THE MOMENT IS UPON US’
(Written in October 2008)
One Life, One Flag, One Fleet, One Throne.
A Nation for a Continent, and a Continent for a Nation

Being used to general elections in Australia, which always seem to border on the mundane, the almost year long US Presidential election campaign appears to us to be a cross between a jazzy carnival and a vicious dog fight. We may criticise their Nuremburg rally-like conventions, but, at the same time, we should all envy the fact that all Americans, young and old, have an enormous pride in being American and appear to have more than a casual understanding of their constitutional documents.

Indeed, most can quote extensively from the sayings of their Founding Fathers, unlike, regrettably, Australians who have so little knowledge of our constitution, of the joining together of our colonies into one nation or even of our rich colonial and post Federation heritage. Whereas most in this country, apart from certain communities, are deeply proud of being Australian, many of our political leaders seem to take a delight in publicly undermining our unique Australian identity.

It is as though successive governments over the past thirty five years and more have deliberately withheld the teaching of our history to school students so as to keep the population ignorant that Australia is a free and independent nation, sovereign in its own right and that its people have chosen to retain their system of Constitutional Monarchy under the Crown.

There is a wealth of sayings that every student and new Australian should properly be able to quote by heart, but few would be aware of Henry Parkes's¹⁵⁹ famous comment: Surely what the Americans have done by war, Australia can bring about in peace³⁸¹_, nor would most be able to quote from Edmund Barton¹⁷¹ when he said: For the first time in history, we have a nation for a Continent, and a Continent for a Nation.³⁸²  More than likely most Australians would not even know who Henry Parkes or Edmund Barton were!

MURMURINGS AGAINST THE CROWN

Even though the more recent murmurings against the Crown started in earnest around a dinner table in Adelaide in 1958 where Malcolm Muggeridge³²¹, in turn a Fabian, then a communist and then a Christian, ridiculed the fact that Australia remained a Constitutional Monarchy to which a young Rupert Murdoch²¹⁶, enthused with this seditious import, is rumoured to have retorted Well I think it’s ridiculous there’s not a republican movement here.⁷⁹⁴

It was, however, in 1972 that moves towards constitutional change began in earnest. It was in that year that Australia elected its first Labor government after twenty three years in opposition³⁸³ . The changes were so swift and so radical that they frightened so many that confidence was lost in the Whitlam Government which was eventually dismissed in 1975 ³⁸⁴ .

The ‘Dismissal’ set the foundation for the change in Labor attitudes towards the Crown, even though the then Governor-General, Sir John Kerr²⁹², himself a Labor man and a Labor appointee, did not use any reserve powers of the Crown, but those vested in him by Section 1 Para 5 of the Constitution which specifies:

The Governor-General may appoint such times for holding the sessions of the Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue the Parliament, and may in like manner dissolve the House of Representatives.

After parading for eight years as 1975 martyrs, Labor, returned to power between 1983 and 1996, made no attempt whatsoever, during their thirteen years of government, to amend the Constitution to remove that particular power of the Governor-General.

The ALP Annual Conference held in Hobart in 1991, voted to confirm its 1981 pro-republic policy which Prime Minister Keating²¹⁷ thereafter pursued aggressively, establishing, in 1993, a Republic Advisory Committee²⁵³ chaired by the current Leader of the Opposition Malcolm Turnbull³²⁸. The Australian Republican Movement drafted a model based on the recommendations of the Advisory Committee which was put to the people in a referendum in 1999. It left the power of dismissal unchanged, but, instead of being vested in the Governor-General, it was to be held by a president elected by a two-thirds majority of both Houses of Parliament. Following the massive defeat of the 1999 referendum¹⁷⁷, the very people responsible for selecting the model, falsely grumbled that Prime Minister Howard³⁸⁵ was to blame for putting the wrong model to the people, whereas, of course, it was their (the republicans) very own choice! However, grumbling about the ‘wrong model’ is not new. In 1901, people even grumbled that the federating Constitution was the ‘wrong model’. One wonders what will they grumble about when their next republican proposal is defeated?

In 2007, the people elected another Labor Government, which is potentially just as radical as that of the Whitlam administration, but without the Whitlamesque filibuster. In April of this year, on his way to call on the Queen, Prime Minister Rudd announced that he was a republican and he would work towards a republic over time. ³⁸⁶ 

On the day of Her Majesty’s birthday, April 21st, 2008, Mr Rudd candidly stated: We lost the last referendum 10 years ago, We don't want to lose the next one. So we'll be building this one up very carefully.³⁸⁷

In her speech to the National Press Club³⁸⁸ in Canberra on the 17^th September 2008, the Deputy Prime Minister, Julia Gillard,³⁸⁹ asserted that: in 2007 the Liberal Party invited the Australian people to forget 100 years of history and later in her comments: the values that give birth to a nation are the ones that endure. Strong words indeed, until one realises how hypocritical they appear against the determination of herself and her colleagues in the Labor Party as they seek to destroy both our one hundred years of constitutional history which has given us such unparalleled stability ‘under the Crown’ and as they work assiduously to demolish the British values of law and order which gave birth to our nation of Australia.

 

In September 2008, following the election of Malcolm Turnbull (former Chairman of the Republican Movement) to the leadership of the Liberal Party, the Prime Minister, Kevin Rudd, said: I also say to Mr Turnbull, I look forward to working with him on a bipartisan basis on as many national challenges as possible. One of those national challenges for the future of Australia will be our move towards a republic. Mr Rudd said he would: look forward to working with him on a timetable for introducing a republic and that: Mr Turnbull has long been a supporter of the republic, and we know for a fact that we are only going to achieve that sort of change in Australia on a bipartisan basis. ³⁹⁰ Fortunately Mr Turnbull did not take the bait, and responded that the republicans would never win a referendum as long as the Queen was alive. Former Treasurer, Peter Costello²²², an avowed republican, also said at the same time that the majority of Liberals were monarchist. It is, however, not only Liberals who may be monarchist; many of our members are themselves Labor voters.

Is there not something radically wrong with today’s political parties where elected politicians have a totally differing viewpoint from that of their members and voters?

The disloyal stance of so many Liberal politicians against the Crown depicts a vastly different attitude from those exhilarating times following Federation when the then Duke and Duchess of York, later to become King George V⁹⁸ and Queen Mary³⁶⁹, arrived in Australia to open the first Federal Parliament at Exhibition Hall³⁹¹ in Melbourne, and were greeted with banners proclaiming: One Life, One Flag, One Fleet, One Throne. 

This quotation was taken from the poem of Alfred, Lord Tennyson¹¹⁶, written at the request of The Prince of Wales for the opening of the Indian and Colonial Exhibition³⁹² by Queen Victoria⁶² in 1886.

Sharers of our glorious past,
Brothers, must we part at last?
Shall we not thro’ good and ill
Cleave to one another still?
Britain’s myriad voices call,
‘Sons, be welded each and all
Into one imperial whole,
One with Britain, heart and soul!
One life, one flag, one fleet, one throne!’
Britons, hold your own!

We face what I call a ‘silent campaign’, nourished on an almost total lack of knowledge of our Constitution and our Federation. The Government, having manipulated, through the stage-managed 2020 Summit, a pseudo mandate to expend monies on consultants and advisers is stealthily planning their operation with military precision, ready to pounce upon us when they are ready. Whatever they have planned will be exceedingly difficult for us, a voluntary, impecunious organisation, to oppose.

Since April, most monarchists have again been lulled into a sense of tranquillity, failing to realise that our Constitution is in great danger, but in great danger it is and we must stand up and fight, for we fight for our very democracy.

A democracy established in 1901 as our six Australian colonies were federated under a new Australian Constitution, based on the concept of a constitutional crown. A Crown and a Constitution which have protected our freedoms for over a century.

However, even though our Federation has existed for 107 years, the lack of civics education has meant that so many people are unaware of why Australia is a Federation and why we have eight State and Territory Governments as well as a federal, or commonwealth, government, and numerous local councils.

THE BEGINNING OF AUSTRALIA AS A NATION

For the answer we must look at the manner in which Australia was settled – socialists prefer to say conquered - by the British.

When Captain Cook³⁹⁴ planted the British Flag at Botany Bay and claimed the Eastern Coast of Australia for Great Britain, the British Government had little use for a land which was so difficult to get to and which had no apparent military advantage.

However, following the loss of the American colonies, the British also lost the facility of transporting its criminals to the Americas. Britain, and in particular, London was becoming grossly overcrowded with prisoners, many of whom were housed in the abandoned rotting remains of ships called ‘hulks’. There were so many convicts because, in those days, a person would receive a severe sentence for such minor offences as stealing a loaf of bread. There were no social services and if people had no money they would starve, hence many had little alternative but to steal to survive. The tragic stories told by Dickens³⁹⁵ of conditions in the 19th century only touched the surface of the suffering of the poor.

With these changed circumstances, Australia was therefore looked on in a new light and a decision was made to send a small convoy of eleven ships on the eight month, 14,000 mile journey to Botany Bay to establish a penal colony under the Governorship of the fifty year old Admiral, then Captain, Arthur Phillip²³², an English naval war veteran. Phillip’s flagship was the Sirius³⁹⁶, aptly named after the Southern Star.

759 passengers, including 191 women, survived the journey and, despite so many odds being against the survival of the first settlement, it did eventually succeed and set the foundation for the magnificent country that is the Australia of today. Over the ensuing 80 years, until 1868, 158,829 convicts were transported from the United Kingdom and Canada, considerably fewer than had been earlier transported to the American colonies.

Initially, British Australia comprised only New South Wales, which then covered the entire eastern coastline of Australia, including Van Diemen’s Land⁶⁸⁸. As the colony became more populated and developed, geographic areas either split off from New South Wales or, having been settled were declared to be separate colonies. First was Van Diemen’s Land, or Tasmania in 1825, and in 1829, Western Australia, which was never part of New South Wales. South Australia followed in 1834, Victoria in 1856 and Queensland in 1859. Responsible government came to each shortly after they became separate colonies.

When the colonies split off from New South Wales, it was decided that they would not report direct to Sydney as would normally have been the case were it not for the great distances between capital cities of each Colony. This arrangement encouraged the independent attitude of the States which led  perhaps to an over-extreme competitive rivalry. Each colony therefore established its own parliament with its own governor who was directly appointed by the Queen and who reported direct to the British Government in London. It was, therefore not surprising that each colony grew apart, jealously guarding its own independence.

This rivalry still exists to this day, albeit in a more moderate form. It is thus that Sydney-siders and Melbournians will trade ‘friendly’ insults, South Australians will refer to New South Welshmen as ‘wise men from the East’ which is not meant to be a compliment, and Western Australians still question whether they made the right decision in voting for Federation. However, whatever their Colony, Australians did have a distinct advantage. They were all British Subjects united under the British Monarchy.

Sir Samuel Griffith¹⁷⁰, a key figure in Federation and credited with being the predominant drafter of the Constitution, was adamant that a united Australia would be a sovereign and independent nation under the Crown, but without being subordinate in any way to the British Government. His vision was eventually realised after his death with the implementation of the 1932 Statute of Westminster¹⁰⁸.

Whilst the population was largely disinterested in the several conventions, they applauded the ideal of putting hostilities aside and becoming a brotherhood of Australians. Federation meant becoming a nation. As Giuseppe Mazzini¹⁸², the Italian politician and philosopher had written:

without a country you have no name, no identity, no voice, no rights, no membership in the brotherhood of nations.^182’

Even so, there were horrific difficulties in bringing together what had become six disparate mini-countries comprising around four million people, into one united nation. New South Wales had adopted a free trade policy and Victoria, a protectionist one and, due to its distance from the large Eastern States as well as its vast mineral wealth, Western Australia was quite happy in remaining separate, as was Queensland and, if it were not for the perceived threat of invasion by external German and/or Russian troops, it is possible that Federation may never have occurred.

However, after several conferences, which initially included New Zealand, the Governments of all Australian colonies agreed to join together and each held referendums which all endorsed Federation. New Zealand, deciding to go its own way, had dropped out at the early stages of negotiations.

Although participation in the various constitutional conventions²⁴⁷ of the 1890s was fairly minimal, the actual lead-up to Federation became a matter of great national pride. There is a wealth of poems written before and after which reflect the current moods of the people. James Brunton Stephens³⁹⁷, a Brisbane school principal, was one of the earliest and foremost poets to write about uniting into one nation.

His poem ‘The Dominion of Australia’ written in 1877 was quoted by Henry Parkes at the Tenterfield convention¹⁶⁵:

So flows beneath our good and ill
A viewless stream of Common Will,
A gathering force, a present might,
That from its silent depths of gloom
At Wisdom’s voice shall leap to light
And hide our barren feuds in bloom,
Till, all our sundering lines with love o ’ergrown,
Our bounds shall be the girdling seas alone.

Agreement to federate was, however, very much a hit and miss affair and was only reached when all six colonies agreed that the central parliament would have limited administrative and funding authority and that the predominant powers would remain with the States.

The resultant constitution was one clearly protecting the rights of the States, but with the proviso that the Commonwealth had overriding authority.

The loyal words of George Essex Evans³⁹⁹ in his ‘Ode for Commonwealth’ clearly show the patriotic intent of so many at the time:

We pledge thee (Australia) faith that shall not swerve,
Our land, our Lady breathing high
The thought that makes it love to serve
And life to die.

The resultant Constitution, which was enacted in the United Kingdom in 1900 and became valid in Australia from the 1^st January 1901, empowered the Commonwealth Parliament to legislate over thirty nine specific areas. These primarily include: banking, bankruptcy, citizenship, currency & coinage, defence, external affairs, immigration & emigration, industrial relations, insurance, marriage & divorce, overseas trade & commerce, pensions – aged & invalid and taxation. Certain of these powers, such as taxation, were originally shared with States and others, such as industrial relations, related only to issues crossing State borders.

Sir Samuel Griffith, then Premier of Queensland and later to be the first Chief Justice of Australia, said at the 1891 Convention : 

We must not lose sight of the essential condition that this is to be a Federation of States and not a single government of Australia.

He emphasised that

The separate States are to continue as autonomous bodies, surrendering only so much of their power as is necessary to the establishment of a general government to do for them collectively what they cannot do individually for themselves, and which they cannot do as a collective body for themselves ⁷⁴⁸ 

THE SHIFT OF POWER TO CANBERRA

However, it was not long after Federation that the Commonwealth Government began to look upon the States as intruding upon good government: good government, of course, being that which was based in Canberra. This attitude was, of course, totally apposite to the name ‘Commonwealth’, which was chosen after much deliberation because of its original meaning ‘common weal’ - ‘for the common good’. Some consider that the name has republican connotations, but protecting the ‘common good’ is the prime duty of the Crown. Individuals may complain that the Queen does nothing for them, but no one can deny that, because the Crown denies politicians the right to assume absolute power and authority, our system has remained free from the sort of political dictatorship we often see in other countries. Furthermore our governors often work behind the scenes to do their best to protect the people from the policies of an aggressive government, but they cannot easily go against the will of a constitutionally elected Parliament. The intent of Federation being a peaceable union under the Crown for the ‘common weal’ can be clearly seen in the writings and poems of the time. Published in 1901 was George Essex Evans’ ‘Ode for Commonwealth Day’:

Free-born of Nations, Virgin white,
Not won by blood nor ringed with steel,
Thy throne is on a loftier height,
Deep-rooted in the Commonweal!

The ‘peaceable union’ of the ‘common-weal’ quickly became a tussle for power. There were to be two main areas which would assist the Commonwealth in its power-grab: the first  taxation and the second the support it received from the  High Court.

The States entered into the Federation on the assumption that they would impart to the central government only those powers necessary for it to exist. However, as can be seen from the writing of Alfred Deakin¹⁶⁸, Australia’s second Prime Minister, that assumption was based on a false premise. Showing great foresight, Deakin was quoted in the London Morning Post⁷⁴⁹ in 1902:

As the power of the purse in Great Britain established by degrees the authority of the Commons, it will ultimately establish in Australia the authority of the Commonwealth. The rights of self-government of the States have been fondly supposed to be safeguarded by the Constitution. It left them legally free, but financially bound to the chariot wheels of the Central Government. Their need will be its opportunity. The less populous will first succumb; those smitten by drought or similar misfortune will follow; and finally even the greatest and most prosperous will, however reluctantly, be brought to heel. Our Constitution may remain unaltered, but a vital change will have taken place in the relations between the States and the Commonwealth. The Commonwealth will have acquired a general control over the States, while every extension of political power will be made by its means and go to increase its relative superiority.

At the beginning of Federation, the Commonwealth Government had little authority and the States carried on almost as before, including the right to tax their residents. Only excise and customs duties and bounties were passed onto the Commonwealth which, realistically, would never have provided sufficient revenues to fund a centralist power, but should have been more than sufficient to fund the original basic requirements of a federal co-ordinating government as originally envisaged by the Constitution.

Indeed, it was to protect the interests of the States, and in particular those of the smaller States that the Constitution ensured that, at least 75 per cent of revenue from customs and excise revenue should be passed back to the States during the first 10 years of Federation. However, three years prior to the expiry of this term, in 1908, the Federal Parliament legislated that any such surpluses should be paid into a trust account and thus avoiding having to pass them on to the States and in 1911 the Commonwealth terminated this arrangement and assuming full control of the subject revenues.

In 1915 the Labor Federal Government introduced an act for an income tax to be collected by the Commonwealth and by 1918 income tax amounted to one third of federal revenues⁴⁰⁰.

The 1930’s depression caused tremendous hardship throughout Australia and severely drained the resources of the States. In 1933, people in Western Australia campaigned to leave the Federation as, once having joined, they considered themselves to be worse off. A referendum was held by the State Government²⁵¹ in which 66.23% voted in favour of secession and a delegation was sent to London to petition for independence. However, the British authorities held that secession fell within the jurisdiction of the Australian parliaments and the matter was allowed to lapse.

The effects of the Depression meant that, in 1939, Australia entered the war with its services in a vastly depleted state. The Commonwealth Government had carriage of the War but was finding it increasingly difficult to fund war production.

This impasse eventually led to the States, in 1942, agreeing to pass their taxing powers, then comprising about 60 per cent of their tax base, onto the Commonwealth for the duration of the war. Whilst the main reason given was the desperate need to fund the war effort, particularly with the threat of invasion from Japan, it should also be admitted that the States were finding the administration of separate income tax schemes to be very complicated and extremely onerous. South Australia challenged the ensuing uniform taxation legislation, but the High Court ruled, in what is termed the First Uniform Tax Case⁴⁰¹, that it was a valid use of Commonwealth power.

Provision was made under Section 96 of the Constitution for the Commonwealth to grant financial assistance - from the several taxes and duties they were constitutionally authorised to collect - to any State on such terms and conditions as the Parliament thinks fit. The Commonwealth was therefore able to make use of this section to pass the bulk of income tax back to the States.

However, since this funding was to be on such terms and conditions as the (federal) Parliament thinks fit it was used to exert a greater control over State functions through tied grants and thereby undermining State independence and essentially making them into supplicant lobbyists rather than partners in a Federation. It is, perhaps, this strong-arm approach that has alienated State/Federal relations. Having said this, it must be remarked that the Council of Australian Governments (COAG⁸³⁸) do achieve a fair amount through negotiation, most of which is rarely reported in the media who seek only to sensationalise whatever differences there may be.

States still criticise the Commonwealth for not handing the taxing power back to the States following the War but, realistically speaking, would the States actually now want this responsibility, particularly following the introduction of the GST⁴⁰² in 1999, designed to replace many existing State taxes as well as the General Financial Assistance Grants scheme? The entirety of the GST is handed over to the States to administer as they wish which, in many ways, places the States in an enviable position, because any odium in raising the GST falls upon the Commonwealth government whilst the States are free to spend their share in any way they wish without having to account back to Canberra.

In a recent talk to the Menzies Research Centre⁴⁰³, the then Leader of the Opposition, Dr. Brendan Nelson⁴⁰⁴, spoke about: ‘The Future of our Federation and Governance’. He talked about the great change GST had brought to the economies of the States and that total State revenues from all sources has grown substantially – by 60% over a seven year period due predominantly to increases derived from the Federal Government, in the form of GST revenue and increases in specific purpose payments.

He also highlighted a major problem when he said: In our time in office, the Coalition Government’s wages bill increased by 12%. At the same time, the state Government’s wages bill increased by 95%.

Even though the GST has undoubtedly proven to be a bonanza for the States, they continue to build up debt and rely upon what can be termed questionable sources of revenue, such as taxes on gambling.

However, with federal handouts now accounting for almost half of State revenues they have no real choice but to accept federal funding under federal conditions. Canberra, itself, is not free of blame as far as iniquitous taxes are concerned, for it also raises billions through such levies as those on petrol. In fact, the Commonwealth now raises 82% of all taxes in Australia, but the time has long passed when one could honestly claim that Canberra is the sole culprit in the moves towards centralisation.

Admittedly, the Commonwealth continually encroaches upon the prerogative of the States particularly through its handling of commonwealth grants, but in many areas the States have been only too pleased to hand over troublesome areas to the federal government so that blame for their maladministration can be shifted to Canberra.

The comment of popular Victorian Premier, Sir Henry Bolte⁴⁰⁵ speaks, I think, for the attitude of all State governments over the past fifty years or more when he said: in 1972: As a State Premier I want the cash on the most favourable terms; but if the terms are not all that favourable, I still want the money⁸²⁰.

What must be done is to streamline current operations and above all for politicians to stop using every opportunity to use State and Federal taxpayer monies to push their party lines. For a Federation to progress, those who are elected to power must put the welfare of their citizens before the political agenda of their political parties. 

THE HIGH COURT ADOPTS CENTRALISM

The Commonwealth could never have maintained its stranglehold over the States without the support of rulings made in its favour by the High Court.

The Constitution made provision for the establishment of a High Court, which was established in 1903 as the Supreme Federal Court in Australia⁴⁰⁶. However, at the time, it was never thought that it would become so powerful in its authority over State supreme courts, nor that it would become the arbiter of final appeal in Australia. Although not specified in the Constitution, convention was that appeals could be made direct to the Privy Council in London from decisions of the High Court and from State courts. Appeals from High Court decisions were curtailed in 1968 and ended by federal legislation in 1975⁴⁰⁷, although the right of appeal remained from State courts, until the passage of the Australia Acts in 1986⁶⁸.

In the first two decades since Federation, the High Court was fairly supportive of State rights, but this changed in 1920 with what is popularly termed ‘the Engineers' case’⁴⁰⁸. This was an action taken by the Amalgamated Society of Engineers against the Adelaide Steamship Co Ltd. In its ruling, the High Court determined that the Commonwealth could override State powers in any area. This was a major erosion of state rights in favour of the Commonwealth.

The change from a ‘States rights’ court to a ‘centralist’ court possibly came about because by 1920 those original justices, such as Sir Samuel Griffith, who had been involved in the processes of Federation, had either retired or died and were replaced by younger judges who had differing perceptions of the make up of the Federation. Sir Samuel himself had died in 1920.

Thereafter the protection of the original constitutional rights of the States became a secondary factor to the authority of the Commonwealth. This is possibly because appointments are made by the Prime Minister of the day and not, as probably should have been, based on recommendations from the States.

Had the drafters of our Constitution ever considered that a future Parliament would abolish appeals to the Privy Council, they may have made a constitutional provision for a States’ representation on the High Court. Certainly at least two of the States would never have agreed to federate had they somehow been able to foresee decisions of the High Court over the ensuing century.

Fortunately, the States still have their own Courts where the judiciary is appointed by the individual State Governments and in this manner are able to somewhat impede processes towards centralisation.

I say ‘somewhat’ because, in spite of State law being administered by State courts, the Federal Government has established what may be termed quasi-judicial tribunals, such as the Federal Court, which, in some areas, circumvent the normal judicial processes. Tribunals, of course, do not reflect the time honoured independence of the judiciary as the basis of appointment of members is generally political.

The establishment of an adjunct High Court was first proposed by Sir Garfield Barwick⁴⁰⁹, former Liberal Minister and later Chief Justice, as he saw the need to lessen the burden of tedious work on the High Court. However, his brainchild took on a new form when the Fraser Government established the Federal Court in 1976.

The Constitution also provided a specific protection of the rights of the States within the Federal Parliament: the Senate, originally popularly known as the ‘State’s House’. It is for this reason that each State elects exactly the same number of Senators notwithstanding their individual populations and it was thought that, in this manner, the interests of the smaller States would be more effectively represented in the Parliament. However, it was not long before party politics ensured that senators obeyed the party line regardless of the interests of their State. Today, few people would be aware of who their senators are, for, in many ways, they are irrelevant to the State elector, many of whom vote for the complicated federal upper house ticket only because they are compulsorily required to do so.

CONSTITUTIONAL SHENANIGANS

It is stipulated in the Constitution that it, the Constitution, can only be amended by a referendum of the people and sets out the process in Section 128 under which such a referendum can be held. However, H V Evatt⁴¹⁰, Justice of the High Court and later Attorney- General in the Curtin²⁵² and Chifley¹⁴⁶ Administrations and author of the noted work published in 1936: ‘The King and His Dominion Governors’ wrote:

It is one of the paradoxes of the constitutional position evidenced by the Statute of Westminster that without the slightest reference of the issue to the people of the Dominion, the status of any of the Dominions may be formally surrendered by its Parliament (for the time being) requesting the necessary constitutional legislation from the Parliament of the United Kingdom.

Whilst it would be highly improbable that a Commonwealth Government would have pursued this method, it would have been even more unlikely that the British Parliament would have entertained any request to amend or remove the Constitution, without there having been firstly a referendum of the people.

In the 1999 Referendum, monarchists quoted quite frequently from the writings of Evatt to support their cause. However, Evatt was himself possibly more instrumental than any other person of his time in weakening the Constitution through his attempts to centralise power into Canberra.  In 1932, the Parliament of the United Kingdom had enacted the Statute of Westminster, which gave effect to deliberations of the 1926 and other Imperial Conferences²⁹³, basically recognising the independent nature of the  Dominions, which included Australia. The Federal Parliament did not adopt this Act until 1942. There are varying reasons given for proceeding with this adoption, one of which is that Evatt, at that time Attorney-General, was continuing to seek a greater concentration of power in Canberra. The Statute empowered the Australian Parliament to repeal or amend Acts of Parliament of the United Kingdom relating to Australia other than, as described in Section 8, to amend the Constitution or the Constitution Act⁶⁹ of which the Constitution is a schedule.

In 1942, Australia was well into the war and facing a dire threat from the Japanese. There was, therefore good reason for the Federal Government to insist on a greater and more arbitrary level of power than the existing Federal system allowed. The Curtin Government called together representatives from the States into a Constitutional Convention where all six States, together with the Federal Opposition, agreed to hand over a number of powers enabling Canberra to effect decisions without further reference to the States⁴¹¹. All six State Governments then proceeded to pass enabling legislation, but one member of the Tasmanian Upper House, the former South Australian test cricketer Joe Darling⁴¹², lobbied against the legislation and was successful in persuading sufficient of his colleagues to vote against the transfer of powers to Canberra, thus defeating the whole attempt. The Federal Opposition also then opposed any transfer of powers away from the States.

It is interesting to note that ten years earlier, in 1931, the Scullin²⁹⁶ Government had introduced constitutional referendum bills aimed to provide for direct power to the Commonwealth to legislate on all industrial matters, on all trade and commerce issues and to allow Parliament to amend the constitution by an absolute majority in both Houses. They were defeated in the Senate⁸²¹.

The Curtin Government, and particularly Evatt, did not take their own defeat lying down and held a referendum in 1944, called ‘the Constitution Alteration (Post-war Reconstruction) Bill’⁷⁵⁰, the purpose of which was to transfer from the States fourteen of their powers to the Commonwealth for a period of five years.

The referendum was defeated nationally as well as in four of the six States and the issue of a formal transfer of power to Canberra was never again raised. Whilst the 1999 (republic) Referendum was defeated by a much higher nationwide ‘NO’ vote as well as a ‘NO’ vote in all of the six States, politicians, however, continue to push the very divisive issue of a republic.

A major constitutional change, without a referendum took place in 1986, when the Federal and State Parliaments passed the Australia Acts legislation, a prime purpose of which was to free the States of any residual authority which continued to reside in the UK Parliament, even though that authority had not been and would never be exercised. The Acts also removed the process of appeals from State courts to the Privy Council. Section 7 of the Act recognises the States as separate constitutional monarchies and stipulates that Her Majesty's representative in each State shall be the Governor who shall exercise all powers and functions of Her Majesty in respect of a State⁴¹³.

A by-product of the Acts was to empower the Commonwealth Parliament, at the request of the six States, to repeal Section 8 of the Statute of Westminster which prohibits the amending of the Constitution and the Constitution Act⁴¹⁴. It is therefore considered to be legally possible for a Federal Government to circumvent the constitutional requirement to hold a referendum and, provided it has the backing of all six State Parliaments, to itself amend or repeal the Constitution without seeking the approval of the people. The election of one or more Liberal or Coalition governments will break the current ‘wall to wall’ Labor governments, but no comfort can be taken from this as many State Liberal and National politicians are republicans.

To effect change to our Constitutional Monarchy without a referendum of the people, even if legally possible, would be morally wrong.

However, our main safeguard is that the people relish the authority that Section 128 of the Constitution – the referendum process – empowers them, and they would not easily forgive any attempt by a government to infringe that power.

Perhaps the most dominant area of control by Canberra over the States is the External Affairs Powers, originally sponsored by H V Evatt. Ostensibly, these powers were to facilitate the Federal Government’s entering into international agreements and treaties but have been and are more frequently being used to exert a Commonwealth influence over the States.

This legislation is perhaps, the most insidious ever to have passed through the Federal Parliament as was found, in 1983, when it was used in Tasmania to prevent the State Government from building a major Dam.

The Labor Party had that year won power federally and having earlier made a commitment to stop the dam from being constructed and legislated to bring into force in Australia the World Heritage Properties Conservation Act overriding State legislation to prevent the dam from being built.

An appeal to the High Court by the Tasmanian State Government resulted in a far-reaching decision that, using the external powers, the Federal Government can enforce any international treaty over existing or future State law⁴¹⁵. This authority has given rise to an unparalleled arrogance amongst federal governments: that they, and not the people, are the source of power.

Even though the Australian Constitution was influenced by the constitutions of the USA, Canada and Switzerland, and despite the similarity in that they are all Federations, our system of government under our own Constitution is uniquely different, even from Canada, which is also a Constitutional Monarchy.

When, in March and April of this year, Prime Minister Rudd raised the issue of constitutional change, there was a flurry of media speculation about a republic. It was a time when monarchists became more than a little concerned. However, having made it clear that the Prime Minister and his government are republicans and that his intention is to introduce a constitutional change, but not immediately, the issue of the republic versus the Monarchy has gone somewhat silent.

Indeed, even the Queen’s Official Birthday holiday in June (2008) went without the normal rather rabid attacks on our monarchical system, and the appointment of Australia’s first female Governor-General⁴¹⁶ evoked only a few spurious comments. It would also be fair to say that most monarchists now believe that nothing will happen in the near future. However, any student of politics would well be able to see that Kevin Rudd has charted a future for an Australian republic with the machinery of government working on strategy and the most effective manner of hoodwinking the people into accepting their proposals.

SOFTLY, SOFTLY CATCH OUT THE CONSTITUTION!

The Government has many issues on its plate – some would say too many – and is becoming bogged down on matters such as the environment and carbon emission tax, whilst the Prime Minister travels the world to grandstand on international affairs.

However, around the time of the 2020 summit, there were four main issues raised which would – or could - require constitutional change. Whether all are taken together or individually will be a tactical decision taken by the Government at the time. These four issues are:

# A republic
# Recognition of the aboriginal people as the ‘First Nation’
# A Bill of Rights
# The Federation

Three of the above would involve extensive alteration to the Constitution. The other, ‘Recognition’, could mean a simple paragraph or, as has been proposed by the Coalition, an amendment to the existing Preamble. I would urge that the League argues against any amendment to the Preamble as I believe it could have the effect of purging the intent of the Founding Fathers.

The Preamble sets out the meaning of that which follows. It establishes Australia as a nation founded on Christian principles; it explains that six colonies are joining together in a Federation and that the new nation will be under the Crown.

If a plebiscite question to incorporate ‘Recognition’ into the Preamble is successful, it is highly likely that the Government would also proceed to remove the opening words Humbly relying upon the blessing of Almighty God, as being discriminatory against aborigines, atheists and other Australians, such as Muslims, who are not Christians. Having done that, do you think they will stop at established under the Crown of the United Kingdom, and so on until they have completely diluted, even destroyed, the integrity of the Preamble and as a consequence the Constitution itself?

In 1967, a referendum was held to remove the provision excluding Commonwealth oversight over aboriginal peoples and was won⁴¹⁷.

The Australian Constitution, reflecting the attitudes of the Australian people, is totally above discrimination and does not place any race or religion or religious denomination above another.

A Recognition of the aboriginal people as the First Nation is undoubtedly something that will engender majority support. However, great care would need to be taken over the way in which the Constitution is amended and in particular the wording of such amendment to ensure that it is not discriminatory toward those who are not of aboriginal descent.

A recent poll on carbon emission tax revealed a majority support for the tax, but at the same time those questioned indicated that they could not really understand what it meant. Similarly, a Bill of Rights would most likely also receive support from the public, but most would know little about the implications of such a Bill.

Proposals for a Bill of Rights are not new. Former Prime Minister, Sir Robert Menzies³⁰⁰, Australia’s last Statesman, had written about the absence of a Bill in his book ‘Central Power in the Australian Commonwealth’, published in 1967. (I have a copy signed by Sir Robert. As many will be aware, his widow, Dame Pattie²²⁶ was our first Patron.)

In fact, a student of Sir Robert’s writings, will generally find answers to most problems that beset us, even thirty years after his passing.

One such instance that comes to mind is when he wrote about a republic in 1970:

I merely say that until the so-called republicans make clear to the rest of us what kind of republic and what system of government they aim at, we can, I think, ignore them.

This was written two years prior to the Whitlam revolution and today, 38 years later, republicans have still to tell us what sort of republic they want - but unfortunately this time we are unable to ignore them.

In respect to a Bill of Rights, Sir Robert said:

I am glad that the draftsmen of the Australian Constitution, though they gave close and learned study to the American Constitution and its amendments made little or no attempt to define individual liberties. They knew that, with legal definition, words can become more important than ideas. They knew that to define human rights is either to limit them – for in the long run words must be given some meaning – or to express them so broadly that the discipline which is inherent in all government and ordered society becomes impossible.

As I understand it, the Australian draftsmen had good reasons for not following the American model...

In short, responsible government in a democracy is regarded by us as the ultimate guarantee of justice and individual rights. Except for our inheritance of British institutions and the principles of the Common Law, we have not felt the need of formality and definition.

I would say, without hesitation, that the rights of individuals in Australia are as adequately protected as they are in any other country in the world.⁷⁵¹

In 2004, the Australian Capital Territory enacted its own pseudo Bill of Rights with its ‘Human Rights Act’⁴¹⁸ and in 2006 Victoria legislated for a ‘Charter of Human Rights and Responsibilities Act’⁴¹⁹.

It will take time before the consequences of these Acts can be properly evaluated and further arguments for and against are for another time, but do we want to impose the values of today on the future, which is what a Bill of Rights will do? How will those who will draft such a Bill be chosen? Would not the politically correct inflict their own prejudices on the population as a whole as is the case with today’s opinionated media?

Should a Bill of Rights be entrenched into the Constitution, it will be virtually impossible to amend it to accommodate future trends and will tie future generations and future governments to the ‘politically correct’ thinking of the minority activists of today.

A Bill of Rights, however, that is merely an Act of the Parliament will in itself have no constancy as under the Westminster system, no one Parliament can bind another. There is also thought that Federal legislation to impose a Bill of Rights over the States could well be deemed unconstitutional.

The issue of a republic will be more difficult to win approval than ‘Recognition’ and ‘Rights’. A referendum has already been lost on this issue and whichever course the Government opts to take – either an appointed or elected President - will divide republican support.

Additionally, more and more young people are indicating that they do not want to change to a republic. They recognise that our existing system of governance under the Crown has ensured political and thus economic stability in Australia

Many republicans, pre-eminent amongst which is the new Leader of the Liberal Party, Malcolm Turnbull, propose waiting until the Queen dies before making their move, but with Her Majesty in good health and with polls showing a move away from a republic, it is unlikely that they will wait too long, particularly if popular support for the Rudd Government goes into a decline. It is also not a foregone conclusion that the people, and especially the younger generations, will not accept Prince Charles as King, particularly given the popularity of Prince William. who will then be the heir apparent.

It is of concern that a core support for a republic comes from those who hate anything British. Professor John Hirst, author of ‘A Republican Manifesto’ in his Paper ‘Federation: Destiny and Identity’ admitted that:

the republicans were trying to run a hard line on nationalism—if you are an Australian nationalist, you must have nothing to do with Britain, even this minuscule connection with the Crown is an infringement on that full independence which usually goes with nationalism. That’s what I believe  myself. ⁷⁵²

This was the academic appointed by Prime Minister Howard to chair his civics and citizenship education programme, ‘Discovering Democracy’, which operates in Australian schools.

How dare these people suggest that any of us, who believe in democracy ‘under the Crown’ are anything but Australians.

We use the Queen, as Queen of Australia as a Trustee of our Constitution to guard us against the machinations of those who would usurp our democracy.

How dare these people even suggest that our Founding Fathers and great Australians, such as Sir Robert Menzies, were not Australian patriots. It seems as though this core element of hatred would accept any constitutional model, provided the Monarchy and every symbol of stability that goes with the Crown are eliminated.

Rather than attempt to destroy a constitutional system which is proven beyond doubt, perhaps they should go and live in a non-English speaking, non-Commonwealth country - and see how they like living under a regime in which British law, British culture and the British Westminster system are totally absent!

It seems that these insurgents and their colleagues are proposing a plebiscite question on a republic or, more probably a deceptively worded one on the confusing issue of ‘head of state’, be put to the people at the same time as the next Federal election which is due in 2010, but may be held before then.

It is expected that there will be other questions on a range of issues all purposefully designed to divide whatever voluntary opposition there is to a republic. Some politicians are already hinting that the Government may go to a double dissolution, which may mean that perhaps the next election could be sooner than 2010, but whether they will face the people in the current economic circumstances, is questionable.

I have written extensively about the history of plebiscites in Australia. Put simply, a plebiscite is a poll-type question which has no constitutional relevance. However, a government may use plebiscites to determine the mood of the people. The question raised by a plebiscite can be manipulated to produce the maximum response desired.

At no time has a plebiscite been used preparatory to a referendum. It can be said that, as the Constitution itself sets out a process for change, to present a seemingly simple, but manipulative, plebiscite question instead is fundamentally against the spirit of the Constitution. However, when we see the High Court constantly ignoring the ’spirit’ of the drafters of our Constitution, how can one expect mere politicians to uphold convention.

The plebiscite, or plebiscites, will be held on a national, not a national/state, basis (as are referendums), and may or may not be compulsory. To pass would only require a simple majority of 50% +1. It is likely that there will be no funding for the ‘NO’ case. The Labor Government, however, will expend millions on promoting their ‘YES’ case and monarchists will clearly find themselves in more than an ‘underdog’ position for the Government will determine every stage of the process. 

The disturbing factor is that, should the Government win a plebiscite question on a republic, however innocuous and ambiguous that question may be, it will argue – with the full support of the media - that it has been given an absolute mandate by the Australian people to introduce a republic.

They may then continue in one of the following ways:

• Proceed to a referendum, as in 1999.
• Amend the Referendum Act to allow only alternatives on a republic, but no ‘NO’ vote.
• If the Federal government is able to receive the support of all six States, they may then use the Australia Acts to amend the Constitution Act 1900 of which the Constitution is a schedule, without proceeding to a referendum.

This process could only work when based upon a lack of knowledge of our Federation and our Constitution: of the writings of those eminent statesmen and jurists who have gone before, of which the majority of the people are totally and absolutely ignorant.

Sir Owen Dixon⁴²⁰, the sixth Chief Justice of Australia - some say Australia’s most pre-eminent jurist - had outlined the importance of the States in ensuring the distribution of power in his judgment on a banking case in 1947, in which he held against the Commonwealth Government which was endeavouring to force the State Governments to use the Commonwealth Bank.

In his judgment Sir Owen stipulated that:

The foundation of the Constitution is the conception of a central government and a number of State governments separately organized. The Constitution predicates their continued existence as independent entities. Among them it distributes powers of governing the country. He also stated: The considerations upon which the States' title to protection from Commonwealth control depends arise not from the character of the powers retained by the States [that is, the old reserve powers doctrine] but from their position as separate governments in the system exercising independent functions⁴²¹.

It is unfortunate that, over the past one hundred years, this concept of: State governments separately organized has all but disappeared from the perception Australians have of our national identity. Since the times of Federation, people have become Australians rather than Victorians or Tasmanians. The States engender little loyalty in their own right and I think it would be fair to say that Australians would be more loyal to their towns and cities rather than to their States. Amongst younger generations there is an almost fanatical nationalism encompassing all things Australian which far surpasses any allegiance to a State.

Even though groups in Queensland and Western Australia may talk about secession, there is no likelihood that it will ever occur, however aggressively centralist a federal government may become.

Surveys have proven that less than 20% of the population have some knowledge of our Federal Constitution, but it would be surprising if more than 1% had any knowledge of their State constitutions. Admittedly, the State Constitutions are anything but uniform and people in one State find it difficult to understand why some laws and regulations differ once a border is crossed. This lack of knowledge amongst the population as a whole, combined with a nation-wide apathy, will facilitate politicians’ camouflaging their real intentions to bring about a republic through whatever means they can.

Politicians, and more particularly their professional advisers, would realise that whatever republican model is eventually chosen, whether by means of plebiscites or by a convention, will evoke bitter divisions amongst republicans themselves, let alone amongst the electorate in general. Furthermore, as in 1999, the majority of the people are resistant to a direct change to a republic and it is possible that we could face moves, not negatively against the Crown, but positively, in a deceptive sense, to ‘fix the Federation’.

WEAKEN THE FEDERATION/WEAKEN THE CONSTITUTION

The Prime Minister, Kevin Rudd, gave an indication of these plans when, in October 2007, he said to a business group: Today I want to talk about reforming the dysfunctional nature of the Australian Federation. I want to talk about fixing the Federation as one of the major remaining frontiers of microeconomic reform.⁴²² No one commented at the time that, eighteen years earlier, Prime Minister Hawke had, in 1990, launched a new Federation initiative aimed at ‘achieving microeconomic reform’.

Earlier this year, Joel Fitzgibbon⁴²³, Minister for Defence in the Rudd Government, a republican obviously uninfluenced by Dixon or any of Australia’s outstanding jurists, argued strongly against the continuation of Federation and in favour of the creation of a centralist government. He was speaking at the Edmund Barton lecture⁴²⁴ held at Newcastle University in which he asserted that: ‘Federation was a botched affair’ and that it snuck up on most Australians - but he conveniently forgets that the creation of Australia as a nation was possible only because the six separate colonies came together. As Sir John Quick⁴²⁵, later to co-author with Sir Robert Garran²⁷⁹, the authoritative constitutional legal tome ‘The Annotated Constitution of the Australian Commonwealth²³²’, wrote in 1898 that: federation will transform a number of small states into a great nation.

Fitzgibbon stated that Australia was the most over-governed nation in the world, with 14 houses of parliament for 22 million people. As a Federal cabinet minister he should be aware that we have 13, not 14, Houses in total as Queensland has no upper house. Indeed, far from being over-governed with its Federal, State and Territory governments plus 564 Local councils, Australia’s governance is minimal compared to Canada’s ten Provinces and two Territory governments and 3160 local councils. France, a unitary government, with a population just three times that of Australia, has 22 regions, 96 departments and a whopping 37,679 local governments. We can only hope that the minister is more proficient in his calculations when dealing with matters of defence than he has obviously been in regard to Australia’s governance.

Moreover, Fitzgibbon blames Federation for ''the duplication, the inefficiencies, the buck-passing and blame-shifting cost(ing) our economy billions. This is, admittedly, a common argument against the States, but would centralisation actually reduce duplication and dramatically save on costs, or would it lead to a greater number of paid politicians backed by a bloated bureaucracy? Canberra’s record of efficient administration is itself not too high.

Over recent years we have seen embarrassing bungles in Canberra’s dealings on such issues as immigration detention and monopolies such as Telstra and the ineffectual and corrupt Australian Wheat Board.

Besides, whatever duplication there is, it is not perhaps as extensive as forecast, particularly as current State departments would still be needed, albeit under a differing nomenclature.

If Mr Fitzgibbon wishes a more efficient outcome, why does his government not use State facilities whenever possible, rather than establish separate, duplicate, structures? The minister should be aware that the actual problem lies not with a duplication of activities within our federal system, but with the maladministration of our politicians.

Whilst having States within a Federation cannot guarantee our democracy; acting as checks each upon the other does help to protect our freedoms. No one could have put this point clearer than Sir Robert Menzies when he wrote:

Now, I am a federalist myself. I believe, as I am sure many of you do, that in the division of power, in the demarcation of powers between a central government and the State governments, there resides one of the true protections of individual freedom.⁷⁵¹

Centralisation will lead to the fragmentation of the States and the loss, as Sir Owen wrote, of one of the true protections of individual freedom.  We would also lose the more personal contact State Governments have with the people, which is far closer than a central administration could ever be.

Because the Commonwealth must, under our federal structure, consult with the States before implementing matters of major, or even minor, reform, Australia has a proven record of moderate legislation as opposed to many unitary states which continually introduce radical laws that often have a devastating effect.

I would suspect that the new Leader of the Liberal Opposition, Malcolm Turnbull, is more a centralist than a federalist. His colleague, former Minister of Health, Tony Abbott⁴²⁶, even proposed, in July 2008, that a referendum should be held to empower the Commonwealth to take whatever powers it wishes to from the States⁴²⁷! In their attempt to jump onto the ‘fix the Federation’ bandwagon, monarchist politicians could easily fall into a republican trap.

With so much emphasis on the Commonwealth, people forget that each State within the Federation remains sovereign under the Crown; each with its own parliament and Governors nominated by the State Premier. Dismembering a sovereign State will not be easy, unless it is done from within.

Former NSW State Treasurer, Michael Costa,⁴²⁸ has become the latest in a large number of senior State Labor politicians and premiers to call for the States to be abolished. Were they, themselves, not so deeply enmeshed in machine driven ideological politics and backstabbing, they more than others should realise the benefits of a decentralised system designed to provide greater diversity of activities and, above all, a greater access to government by the people. However, perhaps they have a more sinister agenda in mind?

Politicians continually highlight the disadvantages of a federal system but rarely touch upon the advantages, possibly because the system favours the needs of the individual and, moreover, requires a close scrutiny to be kept continuously over all ministerial and government activities. Perhaps this highlights a disadvantage of a federal system in that the population is made to suffer from a surfeit of politicians?

Modern communications and transportation have made invalid the original reasons for the splitting of New South Wales into another four colonies. However, each State continues to be unique in its geography, its climate, its cultures and its demography, which in themselves require the sort of parochial attention provided by the existing State governments.

Prior to the establishment of the separate State of Victoria in 1857, Port Phillip was an electoral district of New South Wales. To make their point for self government, they elected the British Colonial Secretary, Earl Grey¹⁶³, without his knowledge, as their representative on the NSW Legislative Council, holding that he, in London, would be as competent to understand the requirements of the Port Phillip area as anyone based in Sydney would be. One could not, I suppose, blame the Melbournians when they would receive postal packets addressed to ‘Melbourne, near Sydney’.

In their dealings with the Northern Territory, the centralised, and obviously sedentary, bureaucracy in the ACT has continually failed to appreciate the climatic and sociological differences between Canberra and Darwin. For instance, when building the Royal Darwin Hospi-tal in the 1970s, the Commonwealth Government used the same plans they had earlier drawn up for the Woden Hospital in the ACT and the resultant hospital in Darwin could easily handle the cold Canberra climate, but was totally unsuitable for the tropical heat of the Northern Territory! It is therefore clearly beyond the capabilities of a centralised power to tailor policies to ensure that they meet the needs and the requirements of the communities they are supposed to serve.

Our Federation has eight capital cities, each being a centre for government, education, economics and culture whereas in unitary nations, such as France, these facilities are concentrated into one capital city, thus distancing citizens in outlying areas from government access.

Multinational businesses are generally supportive of the removal of the States, for the reason that it would be far easier for them to deal with and, perhaps, influence, one centralised government rather than six separate State administrations. However, the diversity of a federal system promotes both healthy competition and a greater initiative. It is also a barrier against the sort of complacent bureaucracy one finds in a stagnant monopoly. Healthy competition has been evidenced on many occasions when different states have vied for the same industry or tourist activity. The individual States are able to mould their regulations to assist in increasing jobs and provide incentives to encourage people to settle in their respective state. Under a centralised government, healthy competition would be either dumbed down or even eliminated and made subject to bureaucrats and a minister based in Canberra who would be more easily influenced by pressure from major party donors. Under our current system, there is a greater check by media and individuals on any abuse of authority.

Migration between States is not always due to the reason of escaping to a warmer climate. Many move due to their employment and, as has been the case in New South Wales, to escape the burden of heavy State land taxes.

At a time when devolution of government is seen as the more ideal, with 40% of the world’s population governed under one or another federal system and when four of the eight G8 nations are Federations,⁴²⁹ is it not strange that political elements in Australia are promoting an overly powerful unitary government? Particularly when such governments have been proven in recent times to be unwieldy, uneconomic and autocratic? The American academic Daniel J. Elazar⁴³⁰, Professor of Political Science at Temple University in Philadelphia, has written: Federalism has emerged as a major means of accommodating the spreading desire of people to preserve or revive the advantages of small societies with the necessity for larger combinations arising from globalisation.⁷⁵³

To abolish the States, and centralise all power and authority into the one Parliament in Canberra, would not only eliminate rivalry, but would also remove innovation, diversity and competition: (in themselves a major ‘check and balance’ within our current governance) inbred over the years into the Australian psyche.

The British jurist, Viscount Bryce⁴³¹, writing on the American Federation said:

A nation so divided is like a ship built with water-tight compartments. When a leak is sprung in one compartment, the cargo stowed there may be damaged, but the other compartments remain dry and keep the ship afloat.

So if social discord or an economic crisis has produced disorders or foolish legislation in one member of the Federal body, the mischief may stop at the State frontier instead of spreading through and tainting the nation at large. ⁷⁵⁴

He has separately described the forces operating within a Westminster style Federation as: ‘the centripetal and the centrifugal’ so called after the two main forces existing in our solar system. In his words:

One force draws the planets towards the sun as the centre of the system, the other disposes them to fly off from it into space. So in politics ... A political Constitution or frame of government, as the complex totality of laws embodying the principles and rules whereby the community is organized, governed, and held together, is exposed to the action of both these forces. The centripetal forces strengthens it, by inducing men (or groups of men) to maintain, and even to tighten, the bonds by which the members of the community are gathered into one organized body. The centrifugal assails it, by dragging men (or groups) apart, so that the bonds of connexion are strained, and possibly at last loosened or broken. . . Accordingly, the history of every community and every constitution may be regarded as a struggle between the action of these two forces, that which draws together and that which pushes apart, that which unites and that which dissevers.⁷⁵⁵

A Federation, as in Australia, can therefore be seen to be united (centripetal) as well as divided (centrifugal) and it is these two forces which ensure vital checks and balances, each on the other.

THE ALMOST ABSOLUTE POWER OF THE PARLIAMENT

Many people, when confronted with what seems to be unconstitutional legislation, such as Commonwealth attempts to override the Courts, feel that the Queen (or, as is the case in Australia, the Governor-General or a Governor) should refuse Assent. However, they fail to appreciate that our constitutional arrangements have evolved (some would say devolved) into an almost absolute parliamentary control. It should not be forgotten that the last time a King directly opposed a Parliament was James II in the 17th century. He was forthwith deposed.

Those who are hostile to legislation enacted by a parliament, often criticise the Queen when Assent is given stating that Her Majesty has betrayed her Coronation Oath. The reality is, that in the first instance, it is not the Queen in the UK who gives Assent but the Lords Commissioners in her name and, of course, in Australia it is the Governor-General or, in the case of States, the Governors. Furthermore the Oath taken by the Queen, which Her Majesty holds to be binding for the rest of her life, was to govern according to the respective laws and customs. Several questions were asked of the Queen at her coronation including that of:

Will you solemnly promise and swear to govern the Peoples of the United Kingdom of Great Britain and Northern Ireland, Canada, Australia, New Zealand, the Union of South Africa, Pakistan and Ceylon, and of your Possessions and other Territories to any of them belonging or pertaining, according to their respective laws and customs? to which the Queen answered: I solemnly promise so to do.³⁵⁰

When the people elect a parliament, that parliament speaks with the will of the people and the Queen and her governors must obey that will. It is unfortunate that, whilst the Oath remains binding on Her Majesty from the time it was taken fifty four years ago, politicians continually change the rules governing their own responsibilities.

If there is concern that a bill is unconstitutional then the process is to challenge it in the High Court. However, as well as being prohibitively expensive, it can, I think, be fairly said that that court is pro-Commonwealth - and could well now be pro-republican!

It was during the last century that the constitutional position of the Monarch was defined by the convention established in the 1860s by Walter Bagehot¹²¹: The Sovereign has, under a Constitutional Monarchy such as ours, three rights: the right to be consulted, the right to encourage and the right to warn.⁷⁵⁸  It is unfortunate that these considerations are viewed as more of a nuisance than a duty by today’s political leaders.

This prison-like stranglehold that Westminster parliaments now have over the Queen and the Governors-General and Governors can be broken only by the people. However, the majority, by not understanding the importance of the check provided by the Crown on our system of governance, will always side with the parliament. In his book ‘The Costello Memoirs’⁴³² released in 2008, Peter Costello²²² has confirmed my earlier criticism of the way in which former Prime Minister Howard usurped the duties of the Governor-General, thus empowering his own position.

REGIONALISATION

Given the reluctance of the electorate to approve referendums, particularly those which would implement radical change such as creating a republic or abolishing the States, it is unlikely that a government would proceed along those lines. It would be a sheer act of desperation to bypass Section 128, the referendum process, and use the Australia Acts to force change on a reluctant population, however apathetic it may be.

Any government which followed this pathway would undoubtedly be subjected to a High Court challenge, although given their recent rulings there is potentially little comfort there.

In the 2006 challenge by the State of NSW against the Commonwealth Work Choices legislation, the High Court ruling in favour of the Commonwealth had the effect of substantially expanding Commonwealth powers, despite the people having rejected similar attempts to usurp State powers in no less than four separate referendums⁴³³! It could realistically be said that the High Court in its ruling actually went against the will of the people, albeit that that particular will was last expressed at the referendum held in 1946⁴³⁴.

This ruling, described by recently retired Justice Callinan⁴³⁵ as having far-reaching consequences for the future integrity of the Federation and the existence and powers of the States⁷⁵⁶, now makes it easier for the Commonwealth to enact overriding legislation to render the States impotent. It is because of the almost-absolute power now wielded by parliament that it will tend to implement its policies regardless of the constitutional vandalism they may cause.

This power is possible only because of the indifference of the people and their ignorance of the way in which our constitutional arrangements work. However, politicians are now raising the frightening prospect of establishing larger council authorities through amalgamation into semi-regions, In a betrayal of the trust placed in them by the electorate, the State Labor governments seem to be complicit in this as, given their ascendancy and that of left wing unions over local councils, they correctly believe that they will be able to dominate regional government and, what may be termed the ‘balkanization’ of Australian politics, will undoubtedly destabilise the Liberal and National Parties and somewhat disenfranchise the Labor Right.

Splitting Australia up in a multitude of regions - some propose as many as fifty - would mean that there would be an enormous shift in power from the status quo without any idea how this would affect governance throughout Australia. Each region would also seek a greater level of funding to provide facilities, not solely to benefit their areas, but also for the ulterior motive of seeking votes for re-election.

To replace existing councils by Regional government established to assume duties carried out by State governments would make unrealistic an expectation for Representatives to serve on a voluntary basis. Regional governments would therefore mean highly paid Representatives who would also require a political staff plus a bloated bureaucracy.

Furthermore, the expectation that these semi-states will be closer to the people is ridiculous. They may be more parochial, but, as with councillors, will have little contact or knowledge of areas outside their own districts.

The emasculation of the States will be contrived so cleverly with the connivance of the media and even, unfortunately, with the witting or unwitting support of some pro-constitutionalist and supposed federalist organisations, that most people will be unaware of what has happened. Recent comments by Liberal politicians, including monarchists, have indicated that many of them will applaud the diminishing of state authority - without realising that in so doing they are applauding the diminishing of our democracy.

It is probable that there will be no place in the new structure for a Senate as we know it. However, the regional governments would require some sort of participation federally and should there be 50-plus such governments, the whole process would become totally unwieldy and unworkable.

Tampering with our federal system to the extent of destroying that which was created in 1901, will almost certainly lead to a republic sooner rather than later. People would be massaged into accepting that it is the Constitutional Monarchy that is the problem, rather than being the safeguard it is against politicians who are themselves the real problem.

Former treasurer Peter Costello warned, following the election of Malcolm Turnbull as Liberal Leader in September 2008, that the issue of a republic could tear apart the Liberal Party.⁴³⁶ . Knowing this, one wonders why he and many of his Liberal colleagues have so relentlessly promoted a republic for so long.

Realising the futility of winning a referendum on a republic, republican politicians are today concentrating on ways in which the States can be side-lined and power concentrated in Canberra.

Whilst they may talk blandly about ‘Fixing the Federation’ their real, deceptive, purpose is to completely dismantle it. It is this that will be the issue that will totally divide the Liberal Party as it will divide the Labor Party and will also divide both monarchists and republicans. Above all, it will divide the nation, even more so than the issue of a republic did in 1999.

It was Cicero who wrote: It is as hard for the good to suspect evil, as it is for the bad to suspect good.⁴³⁷ Indeed, in these troubled times, we should all take note of the warning found in Matthew 7:16: By their fruit you shall know them and, in this instance, we must all be particularly wary of those monarchists who will take the side of political opportunism and support ‘Fixing the Federation’.

Many will do so in ignorance of what they are actually supporting, but others will knowingly do so to curry favour with those they feel will, in return, advance their personal cause, as monarchist Brendan Nelson found out to his regret when so many monarchists sided with - and even lobbied for - republican Malcolm Turnbull.

If there is a lesson to be learned, it is that there will be those who will pretend to be our friends, but will betray us at every turn. More ominously they will betray the Crown whenever it suits them.

KEEP THE CROWN, PROTECT THE CONSTITUTION

When recently interviewed on the ABC, Labor Senator Mark Arbib⁴³⁸ stated that the voters ‘like checks and balances’. Indeed, ‘checks and balances’ are what our constitutional system is all about.

There are checks on all aspects of Australian Governments, which are themselves balanced one against the other with the overriding check and balance being the Crown.

The machinery of the Crown was subtly in evidence when the NSW Labor Party abruptly replaced its leader Premier Morris Iemma²³⁶ with the novice Nathan Rees⁴³⁹.

Unlike in republics such as the USA, the transition was effected smoothly and without any crisis. The only bloodletting was kept within the party-room and away from the public domain.

That is how our system works, the only real imperfection being its reliance upon human beings with human frailties. Any breakdown in our governance has been due not to our Constitution but to the venality of our politicians.

It was no wonder that the people voted, in 1999, to retain the Queen as opposed to a politician President.

Her Majesty has sacrificed her entire personal life so as to serve her peoples in a dedicated and devoted manner that no politician would ever be able or, indeed, want to do.

Because the concerns that I have raised are so important, I take this opportunity to itemise them in point form:

   The Rudd government has undertaken to progress constitutional change to bring about a republic.

   They have received a mandate from the engineered 2020 Summit.

   As a first stage, it is proposed to hold a plebiscite

   If that plebiscite is won, the Government will assume a mandate to introduce a republic.

   It has been proposed that, at that stage, another plebiscite question be put or a constitutional convention be held, or it may be decided to immediately proceed to a referendum or, alternatively, the Government can try to use powers given to it under the Australia Acts to, jointly with the State governments, bypass the referendum process.

   However, realising that a referendum implementing such extreme change would be almost impossible to win and bypassing the constitution could well enrage the people, it is possible that the Government will commence what will be a long drawn out process of marginalising the State structure by implementing what could be as many as fifty regional governments which would, in time, lead to the removal of the States, the Senate and the Crown.

   Whatever the process, the end result would be the elimination of existing checks and balances with whatever effective government that remains largely controlled by the Labor Party with the support of its (left-wing) unions.

It is a frightening prospect, but, Ladies and Gentlemen, it is a prospect that is undoubtedly one being planned for our future.

Some may say that these presentiments are bordering on the paranoid. However, days after this paper had been compiled, the Prime Minister announced (on September 19 2008) the establishment of a new Local Government body in which the States will not be involved called: the Australian Council of Local Government (ACLG ).

The first meeting of the mayors and presidents of Australia’s 564 local councils is to be at Parliament House, Canberra, in late November.

The announced purpose of the ACLG is to forge a stronger relationship with local authorities to further the Government's infrastructure agenda and to discuss a constitutional recognition of local governments. In the Prime Minister’s words: We intend to use this as an opportunity to engage with local government direct on their future partnership ... on this Government's nation building program for the future.⁴⁴⁰ It was the Whitlam government which first commenced direct liaison with local government through its Financial Assistance Grants. In 1999, we saw how local councils unethically funded pro-republic propaganda. The proposed direct association between the Federal and Local government could well lead to an undemocratic political ascendancy.

If there is one thing that is clear, it is that we must always be ever watchful and must be always prepared and we must always do whatever we can, within our meagre budget, to educate and to warn the people - and particularly the younger generations - on the values of retaining the Crown in our Constitution. Above all, we must never be ashamed to be called monarchists, for we are the ones who support our democracy and our freedoms under the Crown whilst the republicans are seeking to destroy our responsible governments, and our democracy by  transferring the power of the people to politicians.

The republicans often quote from the Roman General Quintus Fabius Maximus¹⁸⁹, so I will close with an exhortation from another Roman, a philosopher, Marcus Aurelius⁴⁴¹ who said: Waste no more time arguing what a good man should be. Be one.⁷⁵⁷   Truly, Ladies and Gentlemen, may we always say, as our forefathers proclaimed a hundred years ago: 

One Life, One Flag, One Fleet, One Throne.