FROM THE PARISH PUMP
April 1999
VOTERS AT THE NOVEMBER referendum on the republican issue will probably think the first question, "Do you want the Constitution altered (Establishment of a Republic) 1999? " as being the most important question of the two being submitted for deliberation.
Not so.
It will, not matter how you vote on this issue, because the Constitution we have now is indissoluble. It is protected (the schedule) by a Preamble of the Commonwealth Act of 1900 that was drafted by the Parliaments of all Australian States, together with the Parliament of the United Kingdom and Ireland and the Crown. To dissolve the indissoluble would need these bodies of the British Commonwealth to come together again and dissolve this union. It is well to remember each Australian State is a separate Crown State.
Removing the present Preamble
About two months ago when the planned referendum was taking shape, a friend of mine spoke to the framers of the exposure draft for the ensuing bills to go to the houses of parliament for deliberation. It was pointed out by my friend that in order to have a Preamble to replace the one we have now, the first step must be to remove the present Preamble. The answer that was forthcoming from a senior person from that executive was, "Gosh, I didn't think of that!! "
The next move that I read was in a transcript by the Prime Minister, the Hon. John Howard M.P., at a press conference in Canberra on the 17th February 1999. To me it was abhorrent that in this press statement, the Prime Minister mentioned the words "Joint Party Room" seven times. He said, "The Joint Party Room last night approved in principle the Government's proposal in relation to holding of a referendum on whether Australia should become a republic. "
A second question
The P.M. went on to say, "The Party Room has approved overwhelmingly the proposal I put to it on behalf of government, that there should be another question put to the Australian people, and that related to the adoption into the Constitution, or the incorporation into the Constitution of a Preamble which would canvass a number of matters, including an acknowledgment of the prior occupancy of the land mass of Australia by the Aboriginal people and some other matters I have raised in the course of the last few days. " He then said: "The republican issue will need the final tick from the Party room. "
Quite remarkably, to a person like myself who understands that the word "Party" was never mentioned at the time the Constitution was framed, I find the reference to the Joint Party Room strange. I would have thought all elected members should have had a say in the Draft. The P.M. then goes on to say, "We then, of course, will engage in relation to the republican legislation, a process of consultation with the opposition and others in the community. And I'll also seek the views of the Opposition on the Preamble. "
Changing the Preamble
Now I have laboured excerpts from this press conference in February, because it was prior to my friend's statement that our present Preamble cannot be changed until all the sovereign states and the Crown meet together with the U.K. and Northern Ireland. This, as I said, brought about the very "unprofessional" statement "Gosh, I didn't think of that! ", a remark I thought quite infantile and highlighting the degree of ignorance at a level where we, the average public, would expect expert legal knowledge.
Now, going back to the $40 million Constitutional Convention of last February 1998, commonly known as the "Con Con", I remember Mr. Howard making the statement in front of the TV cameras, after much to-ing and fro-ing, on what questions of statement should come from this meeting.
The statement, after much voting and abstaining and argument, was the "Magavi Model". That was: "A Referendum 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"
That is what Mr. Howard said he would be happy to put to the Australian people. He seemed relieved that the "Con Con" had at last made a resolution. No mention of a Preamble was made at that final press conference in February last year. Many statements were made, then and later, that this "Magavi Model" has no chance of getting the nod, the reason being that Australian's are not that stupid. A two-thirds majority of Parliamentarians voting for a President will mean that the Joint Party Rooms will decide a President, and not the people. As we now have our Governor General appointed, he is not beholden to anyone. His Letters Patent from the Crown are such that he is there to adjudicate per those Letters Patent. He has no choice. The Hon. John Kerr, who was appointed by a Labor Government, had no choice in 1975 but to dissolve Parliament and ask the people to back his judgement and vote again when supply was refused. He didn't sack Whitlam as most cried out, he simply dissolved Parliament because it was not functioning per the Act and in accordance with his Letters Patent.
As I said earlier, I have laboured this press conference because this whole saga is now unfolding.
My heading, "An Ignorant Mistake or Planned Deceit?" will be left for you as readers to decide upon. I will give you facts as reported to the general public.
At this point I will add that Mr. Howard said that $7.5 million would be spent on the "Yes" vote for the Republic, and $7.5 million for the "No" vote.
A question from a journalist asked, "Under the law, must there be a 'No' case against the preamble, and if so how do you get that? "
The P.M.: "Well, no. I'm advised that under the law there doesn't have to be a 'No' case."
Journalist Catherine asks, "What sort of people are you inclined to go to for advice on this? (the Preamble question). Academics? Lawyers? Poets, Writers?……? "
P.M.: "I'm not going to speculate about that. I'm simply making it clear, Catherine, that I feel free to seek advice of any Australian on this. "
To this time, two points are clear. The wording for the Preamble did not come from the $40 million "Con Con" and Mr. Howard also makes it clear it was his idea, together with his Joint Party Room colleagues.
It wasn't long before the question by Catherine, the journalist at the Press Club, was answered.
In The Sydney Morning Herald (4th March 1999) just before my friend asked the simple question to the executive committee of the Constitution about not tampering with the present Preamble, Mr. Les Murray, a poet who helped draft the new Citizenship Oath of 1992, said that Mr. Howard rang him in New York and spoke to him at the Consulate, making a date to talk about the "Preamble". Not the Republican question but only the Preamble. Mr. Murray said this phone conversation was two weeks ago from the 4th March 1999. That would have been the following day, after the Press Conference, give-or-take a difference of time on the international dateline.
Acknowledging the first Inhabitants
Mr. Murray, the poet, said Mr. Howard - he believed - became interested in his version of the Preamble after it appeared in an article in the Herald last month. That version included references to God, and the republic, and also acknowledging Aboriginal and Torres Strait Islander people as the first inhabitants of the country.
Well, to digress a little, let me summarise
We have executive committees who don't know it is necessary to remove one Preamble before a new one is voted on, and now a poet who belongs to a group of people who simply play with words and give us enjoyment with their articulate prose. Poets are as far removed from constitutional lawyers and law as the North Pole is from the South Pole. As good a poet as Mr. Murray is, why would the P.M. seek his advice to frame a sacred and constitutional document such as a Crown Constitution, steeped in the history of Magna Carta and the Bill of Rights, dating back centuries to King Alfred? Mr. Murray said the article in the Herald mentioned the republic. This press report also claimed he said, "I imagine the PM will probably want it to be republic neutral. " He then said he, (Mr. Murray) would not go along with anything that rejected a republic. That last statement, I believe, is paramount.
Mr. Murray said he "wouldn't go along with anything that rejected a republic."
Dating back to the press Conference of the 17th February 1999, Mr. Howard said, in reply to a journalist: I am not a republican, and the Australian people will be left in no doubt as to where I stand on this issue. " Following Mr. Murray's talk with Mr. Howard, Mr. Murray said he agreed with the Preamble as stated by Mr. Howard in everything but the word "Mateship", which he said would not be accepted by everyone. Therefore he was happy with the reference to the "republic" as he stated.
A Republican statement
Now I can hear people saying, "The word 'republic' is not mentioned in this 'Draft' of the Preamble." I'm sorry to inform you it is. The opening line of the "Draft" says:
"With hope in God, the Commonwealth of Australia is constituted by the equal sovereignty of all its citizens. "
That opening sentence is a republican statement. Let me read what the Oxford dictionary says of a "Republic":
"Republic (N): A state in which the government is carried on nominally and usu. in fact also by the people or its elected representatives, commonwealth, (fig.) society of persons or animals with equality between members. "
The similarity of the Draft Preamble, 'constituted by the equal sovereignty of all its citizens', and the dictionary meaning of a republic, 'equality between members' make them unmistakably republican statements.
Australia at present is not united by man as suggested by the "Draft". Australia is united in one indissoluble Federal Common-wealth under the Crown of the united Kingdom of Great Britain and Ireland. Of course, now it is Northern Ireland, as the South has become the Republic of Ireland. In 1900 Australia consisted of six Crown States, and the only way to unite under God's law was to go to the British Commonwealth and ask that they sanction the Draft constitution of 1900 and give us this Act of the Commonwealth of Australia. We had already taken verbatim excerpts from the English, the Canadians, the Americans, the Swiss and the Germans for our guidelines. With all due respect to the literary world, our founding fathers did not go to poets for advice on this highly complicated matter of sovereign rights under the Crown,
Constitution Alteration [Preamble] 1999 Exposure Draft
Now let me again quote my heading: "An ignorant mistake, or a planned deceit?"
I will now go into detail and let the readers decide on my reason for this statement.
The introduction to this Draft Preamble says of the "Con Con" last February 1998. "If a referendum was successful, a republic should be established by I January 2001."
1.4 of this draft says, "A Preamble may be inserted in the Constitution proper without any amendments being made to the Preamble to the Constitution Act (UK) or to any covering clauses of that Act." You bet your life there won't be any amendments to the Preamble of the Constitution of the Commonwealth Act, because, as I said previously, that Preamble says plainly the States are indissoluble and to change any word, any comma, any full stop would need the concurrence of the UK, the Crown and all the States of Australia.
"Where then to put this innocuous Preamble?"
Let me quote the Oxford Dictionary meaning of "innocuous". It means, "non injurious and harmless. "
While quoting the Oxford Dictionary, let me give you the meaning of "miscellaneous". It means, "of mixed composition or character. "
Well now, what a surprise! The Draft Preamble Bill of 1999 is hoped to be inserted in the actual schedule of the one hundred-year-old Constitution in the section called "Chapter VII Miscellaneous." It will be called Section 125(A). Now, if you were a cynical person you might say, "Isn't it strange to place a Preamble - meaning 'pre' or 'before' - at the end of a Constitution?" Well, let's overlook that quirk because it's not going to mean anything. The Preamble we have now is the one that's important and we cannot change that important part of the Commonwealth Constitution Act. That makes us feel good and quite secure from future tyranny by any group that might want to wrest power for themselves and remove our powers and rights.
Not only is the proposed Preamble not going to mean any more than talk about "mateship" and "Aboriginals who are honoured for their continuing cultures", Section 5.5 of this Bill also says the nice and warm poet's Preamble (agreed to by the Joint Party Room) "will have no legal force and shall not be considered in interpreting the Constitution or any law in force in the Commonwealth or any part of the Commonwealth. "
Well, after reading this statement, what we vote on will have no legal standing!
I almost felt like going back and changing my heading. I felt I must have been a little paranoid about thinking the government might be harbouring a hidden agenda! After all, the Bill states it cannot alter our present Preamble to the Constitution, and this warm and fuzzy new Preamble has legislation telling us it has no legal force. Well, why not vote for it and make everyone happy, especially those that attended the Joint Party Room?
Innocuous, harmless, of no consequence.
Not on your Nellie! This Preamble is a sleeping giant
4.3 - The Sleeping Giant
Going before Parliament is the Clause (4.3) that I could only say is infantile in legal jargon, and vague in legal meaning. It says: "If in the future it was considered desirable to alter or repeal the Preamble or the covering clauses of the Constitution Act (UK), this could be done by the Commonwealth Parliament at the request of the States under the Australia Act 1986 or by further Constitutional referendums."
That says it all. Not only does it make a mockery of 5.5 (no legal force etc.), it unleashes the Australia Act that interfered with our Constitution in 1986 without our consent, and now makes it legal - if this Preamble gets the nod - to change "by further referendum". These Joint Party Room supporters are attempting a kangaroo-court-type amendment that will change what we thought was a Preamble set in concrete to a vulnerable one that can be blown away like clay targets at a gun club!
4.3 Clause is a sleeping giant that could change the face of Australia forever.
4.3 will have the ability - if it changes the Constitution Act - to dissolve all Crown States.
4.3 will have the ability to change or dissolve the Senate. These are the checks and balances our founding fathers thought would give us personal protection from totalitarian tyranny.
4.3 will immediately place local government in a no-man's-land. At present we are a regulatory authority of the Crown and have huge powers, especially in the areas of deliberating on land titles, with the consent of the Minister for Lands. These titles could be transferred to a central point in Canberra. The constitutional recognition so sought after by the seemingly stupid people in local government and parliament would become a reality at the expense of the innocent ratepayers. The 3.75 million land titles now administered by local government in New South Wales - and probably about 15 million across Australia - would, with a flick of a switch on the computer, be transferred to Canberra.
Believe me, the "framers" of the Preamble arc playing for keeps.
Again, please remember what I said. A "Yes" on the republic question and a "No" on the Preamble would still not change one single thing, because the Constitution is set in concrete by our Constitution Act 1900.
But, a "No" to the republican question and a "Yes" to this seemingly artistic, full of prose, warm and fuzzy Preamble will give any bi-partisan government, or a government with a huge majority, the ability to repeal the Constitution Act of 1900 simply by an appeal from all States, using the seemingly innocuous Australia Act of 1986.
What a web "they" weave who propose to deceive! Yes, it's taken thirteen years since the Australia Act to observe the full meaning and intent of what was thought to be a gesture to rid ourselves of that terrible Privy Council and the authority of a monarch 12,000 miles away.
The fight is on. Let churches, schools, farmers' organisations, local government and any organisation that wants a free Australia now stand up and be counted.
Democracy simply means the average "Joe Bloggs" in the street can demand his rights of speech, of fair trial, of fair bail, of a good jury, of tenure of freehold land and to all other Common Law benefits without - and I make this point very clearly and with maximum emphasis - without the need for a solicitor and a barrister and a judge to even utter a word in his defence. That is "Joe Bloggs" democracy. That democracy would not stand up in court if it wasn't for the backing of our sovereignty granted to us when the Monarch repeats the Coronation Oath accepting God's word as the Master of the realm.
If this Preamble Bill is not thrown out by the Senate, then one wonders about the integrity of those elected to govern, remembering they all repeated the Oath of Allegiance to the Crown and Almighty God when they were sworn into office.
The fight is on, and the fight is ours, because we have the most to lose.
At first I thought we were safe if the Preamble was placed outside the Schedule of sections after the covering clauses of the Constitutional Act 1900.
The "framers", I believe, recognised the people or the High Court had no jurisdiction to play any role if it stayed outside the scheduled sections.
Now it is different.
This Preamble is being given a number in the Miscellaneous Section (125(a)) of the scheduled sections.
Finally, what is there about the section "Miscellaneous" that gives us a problem? Have lawyers sat down and used words to play on this grey area of doubt in "Miscellaneous" itself?
I am old enough to remember voting in the 1967 referendum for a Bill that went through parliament deleting Section 127 of the "Miscellaneous" Section which said "Aboriginals would no longer be counted". I voted for a Bill that said "Parliament could made laws for other races." Since then, Parliament has not stopped making laws for other races.
Firstly, early in the Whitlam Labor government's term, half-caste Aborigines were declared full-bloods, which saw a dramatic rise in Aboriginal numbers. Then during Fraser's Coalition, term we saw Native Title taking place. Then ATSIC was formed to include the Torres Strait Islanders, and as a result we saw the Murray Islands land titles superimposed on all land titles for all Australia.
Removing the Miscellaneous section of not counting Aborigines, and changing Section 51(26), which allows "Parliament to make special laws for other races" has opened up Pandora's Box.
So, too, will Pandora's Box be opened if we insert this Joint Party Room proposal to create a new section in the Miscellaneous Section called 125(A).
A Republic by stealth
Australians should be up in arms about the clear possibility of parliament creating a republic by stealth.
Australians, the Bill of Rights, Declaration of Rights and Magna Carta are on the line if we allow ourselves to be fooled by this Joint Party Room agreement.
A "Yes" vote for this Preamble - which I agree looks more like a motherhood statement than a Constitutional legal statement - could easily change us into a republic overnight. I hope Senators read Section 4.3 of this Preamble Bill before they vote on it. The Senators' jobs are also on the line.
It would be well for all of us to remember that a bi-partisan parliament in 1986 took only 12 minutes to pass the Human Rights and Equal Opportunities Act in both houses. This gave political correctness the teeth it needed to persecute many people who fell into this trap.
Finally, if you asked me if I thought this Preamble was the most deceptive legislation I have seen, the answer is Yes. It is even more ambiguous than the 1967 Aboriginal question.
Why are the referendum framers so blatant when they tell us that in future the Australia Act will decide on the Preamble? The answer is that in 1999 these people are more blasé. In 1967 there was an air of caution. Now these people are throwing caution to the wind and thumbing their noses at the referendum privileges we borrowed from the Swiss model in 1900
If this Preamble gets past the second reading of parliament then the Senate, the Common Law and Crown powers, and local government's liaison with the States are at risk.
In 1988 nearly 84% of Australians didn't know we had a Constitution. Those of us who are aware must work overtime to see our rights are not eroded by the tyranny of those that support man's law.
Another way to wake up our sleepy backbenchers in Canberra, and others, is to all phone 132447 for a free copy of the Constitution Alteration Preamble 1999. This is a local call price, and after the 30th April 1999 there may be no further copies available.
Do it now, and tell Canberra we are concerned!
"From The Parish Pump" published monthly by Bevan O'Regan,
"Moema", Narrabri, New South Wales 2390. Ph: 0267 938 641