The Constitutional Convention met in February 1998 to consider a republic. Based on this convention in late 1999 the Government will hold a referendum on whether Australia should become a republic. Two questions will be put to the people.
A. Do you want a republic
B. Do you want the new preamble for the Constitution. A republic resulting from
Question A should be consistent with the preferred model which emerged from the 1998 Constitutional Convention. The preamble in Question B will be as proposed by John Howard
To effect the necessary constitutional changes, should both these questions be answered in the affirmative, the Howard Ministry is proposing three bills.
i. Constitution Alteration (Preamble) 1999
ii. Constitution Alteration (Establishment of Republic) 1999 and
iii. Presidential Nominations Committee Bill (Presidential) 1999
Exposure drafts of these bills were released on March 9 th by Special Minister of State, Chris Ellision. However, comments had to be received by 16 April 1999 to be taken into account. This was only a little over a month.
As there has been no media exposure of the bills this means that Australians have been denied comment on important constitutional changes. When one examines the bills it is easy to see why the Howard Ministry did not wish to have public comment and scrutiny.
The Preamble Bill inserts the new Preamble into the constitution, the Presidential Bill details the methodology for election of the first President and the Republic Bill sets the functions and powers of the President within the existing Constitution.
The Preamble Bill is simply a ‘machinery legislation’ to insert John Howard’s Preamble into the constitution. There is however an important suffix to this Bill. The Constitution will be altered by the insertion of Section 125A - Effect of preamble.
This Section states "The preamble to this Constitution has no legal force and shall not be considered in interpreting this Constitution or the law in force in the Commonwealth or any part of the Commonwealth."
This means that the word that the people are voting on are totally meaningless.
The Presidential Bill establishes a committee to invite and consider public nominations for a President should the change to a republic be approved. The government’s web site has stated "As this Bill would not alter the Constitution it does not have to be approved at a referendum. It has been released to ensure that all the main elements of the proposed model for a republic are available to those who wish to comment." The Presidential Bill hence does not form part of a referendum
The Republic Bill sets out the changes to the Constitution necessary to establish a republic of the Commonwealth of Australia based on the Convention’s preferred model. It provides for :
ii. the mechanism for selecting a President, including a committee to receive and consider nominations;
iii. the powers of the President;
iv. the removal of monarchical references;
v. transitional arrangements.
The above changes are legitimate and consistent with the establishment of a republic and the introduction of a President. References to the Queen and Governor General are to be removed and several sections of the Constitution repealed or amended. Other sections of the bill put ‘machinery’ provisions in place. For instance s.60 establishes a mechanism for choosing a President. The constitutional mechanism is the establishment of a committee for the purpose of inviting and considering nominations and to for a report to be sent to the Prime Minister for consideration.
HOWEVER INCLUDED IN THIS BILL ARE AMAZING CHANGES TO THE CONSTITUTION. THESE CHANGES HAVE NOTHING TO DO WITH THE ESTABLISHMENT OF A REPUBLIC AND THUS ARE A FRAUD ON THE AUSTRALIAN PEOPLE.
The legislation does not reflect accurately the consensus of the Convention. Additionally it makes changes that are not related to the Republic. But of most important is that it puts in place, either accidentally or deliberately, the necessary power for the destruction of the states by the Commonwealth.
Constitution Alteration (Establishment of Republic) 1999
The Constitutional Convention met in February 1998 to consider a republic. From this simple fact can be established two simple pieces of law relating to the validity of the ‘machinery’ legislation necessary to create the Republic.
ii. Legislation is limited to ONLY those changes necessary to establishment the Republic.
The Howard Ministry in the new legislation has broken both these simple tenets.
The most blatant fraud goes to the corrupt nature of Australian politicians. This nature has been demonstrated many times in relation to their personal monetary rewards. This great parliamentary tradition continues in the constitutional changes proposed for the republic.
The new Section 66, detailing the Salaries of Ministers states, "There shall be payable out of the Consolidated Revenue Fund, for the salaries of the Ministers of State, such annual sum as is fixed by the Parliament."
Our existing constitution does not include salaries for politicians. The only relevant provision for the remuneration of parliamentarians is Section 48, which only provides for "an allowance" to cover fair expenses. With Section 66 the members seek to entrench into the constitution the salaried payment of their services. AND WHAT DOES THIS HAVE TO DO WITH A REPUBLIC ??
The modifications proposed paves the way for Canberra to gain complete financial control over the states. Presently Section 85 (i) allows the States to vest property to the Commonwealth. However "in the case of departments controlling custom and excise and bounties, for such times only as the Governor- General in Council may declare necessary." Thus the permanent transferral of these financial powers is constitutionally impossible in the existing constitution.
In this manner Section 85 (i) provides the preservation of the States’ financial autonomy. If under any Commonwealth emergency power such financial functions have to be transferred to the Commonwealth it can only be for a temporary duration.The proposed replacement however is simply that , "all property of the State of any kind, used exclusively in connection with the department, shall become vested in the Commonwealth". There is no provision for the permanent preservation of powers relating to customs, excise and bounties.
Section 126 has been removed in its entirety. This Section relates to the power of Her Majesty to authorise the Governor General to appoint deputies. It has been replaced by a completely unrelated clause. The new Section 126 details the "Operation of the Constitution and laws" and it states,
"This Constitution, and all laws made under it by the Parliament of the Commonwealth, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State.[ emphasis added]"
These words are similar to Clause 5 of the current Preamble but this begins differently. It states that "This [English Parliamentary] Act, and all laws made by the Parliament of the Commonwealth under the Constitution"; thereafter the words are essentially the same.
As part of the Preamble the purpose of these words was only to assist in the interpretation of the Constitution. However now they rest in the body of the Constitution. The effect is to increase and entrench further Commonwealth power.It may be argued that Section 126 is the same as Section 109. However the legal reality is that they are not the same; nor are they consistent. Rather Section 126 will increase Commonwealth power and more importantly preserves it so that is can only be removed in another referendum. [MORE ON THIS IN NEXT SECTION]
Presently the generous treatment in favour of the Commonwealth that exists with Section 109, exists only at the discretion of the High Court. (For more detailed analysis see opposite inset).
Of further concern in the operation of Section 126 is that it might remove ‘rights and liberties’ that stem from the laws of the States. Such ‘rights and liberties’ come from the citizen’s attachment to the Crown; thereafter through the ‘laws of the States’. For instance the Commonwealth might in the future remove the Habeas Corpus Act. Will this override the existing State guarantees attaching to a subject of the State Crown?
Amendments to Australia Acts 1986 Andrew Fraser in the Sydney Law Review has said that the effect of the Australia Acts 1986 is that "the ‘ultimate’ sovereign power to decide on the exception in matters of constitutional law and politics has been vested in government, not the people. This is the dirty little secret of Australian constitutional law that the High Court is not yet prepared to divulge [emphasis added]".
If this is the case such illegalities will be constitutionally entrenched; appeal will be impossible. Section 74, which provides for appeal to the Privy Council, will be removed completely. But if the Australia Acts 1986 are unconstitutional it can still be revived. This will not be so in the ‘new republic’.
The current Section 109 states that "when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall , to the extent of any inconsistency, be invalid.".
This has been accepted by the High Court to mean that, essentially, a Commonwealth act will override a State act. Nevertheless there is significant legal work that says that this is not appropriate law. It is not impossible for a future High Court to over-ride this interpretation and place restrictions on the Commonwealth.
Currently this section does not provide a power to the Commonwealth but, rather, works by giving the Court the ability to temporarily remove the effects of State acts. P.H. Lane in The Australian Federal System states, "the state law becomes inoperative by force of the express words of the Constitution"; not from a power of the Parliament. Section 126 however extends Section 109 and makes state law inoperative by force of the words of the Commonwealth act.
Under the current constitution States law are preserved in spite of conflicting Federal legislation. Thus should the Commonwealth ‘artificially’ attempt to manufacture an inconsistency it will not be sufficient for the engagement of Section 109. It may be invalidated by the High Court. The incorporation of the new Section 126 however will mean that such High Court limitations will no longer be operative.
Other issues arise with the way Section 126 is framed and planted within the Constitution. Could a Federal Act to authorise the building of a defence complex override state planing and environment laws? Could a Commonwealth Government law that demands the burning of secret documents override a state fire-ban legislation ?In summary Section 109 is not a grant of power to the Commonwealth parliament. The existence of this clause cannot justify the inclusion of the powers in the new Section 126.
The President is meant to be independent of party politics. However the proposed republican constitution means that, in a substantial manner, he will be subservient to the political parties. For instance they may dismiss him at will and even appoint a person who in unqualified under the constitution for the position. And in this event the acts of the ‘ illegal’ President are not disputable as the constitution authorises them.
The theory presented by the political parties is that the President is first selected by a nomination committee of the States, the major parties and the citizens body. On this basis there is some independence. However Section 60 states that, "After considering the report of a committee...the Prime Minister MAY... move that a named Australian citizen be chosen as the President." There is no obligation on the Prime Minister of the day to do as the Nomination Committee recommends. It is "the Prime Minister's motion" that the Parliament votes upon for the Presidency; not the selection of the Nomination Committee.
It is interesting conjecture to see what would happen if the Prime Minister put another person into the Presidency. This person could for instance be a party politician even though qualifications are meant to exist to exclude this.
Should the Prime Minister move a party man to be President and force it through it makes no difference. "The actions of a ... President under this section are not invalidated only because the person was not qualified to be chosen as President."In any event Section 62 provides that the "The Prime Minister may, by signed notice, remove the President with effect immediately." The only restriction is that "Within thirty days after the Prime Minister removes the President, the Prime Minister must seek the approval of the House of Representatives for the removal of the President."
Roughly stated this says that as long as the major parties agree they may remove the President at will. The major parties become the new political sovereign for Australia.This is confirmed in Section 59. " The President shall act on the advice of the Federal Executive Council, the Prime Minister or another Minister of State".
Presently, under Section 62, it is the Federal Executive Council that gives advise to the Governor General but, today, the Governor General is free to act as he wishes.
In the republic the President SHALL ACT on the advise of the Prime Minister. Exacerbating this the words " OR another Minister of State" mean that he also subservient to all the Ministers of the State. This has the effect of binding the Executive to the Legislature and removes, in part, the Separation of Powers that is built into the existing constitution.
This removal of independence from the position of President seems to cause conflict in the proposed constitution. If the President " SHALL ACT on the advice of...the Prime Minister" what does the new Section 58 (Assent to Bills) mean. This section states that "When a proposed law passed by both Houses of the Parliament is presented to the President for assent, the President shall, according to the President's discretion but subject to this Constitution, assent to the law or withhold assent."
Our first constitution in 1901 was authorised by the voters of Australian after 10 years of discussions. When these voters went to the polls they did not vote on whether Australia was to become a Federation. They voted on the actual words of the Constitution that would effect the change to a Federation.
However very few know what is in the new republic legislation.The 1988 Constitutional Convention that has taken place debated only one critical question. This was the nature of the Head of State. ALL other important questions, if the republic is successful, have been decided by the politicians. And remember even where there was the ‘ facade of democratic participation’ they would not allow you the one choice you wanted, i.e to elect the Head of State. Imaging the result when there is no restraint at all on their megalomanic excesses.
Today the reality is that in a change to a republic you are only to be given the right to decide on whether you want a republic and the words of the preamble. The Constitutional Alteration Bill however makes clear however that "the preamble has 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." So, in voting for the Preamble, you have been given the power to vote on ABSOLUTELY NOTHING as the preamble has NO LEGAL SIGNIFICANCE WHATSOEVER. The important words of the new constitution, the words that have legal significance, have been written by the politicians.
In the current republic referendum process you have given the politicians a blank cheque to write the new constitution as they would like! AND THEY HAVE DONE SO! The politicians of all major parties in selecting this process have indicated their total contempt for the Australian people.A valid change to a republic must be two fold. First the voters must have a referendum to decide if they wish to have a republic. After this the new constitution must be debated, written and then put to the people again in a SECOND referendum. Then we will have in place the same democratic process that made the first constitution such a success.
The Presidential Bill will create a Presidential Nominations Committee which will comprise 32 members. There are three broad groups who make up a committee. Briefly there are :
i. 8 members of the Commonwealth Parliament.
Each political party with 5 members or more in the Commonwealth Parliament is entitled to one place in this group. Leftover places are allocated among parties, with at least 15 members, by reference to the extent of their membership in the Parliament.
ii. There are 8 State and Territory members for the respective legislatures.
iii. There are 16 community members appointed by the Prime Minister. These members must not be members of any legislature.
After taking into account the report of the committee, the Prime Minister presents a single nomination for the office of President, seconded by the Leader of the Opposition, for approval by two-thirds of a joint sitting of the Parliament. The Prime Minister does not have to accept the nomination of the committee. Theoretically he may select anyone that he wants if he is able to get the Parliament to accept them. In this case he could use the normal methods of political influence (grants to member’s electorate etc) to get his preferred person to the office of President.
.