A Constitutional Journey

A CONSTITUTIONAL JOURNEY
By
Graham L. Paterson
February 2013
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Dedication
I would like to dedicate the book to my wife Cynthia, and my sons,
Alisdair and Stuart, who have accompanied me on this "journey", but
also on all our travels to different lands where my career has taken me.
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A CONSTITUTIONAL JOURNEY
Graham L. Paterson
INTRODUCTION
I have written this book from the perspective of an ordinary Australian citizen who
became aware that the Australian Constitution is the most important document in the
lives of every person living in this country. Of course, very few people would ever
think in these terms; many would probably dispute that statement, and the vast majority
who know nothing whatsoever about the Constitution, would have no idea what I am
talking about.
The Constitution is the foundation for creating all the laws that govern our lives and for
that reason alone, it is a crucially important document. However, a nation’s
Constitution is, or should be, more than that. The Constitution should be an expression
of the fundamental philosophy of the people who wish to live together in a society. In
order to do this, a Constitution needs to be a creation of the will of the people, to be
understood and embraced by the people and to identify the people as the fountainhead
of all political ‘power’.
To be a proper Constitution it needs to clearly define the powers and limitations the
people are prepared to delegate to their elected representatives. Any powers not so
defined must always remain the right and property of the people. A good Constitution
requires a Preamble, which sets out the basic philosophy of their society and the
fundamental rights, and principles, that have to be observed in making laws. The
Preamble is to be considered an integral part of the Constitution for any subsequent
judicial decision involving an interpretation of the Constitution.
The Australian Constitution does none of these things. At root, it is nothing more than a
contract between the governments of the 19th
century colonies as to how they might
share ‘power’ with a central government under a federated arrangement. When an
ordinary person reads this Constitution, they cannot help but be appalled by the
dictatorial powers allocated to the Governor General. Not only does this office
represent the Commander in Chief of the Armed Forces, it also has the power to open
or close Parliament at will and to appoint an, undefined, Federal Executive Council to
advise on governing the nation. There is no mention of a Prime Minister in the
Constitution or any original recognition of political parties. The whole of the
Constitution is steeped in 19th
century political thinking, which considers the

Government as the sole source of power with the authority to control the people as it
sees fit. This thinking has been retained right up to the present day, not only by the
Government but, also, by the High Court of Australia. This Court sees the Constitution,
purely, as a legal document, to be interpreted and manipulated without any reference to
the people, who should be, its rightful owners.
The sad part of this story is that this Constitution has never been a ‘people’s’
Constitution because; it was drawn up by politicians and lawyers for their express
benefit. The people need to reassert their authority as the source of all political power
and reclaim the ownership of a truly ‘people’s’ Constitution for Australia. This can
only be done by scrapping this present Constitution, which, to this day, is still one part
of a nine-part Act of the British Parliament.
The opportunity to exert the people’s control of their Constitution will arise the next
time the Australian Republic is raised. This is mooted to happen when the present
Queen of England abdicates or dies.
That will be the opportunity for the Australian people to include the following type of
binding Preamble into any new Constitution.
PREAMBLE
We the people of the Commonwealth of Australia, a Federation which was constituted
under an Act (63 and 64 Victoria, Chapter 12) dated the ninth day of July 1900, have
agreed to adopt this Constitution governing the Federal Commonwealth Parliament,
the Government and all the Courts of our Nation, in accordance with our beliefs as set
out in this Preamble.
In setting out, herewith, the fundamental beliefs and principles governing the
application of this Constitution, this Preamble must always be treated as an integral
part of the Constitution in the formulation of Laws and Judicial decisions.
WE hold to the belief that all Australians, including the descendants of the
original Aborigine inhabitants, are created equal under the rule of Law, that we are
endowed with certain inalienable rights; these include the right to life, liberty and the
pursuit of happiness and it is the Parliament’s responsibility to guarantee that these
Rights are sustained..
All Rights are ordained as the possession of the people who accept the associated
responsibilities in the interest of our society and the Commonwealth of Australia.
WE further hold to the belief in the Rule of Law as the only viable option for a
Democratic Society. This belief is based upon the universal values contained in our
historical Common Law heritage.
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This heritage is covered by the Great Charters of England, handed down to us
through the centuries as part of the development of British Common Law and
subsequently incorporated into Australian Common Law.
WE hold these values to be inviolate and that no Parliament, or Court, of the
Commonwealth of Australia shall have the right to deny, or rescind the inherited
rights, freedoms and obligations of any Australian citizen as provided by our
Common Law heritage.
WE, the people of Australia, hereby declare that we are a sovereign
independent Nation made up of Australian States and Territories.
WE, the people of Australia, further declare that our Parliamentary system
shall comprise of an Australian Crown (or Presidency), a House of Representatives
and a House of Senators, each of which shall be formed in the manner set down in this
Constitution.
WE also declare that the Government of Australia shall be vested and
maintained in the four principal, independent, non-political areas covered by the
Public Service Departments, the Police Service, all sections of the Judiciary and the
Defence Forces of Australia.
All Members of the Australian Crown (or Presidency) as well as every Member
of the Australian Parliamentary system and of each of the Government Services
designated above, shall, at all times, be responsible to the People of Australia and
shall, as provided for in this Constitution, swear to such allegiance by the Oath of
Office contained herein.
WE, the people of Australia, declare that the responsibility for the Government
of the Commonwealth of Australia shall be vested in the Members of the House of
Representatives whom shall appoint, or elect, from their membership, a Prime
Minister.
The Prime Minister shall then select an Executive Cabinet, comprising of
Members of either the House of Representatives or the Senate, with the duties and
responsibilities, as provided for in this Constitution. Members from either House of
Parliament shall be selected, by the Prime Minister to act as Ministers in charge of the
various Government Departments, but, so as no one person shall be a Minister of more
than two such Government Departments at any one time.
The High Court of Australia shall be as set out in this Constitution and any
judicial decisions relating to this Constitution must be with the unanimous agreement
of all the Judges hearing the case.
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The remainder of this Constitution shall be divided as follows:-
By including reference to British Common Law and the Great Charters and Acts that
form the basis of Australia’s Common Law practice, this Preamble automatically
includes the Bill of Rights Act, the Habeas Corpus Act, the principles of the Magna
Carta and the other historical Acts that contribute to the development of Common Law.
This book describes the many paths and byways I have travelled during 28 years in
trying to get an understanding of this all important document. Over the past 90 years, a
great number of people have gone to extraordinary lengths to cover up a fundamental
omission that was made in 1920. Australia had the opportunity to become a sovereign
and independent nation when we were accepted as a founding member of the League of
Nations. It was at that point in time when Australia should have severed all political ties
with Britain by creating our own Australian Constitution and formally declaring our
sovereignty and independence. That was never done and the original Constitutional Act
of the British Parliament remains in place to this day. Politicians and High Court Judges
have been clutching at straws ever since in their effort to deceive the nation about its
true status in respect to the Monarchy and the United Kingdom. They have even come
up with a ridiculous theory of Constitutional evolution, as though this antiquated, but
important document has, somehow, acquired a will of its own.
I have finally been able to comprehend why so many, supposedly, learned men and
women, both inside and outside of Government and the legal fraternity, have had to
resort to these extraordinarily dishonest actions. They had no choice. As long as the
Australian Constitution remained an Act of the British Parliament, we could not be an
independent nation in spite of what anybody may have said, thought or wished.
This Act of the British Parliament, which is actually titled, “The British Colony of the
Commonwealth of Australia Constitution Act 1900 (UK), puts us in breach of
Articles XVIII and XX of the Covenant of the League of Nations (1920-1946) which
invalidates the usage of the laws of Member States within the sovereign territory of
other Member States. This same breach is carried over to Australia’s membership with
the United Nations through Articles 2.1,2. 4, 102 and 103 in the UN Charter. It has
been absolutely imperative for the Government and the High Court of Australia to
avoid, and deny, any challenge to the Constitution because; such a challenge would
immediately impact on the validity of these institutions.
My journey is unfinished and will only reach its final destination when the Australian
people, not the politicians and certainly not the lawyers, stand up, and in one voice,
create their own, truly, Australian Constitution.
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2nd
Oct. 2010
CONTENTS
Chapter 1. The Journey Begins
Chapter 2. A Fundamental question
Chapter 3. A Step back into the Past
Chapter 4. The Quest for Independence
Chapter 5. The Unsavoury Creation of the Queen of Australia
Chapter 6. The Question of the Governor General’s Appointment
Chapter 7. The Ludicrous Evolutionary Theory
Chapter 8. Allegiance to a Foreign Power
Chapter 9. Questionable Actions of the High Court of Australia
Chapter 10. The Republican Question
Chapter 11. The Republican Advisory Committee
Chapter 12. Republic v Monarchy – To be or not to be?
Chapter 13. Referendums
Chapter 14. Economic Democracy
Chapter 15. The Global Market
Chapter 16. Money as a Commodity
Chapter 17. The Government Sanctioned Ponzi Scheme
Chapter 18. Does Government have a solution?
Chapter 19. The Debit Tax System and a National People’s Bank
Chapter 20. State Owned Banking
Chapter 21. A New Vision for a New Age
Appendix 1. A Periodic Constitutional Review Process
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CHAPTER 1
THE JOURNEY BEGINS
This journey started in Indonesia, probably, around 1970. I initially visited
Indonesia in 1967, two years after the coup that put President Suharto in power.
I returned to that country in 1969, just as the foreign investment boom was taking
off, and spent 3 very successful years running my own consulting business. I had a
good command of the language from 3 earlier years in Malaya and this led to
ongoing involvement in negotiations between foreigners, various local companies
and Indonesian officials. Discussions involving the Indonesian Constitution often
arose in the course of these negotiations and it was a bit of an eye opener that
many Indonesians were completely familiar with this document. I soon became
aware that copies of the Constitution booklet were sold at a great number of shops
and street stalls across Jakarta.
It was fortunate that my work took me to every main island in the Indonesian
archipelago where I was confronted with this amazing distribution of the
Constitution. I subsequently learnt that the Indonesian Constitution was taught in
the schools as it embodied the 5 principles representing the Indonesian philosophy
for their society. These 5 principles are known as the Panjasila and this is depicted
in the Indonesian Coat of Arms.
In essence, these principles are:
• belief in god
• belief in humanity
• belief in national unity
• belief in the sovereignty of the people and
• belief in social justice.
This was my first exposure to matters Constitutional, and in a sense, I was
fortunate to have this encounter with what, I now recognise as a ‘people’s’
Constitution. It is a Constitution that is read and understood by the people and
relates to their everyday lives. That does not necessarily imply that it is a perfect
Constitution or one that defines and limits the powers of Government, or that it
cannot be manipulated.
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It occurred to me, I knew absolutely nothing about my own Australian
Constitution, had never seen a copy, let alone read one, nor had it every been a
subject discussed at school or any other place. When my family and I returned to
Australia in 1972, I decided to acquire a copy of the Australian Constitution and
see what it said. As it turned out, this wasn’t all that easy but I eventually did
obtain a copy through the Government Printing Office, if I remember correctly.
They say that every journey starts with one small step and reading that copy of
the Australian Constitution was my first step on a 28 year journey through the
absurdities, deception, misinformation, distortions, disinterest and astounding
lack of knowledge surrounding this document.
CHAPTER 2
A FUNDAMENTAL QUESTION
What is the purpose and reason for having a government?
Before we discuss this issue, it helps to understand the historic background that
has evolved, and been perfected, in arriving at the present day’s attitude towards
Government. Clearly, there are two very distinct and opposite views on how
Governments should operate – on the one hand is the view of the politicians and
bureaucrats who, as a class, represent the Government – then there is the view of
the vast majority of people that make up the general population. From the
government point of view, they are the ‘leaders’ and are responsible for ‘leading’
the people in the direction deemed most appropriate by the Government, in other
words, exercising control. From the people’s point of view, the role of the
Government is to serve the needs of the population by providing services that
cannot be achieved through individual effort, or to put it more succinctly, to serve
a public purpose. However, the historical fact that powerful financial interests
have long had an inordinate influence on the political process has now become
more obvious. This has been the case irrespective whether the Government is
perceived as a democratic institution or an authoritarian one.
That historic background dates back many centuries, and invariably derives from
the feudal and monarchical system of “government” with it’s related peasantry
and aristocracy.
To quote Makinde Adeyinka, “The nature, necessity and scope of the miscellany of
powers exercised by the state over the nation (meaning – the Government over the
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people) is in one sense arguably as contentious in the contemporary circumstances of
the Western world as it was in the distant pre-democratic medieval past.
Back in 1589, Della Ragion di Stato wrote, “The Reason of State” and supported the
philosophical amorality espoused by Niccolo Machiavelli in his political treatise,
“The Prince”. Machiavelli’s contention that virtually any action taken by a ruler to
preserve and promote the stability and the prosperity of his domain was inherently
justifiable. Thus, the employment of violence, murder, deception and cruelty toward
achieving these ends cannot be ruled out in so far as the ends justify the means.”
This today has become, virtually, the universal handbook on how to organise a
‘Government’, and ultimately justifies so many unsavoury Government actions,
which in turn, are replicated by anti Government movements. The inevitable result is
explicitly explained by the contemporary, Vincenzo Vinciguerra, a participant in the
formerly secret US –NATO program, codenamed “Operation Gladio”.
.“Governments have to attack civilians, the people, women, children, and unknown
people far from any political game. The reason is quite simple – to force the people to
turn to the state for greater security. This is the political logic that lies behind all the
massacres and the bombings which remain unpunished, because the state cannot
convict itself or declare itself responsible for what happened."
I have long espoused the notion, whether we believe it or not, our lives are
governed by philosophy, and the fundamental philosophy of a society should be
the foundation of its Constitution.
Each of us; whether we recognise it, whether we apply it, and even when we don’t
know it, - conduct our affairs on the basis of a philosophy.
Philosophy, when it is all said and done, is nothing more than an idea – a concept –
a suggestion of how we should live our lives. As a Human Being, we have the
ability to choose any philosophy we like in determining how we want to live.
For some people it is OK to lie, cheat, steal and even murder if it is their best
means of surviving. Mostly though, and this includes the vast majority of us, we
simply accept what other people tell us is best for us.
A philosophy has no intrinsic worth unless it can be translated into some form of
practical application. A philosophy must become a policy before it can be
transformed into a system. But it is those philosophies, policies and systems that
relate to people and will affect the way they live. Only people – human beings –
can philosophise – and only people can translate philosophies into policies and
create systems – and only people can run the systems. If we want to live in a
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society – in a community – in a village - in a family – we have to have some system
in place to let us know how we should relate to other people in those groups.
Certainly, everyone could have their own system but, without some form of
common agreement and common understanding, the end result, to say the least,
would be chaotic.
The fundamental reason we live in a society is because of the mutual benefits we
get from cooperation, joint effort and mutual security. We should not live in a
society that has no benefits for our mutual wellbeing and happiness, but
unfortunately, through necessity rather than choice, many of us do.
It comes back to philosophy – which philosophy should we adopt as the basis for
establishing the systems that will make the type of society we wish to live in?
If we are going to set up a system to establish the standards by which we wish to
live together as a society, we need to ensure the primary purpose of that system is
the protection of individual ‘rights’ for each of its citizens. In truth, the only
‘rights’ that can exist are those which can be sustained. The concept of ‘rights’
always involves the recognition of a responsibility to respect the ‘rights’ of other
members of the society to which we belong.
Once we abdicate the responsibility for determining the philosophy that is ‘best’
for us and our society and accept, without question, the philosophy someone else
says is ‘best’ for us, we automatically establish a ‘power’ structure. Once this
structure is in place its practitioners, inevitably, develop a lust to maintain and
enhance the control over the people whom, rightfully, they should be there to
support and protect.
As far as I can see, if a society wishes to establish a set of standards aimed at
harnessing the cooperation and relationship between its members, it can only be
achieved in two ways. I would prefer to see this done by means of a mutually
agreeable harmonising approach through the rule of law and a Constitution. The
only other alternative is rule by force.
The problem lies in finding the best way to translate the desired philosophy into a
policy that can then be developed into a workable system for the benefit of people.
The solution has been found totally elusive throughout the, relatively, short
history of mankind.
Among the reasons society chooses to form a Government is to ensure a supply of
what they class as, “essential services”. In modern day parlance, these include
such things as a drinkable water supply, a workable sewage system, a continuous
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and reliable electricity supply, a similarly reliable postal service and a convenient
road and transport system. These are but a few of the essential services a modern
society needs in order to function, and is the reason society chooses to delegate the
responsibility to a Governmental system to provide these essentials. To the extent
that the private market can produce sensible and affordable services in selected
and designated parts of these essential services, they should be encouraged to do
so. The private market’s main area of interest, and responsibility, is in the
commercial enterprise of manufacturing, service industries, resource
development, sales and marketing.
In today’s world of Commercial businesses, everything is controlled by the bottom
line, and consequently, anything that hinders the all consuming profit motive is
abhorred. Things like regulations, unions and taxes. However, many citizens of a
society understand the need for regulations, unions and the things taxes, if
intelligently spent, can do for them. “If intelligently spent” are the key words in
respect to the way the Government of a monetary sovereign nation , such as
Australia, uses the resources and funding available to them. It is in this respect
that the people of a society will always get the Governments they deserve —
UNLESS — the people control their Constitution and define the fundamental
rules for regulating the way they will allow their Government to operate.
Only then will they have a chance to get the type of Government they WANT.”
CHAPTER 3
A STEP BACK INTO THE PAST
On reading this Australian Constitution, it became very obvious why it is never
taught in any school of the Commonwealth. Not only is it cumbersome and
difficult to understand, but it also bears no real relationship to the way we are
governed. It is certainly not a document that is written with the ‘people’ in mind
and nor does it make any attempt to expound a philosophy which could be used as
a foundation for building our Australian society.
It piqued my curiosity as how this document evolved and that led me into the
difficult and partially hidden path of early Australian Constitutional history. As it
turned out, this proved to be an intriguing excursion which delved into the minds
and lives of some of our, so-called, ‘Founding Fathers’. I learnt things about our
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early history that I had never known. This was no easy research as the following
information comes from a wide variety of sources, often contradictory.
THE STARTING POINT
While there were various advocates for the concept of a united Australia, nothing
much came from these early efforts. The British Government made an attempt in
1842 by appointing Sir George Gipps as Governor in Chief of N.S.W. and Van
Diemen’s Land. In 1849, a report from a Committee of the Privy Council in
London, suggested the creation of a position of Governor of Australia, authorised
to convene a General Assembly of Australia. In 1851, the Governor of New South
Wales, Sir Charles Fitz Roy, was in fact appointed the first Governor General of
“all Her Majesty’s Australian possessions”. However, shortly after 1855, when
Governments in N.S.W. and Victoria were inauguration, the office of Governor
General was discontinued.
Although the Federal concept was kept alive, there was a decided lack of
enthusiasm at the official level. Between 1860 and 1880, issues of concern arising
between the Colonies were dealt with through a series of Intercolonial
Conferences. At one of these Conferences held in Melbourne in December of 1880,
a motion was passed to draft a “Federal Council Bill” for subsequent submission
to a meeting in January 1881. The Bill was eventually abandoned through lack of
support from the Colonies.
It was not until 1883 that Federation again arose as a serious issue, prompted this
time by outside concerns. The fear that Germany had designs on New Guinea and,
with France coveting New Caledonia; it was sufficient incentive to initiate a
Federal Australasian Council. This Council eventually met for the first time in
Hobart, Tasmania, on the 25th
January 1886. Although the Council continued to
exist until 1899, meeting in alternate years, it achieved little to justify its existence.
OUR EARLY COLONIAL HISTORY
In 1855, the original colonial Parliaments of Victoria and New South Wales
operated on the 'Representative principle', but specifically in terms of
representation of interests. The estimated population of Victoria in 1855 was
260,000 people but only a certain number of MEN were allowed to vote, provided
they met the qualifications of property, wealth and residence. The 47,900 male
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voters represented 18% of that estimated population at the time. In Victoria, the
thirteen country seats averaged 250 votes each while the eighteen seats for
Melbourne and Geelong averaged 1350 votes per seat. The eleven additional
Goldfield seats averaged 1850 votes each. Only about 30% of the males in Victoria
were enrolled to vote for the Assembly and only 7% for the Legislative Council.
In 1855, Parliamentarians were not paid; hence, only men of means were in a
position to nominate. There was absolutely no concept of universal suffrage in that
day and age nor was the concept of representative democracy a viable or accepted
proposition. The Parliamentary system of the day was strictly controlled by vested
interests of the ruling class with few, if any, forays into the issues of the
unfranchised majority. To a large extent, this was in keeping with the customs and
traditions prevalent at the time rather than any sort of deliberate attempt to deny
people a say in Government. Unfortunately, these attitudes prevailed right
through to the end of the century and into the early 1900's, and consequently, had
a direct bearing on the formulation of the Australian Constitution.
SIR HENRY PARKES
In 1888, Sir Henry Parkes tried to have the name of the New South Wales Colony
changed to 'Australia' but was unsuccessful in his endeavours.
Probably, the real spark that ignited the fires leading to the first serious attempts
to discuss Federation were lit by Major General Sir Bevan Edwards. This was a
result of his report in 1889, on the need for a unified defence of the Colonies.
Undoubtedly, one of the key events in the history of Australia's journey towards
Federation was the Tenterfield Convention held on the 24th
October 1889. Parkes
took the initiative to start the ball rolling with his address to the convention.
Why he did this, has long been the subject of conjecture.
Parkes was always a man of vanity - he sought to glorify himself in a number of
ways and tended to be intolerant of opposition. He was also a man of questionable
morality, especially in terms of the Victorian age in which he lived.
In 1889, he was embroiled in a scandal because of his second marriage to the
mother of his illegitimate children. The Federation move offered the chance to
deflect some of the attention away from this furore. Even to the end, Parkes was
ambitious to receive the credit for setting the Federation movement in motion.
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Parkes died in 1896 and did not live to see his idea of Federation become a reality
but he has been accorded much of the honour he sought by being named as one of
the ‘Founding Fathers’ of the Constitution.
The Tenterfield Convention was promoted as the 'Federal Council of Australasia'
to include representative public men from each of the colonies as well as New
Zealand and Fiji. In all 12 representatives attended, including 2 from New
Zealand but, none from Fiji, as the nominee arrived too late to participate. Each
Colony was represented by a Politician and a Senior Public Servant.
It can be safely said that not one representative had any abiding understanding, or
commitment, to the concept of a ‘peoples' Democracy’.
This conference was, purely and simply, a starting point for the sharing of
'powers' between the Colonies and a “strong Central Executive”, with the initial
focus on some form of a common defence effort. The vital concern of each
Representative was to maintain the vested interests of their Colony. There was
absolutely no evidence of the general public's involvement or aspirations being a
driving force behind this undertaking. The quest for Federation started with the
Politicians and the Public Servants for the express benefit of the said Politicians
and Public Servants, and unfortunately, little has changed today. My research has
indicated that part of the motivation for Federation was the goal of the smaller
Colonies being able to benefit at the expense of the larger Colonies while, the more
populous Colonies saw the opportunity to gain greater control over an enlarged
'Nation'.
THE 1891 CONSTITUTIONAL CONVENTION
The 1891 Constitutional Convention was held in Sydney in March of that year. It
gave birth to the first attempt in drawing up a draft Constitution that might be
acceptable in forming a Federation of the separate Colonies. A Tasmanian lawyer,
Andrew Inglis Clark, wrote an initial outline for a Constitution and this became
the basis of the draft endorsed by the 1891 Convention. There was never any
concept for developing a unitary Government system for Australia - from the start
it was always conceived as a Federation of the Colonies. The Colonies agreed to
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transfer certain defined and specific "powers" to a Commonwealth Government
but to retain all other authority within their Colonial Legislature.
This over riding principle was to cause most of the difficulty in working out
exactly how the new Commonwealth Parliament would operate. On the one hand,
certain of the politicians, with aspirations towards the Commonwealth
Parliament, wanted to incorporate the English principle that supremacy of
Parliament must always reside in the House of Representatives. On the other
hand, those Politicians who saw their future in the State Parliaments demanded
that the concept of Federation was the main principle, and therefore, the Senate
must be on an equal footing with the House of Representatives. Essentially these
two points of view are in direct conflict with one another and this has proven to be
the case right through to the present day. Eventually, a compromise was reached
and a draft Constitution formulated, very much from a legalistic point of view,
due mainly to the four lawyer/politicians involved.
These dominant participants were, Sir Samuel Griffith from Queensland, Andrew
Clark from Tasmania, Alfred Deakin from Victoria and Charles Kingston from
South Australia. Not one of these four 'eminent' people had the slightest concept of
democracy, let alone any consideration of the people's involvement in the
Constitution. To these four lawyer/politicians, the responsibilities of the ‘people’
lay in two areas - obey the law and pay taxes. For the selected and qualified few,
they were given the privilege of voting for politicians, when allowed, and to vote at
Referendums when such were permitted.
All the rest of the deliberations in drafting a Constitution hinged, exclusively, on
devising a 'reasonable' system of Government that would provide adequate
control and flexibility for the politicians. From this point of view, they were highly
successful, as this first draft was eventually used as the starting point for the
second Constitutional Convention, held later in 1897.
As it happened, only one of the 44 Delegates at this first Convention foresaw how
the Senate, which was supposed to be a States house, would operate. Mr. John
Macrossen correctly anticipated that the Senate would be dominated by Political
Parties and the Members would therefore vote according to their Party dictates
rather than in the interest of their State. This is a clear indictment of the level of
foresight contained within the bulk of the Delegation, as well as being evidence of
the inability of the delegates to approach the whole Constitutional question with
any real measure of open mindedness.
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The fact that the 'power' and influence of Political Parties was clearly recognised
in 1891 is a further indictment of our, so called, ‘Founding Fathers’. They
steadfastly refused to acknowledge this reality in the Constitution. They refused to
address the foreseen problem of the Senate just as they refused to identify Political
Parties as an integral part of the Political system that needed to be set out in the
Constitution. By so doing, they lost the opportunity to create a meaningful
Constitution that accurately, and honestly, defined the true nature of the political
system they intended to adopt for Australia.
THE PEOPLES' VOICE
A ‘quaint’ proposal was put forward at the Convention to have the Governor
General elected to the position. Although this proposal did not extend to the
unheard of suggestion, of having the 'people' participate in this election, it was,
nevertheless, thrown out as an ‘ultra-democratic’ move and relegated to nothing
more than nuisance value. The response to this proposal is an indication of the
type of thinking prevalent at the Convention by most of the representatives, and in
particular, the leading representatives such as Sir Henry Parkes and Sir Samuel
Griffith. Representative Democracy, people's rights and involvement in the
development of the Constitution, were simply not part of the agenda and never
really came into the thinking of these, so-called, leaders of Society.
A further proposal was raised to have each Colony submit the 1891 draft
Constitution to their "people" - meaning the eligible electors - for a vote.
This was very quickly shot down in flames. In the interests of 'caution' and 'tact',
it was stated that such a proposal was far too risky, because of the 'people’s' lack
of understanding about the issues involved. Again the attitudes of our ‘Founding
Fathers’ becomes clear - the Constitution was not an issue of concern to the
general public - it was a political document specifically for the control and benefit
of the politicians and lawyers.
Unfortunately, this same attitude has persisted right through to the present day as
is proven by the fact that the politicians have jealously guarded their assumed
monopoly for initiating amendments to the Constitution.
DR. JOHN QUICK
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Following the 1891 Convention, enthusiasm for Federation waned within the
various Colonial Parliaments. Parkes lost Government in Oct. 1891, and to a large
extent, became a spent force in the Federation debate. Up to this point, Federation
was driven almost exclusively by political interests, and to a lesser extent, by
economic interests of the wealthier members of society. There was never any
significant interest from the general population, and indeed, the politicians were at
pains to ensure things stayed that way.
When Parkes faded from the scene, Edmund Barton took up the quest with a
personal campaign to broaden the interest in Federation beyond the bounds of
Colonial Parliaments. His target was the Murray Valley area where problems of
border Customs and trade loomed large. The outcome of Barton's efforts
eventually resulted in the formation of some 15 branches of the Australian
Federation League. As a result of this interest, a conference was held at Corawa in
the Riverina on the 31st
July and 1st
August 1893. This conference was attended by
many of the interested parties as well as politicians from Sydney and Melbourne.
One of the aims of the conference was the development of a draft Constitution.
Samuel Griffith, the Premier of Queensland, chaired the drafting committee and
controlled every aspect of the drafting process. He is credited with re-drafting the
document even before the convention got underway.
At the conference, Dr. John Quick raised a novel and unprecedented proposal.
He proposed that each Colony should pass an Act calling for the election of
Representatives to attend a statutory Constitutional Convention. He further
proposed that, if this Convention were able to produce a draft Constitution for a
Federated Australia, this draft be put to referendum in each of the Colonies before
adoption. Putting the draft Constitution to referendum was an unprecedented and
profound departure from the political customs and concepts of the day. It
certainly did not advocate anything like universal male suffrage and certainly did
not countenance giving any vote to women.
It was, however, a major step towards a truer Democratic process and placed Dr.
John Quick in the forefront of reform, amply justifying his place as a real ‘Father
of the Constitution’. This ‘novel’ proposal was eventually adopted by all the
Colonies except Queensland. It became the basis of representation at the second
National Australasian Convention.
THE SECOND CONSTITUTIONAL CONVENTION
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This second Constitutional Convention commenced in Adelaide in March 1897. It
continued over the next 12 months with sessions in Sydney and, finally, wound up
in Melbourne in March 1898. Each Colony sent along 10 'elected' representatives
whose efforts resulted in a draft Constitution, based largely on the original draft
emanating from the 1891 convention and incorporating most of the Griffith
amendments. This draft Constitution was put to Referendum on the 3rd
and 4th
June 1898 in each Colony, except Queensland and W.A., both of whom declined to
participate.
A 'yes' vote was achieved in each of the other Colonies, but N.S.W. did not achieve
the 80,000 majority decreed by Parliament for acceptance. Thus it was, this first
attempt at a 'popular' referendum floundered. The result was received with mixed
feelings. For some it was a justification of their stand that the Constitution was not
a proper subject for the general population. For those on the ‘losing’ side it was a
disappointment that the opportunity for ‘public’ involvement (albeit on a
restricted and qualified scale) was seen as unsuccessful.
Unfortunately, the pattern set for this Referendum has been used repeatedly for
every Australian Referendum since. The ‘public’ are offered a simplified question
on which to register a 'yes' or 'no' vote. This avoids the necessity of having to
provide the complete details of the proposed amendments and allows for some
superficial and simplistic explanations of the pros and cons of the proposal.
Consequently, the majority of the voters are never given a full understanding of
the implications and consequences likely to result from their vote.
This was the case in 1898 when the eligible voters were asked to vote either for or
against Federation, and thereby implying, they accepted the proposed Draft
Constitution if they voted for Federation. There is very little evidence that the
nitty gritty of the Draft Constitution was ever widely disseminated, or that
detailed discussion of the document, as a whole, was either encouraged or
undertaken. The fact was, the eligible voters were not asked to either approve or
disapprove the Draft Constitution itself - the Constitution was taken as fait
accompli - all the voters had to decide was whether they wanted Federation or not.
When the Referendum proved unsuccessful, it provided the opportunity for the 5
Colonial Premiers to meet and redraft what they considered unsatisfactory.
Consequently, they got together in January and February of 1899 and drew up
their amendments to the draft Constitution. Of the several amendments proposed
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by N.S.W., five were adopted, with one from Queensland and none from W.A.
Mostly, these amendments were beneficial to the interests of N.S.W. as this was the
most populous Colony and perceived to have the most at stake. Without further
reference to any form of National Convention, the Premiers decided between them
that a second Referendum should be held.
The subsequent Referendums were held in the Colonies between February and
September of 1899. Queensland agreed to participate on this occasion but W.A.
still declined. The second Referendum succeeded in gaining the approved number
of affirmative votes in each of the participating Colonies. The revised draft
Constitution was then delivered to the Westminster Parliament in London by a
five man delegation, comprising of a representative from each of the Colonies
involved.
The English Government demanded, and got over 60 amendments to the Draft
before they were prepared to submit it to their Parliament. These amendments
dealt with the issues raised by W.A., directly to Mr. Joseph Chamberlain, the
Secretary of State for the Colonies, as well as issues dealing with appeals to the
Privy Council in the U.K. The latter amendments were deemed necessary for the
protection of British interests in Australia, especially, in respect to financial issues.
The Australian delegation had no choice but to agree to these changes and the
amended draft Constitution was finally incorporated into a comprehensive Bill
named, "The British Colony of the Commonwealth of Australia Constitution Act
1900 (U.K.). This Bill consists of nine parts of which the ninth Part is headed ‘The
Constitution’. This ninth Part of the Act is divided into eight Chapters, plus an
Introduction, and 128 separate Sections.
The ‘eligible’ Australian people were never asked to approve the altered document
before it was enacted by the British Parliament on the 9th
July 1900.
This revised and unapproved version was subsequently proclaimed on January 1st
1901, making Australia a Federated colony of Britain. Fundamentally, the present
Constitution is an agreement between the, so called ‘Original States’, (and this
means the Parliaments of these States, or Colonies as they then were) to relinquish
some of their ‘powers’ in favour of the formation of a central ‘power’ entity to be
known as the Federal Commonwealth Parliament. What is important here is to
recognise, exactly, the origin of this ‘power’ referred to by the State Parliaments,
and the Constitution. All the early Colonial Governments worked on the
assumption that ‘power’ was vested in the Government. What this assumption
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implied was that it was the Government’s prerogative, the Government’s right
and the Government’s responsibility, to ‘control the people’. Even with the advent
of self governing Colonies, this same philosophy was carried over to the newly
formed Parliaments. There was no universal franchise in those days and, basically,
only property owners were eligible to vote on certain occasions.
The other factor that reflected the thinking of Parliamentarians was that, apart
from the Premiers and Speakers, all the rest of the Members were unpaid. As a
result, only men of independent means could afford to stand for Parliament. Their
interests, therefore, lay mainly in looking after their own welfare and class
privileges rather than Society as a whole. It is this sort of background, coupled
with the traditional class outlook imported from their English heritage, which
fostered the view of the supremacy of Parliament in terms of the ownership of
‘power’.
THE QUESTION OF ‘POWER’
When we talk of ‘power’, we are talking about it in a political sense. As stated
above, the bottom line in respect to political ‘power’ is, always, control of people
and thus, control of the society. It is nothing more and nothing less.
‘Political Power’ is a meaningless term without people!
I believe this question of ‘power’ can only be addressed on the basis of philosophy.
A society has to decide whether it wishes to exist on the basis of ‘rule of law’,
anarchy, or ‘rule by force’. In using the term ‘Society’, I mean the people – not the
politicians, not just the ruling classes and certainly not the financial elite.
In theory, Democracy is supposed to be based on ‘rule of law’, but history, both
past and present, has shown that Democracy is no guarantee that ‘good’ law will
prevail. As has been proven time and time again throughout History - ‘Power’
corrupts and absolute ‘Power’ corrupts absolutely’. There are fewer better examples
of this when Justice Lightman admitted that the Australian Prime Minister, John
Winston Howard, flew to London and put pressure on him and the United
Kingdom’s Court. This ‘incident’ occurred as a result of an appeal presented on
behalf of a group of Australian citizens and heard between January 31st
and
February 1st
2005. A legal team, headed by an eminent British Queen’s Council
(QC) and including Australian Barrister, David Fitzgibbon QC, appealed against
a decision by Master Bencher Bowman, of the Chancery Division of the British
High Court. The original case was a challenge regarding the validity of Her
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Majesty's title as Queen of Australia and the issue of Letters Patents for the
appointment of the Australian Governor Generals.
In late June of 2004, Master Bencher Bowman handed down an, as-yet
unpublished High Court judgment, acknowledging that there may be procedural
faults in the vice-regal appointments process but it was an Australian issue and
not within the jurisdiction of the British Courts. During the appeal hearing the
British Attorney General submitted that the allegations were embarrassing and
should be struck out even though no legal argument was presented to justify this
request.
Justice Lightman dismissed Mr. Fitzgibbon's appeal in the face of the pressure
from John Howard, the then Australian Prime Minister, and was later reported to
say that he failed to do the right thing.
‘Power’ can be used for ‘good’ but, mostly, it is used for ‘evil’ and again, this is
amply proven historically. Governments and religion have been responsible for
more bloodshed over the ages than any other element of society.
THE CREATION OF THE FEDERATED COLONY OF
AUSTRALIA
Contrary to what is currently taught and believed by a great number of people,
our Founding Fathers were quite clear in their understanding that, to quote
Henry Parkes, ‘Federation is not independence. It is a chance for the colonies more
effectively to unite with the Mother country in forming an Empire such as has never
yet been formed’.
This view was also firmly held by the other prominent participants in the
Federation movement including, Alfred Deakin, Samuel Griffith, John Forrest
and Charles Kingston. The Philosophy of Federation was, therefore, completely
divorced from the question of Independence and also from the question of
Democracy. With the advent of the First World War in 1914, King George V
officially declared war on Germany on behalf Great Britain and its Dominions,
including Australia.
It is quite deceitful to describe the Australian Constitution as a ‘democratic’
document because; Democracy was never its motivation, nor its aim. The fact that
certain ‘democratic’ practices have developed over the years, owes much more to
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the Australian character than to any particular foresight, or ‘divine' wisdom, on
the part of the ‘Founding Fathers’.
One of the most telling aspects about the Australian Constitution is the fact that
Dr. Quick and Sir Robert Garren published their ‘Annotated Constitution of the
Commonwealth of Australia’ in 1901, and did so in 1008 pages. Obviously, any
constitutional document that requires 1008 pages to help explain its meaning is
very poorly written. Although this volume has often been used as a reference, in
truth, it is primarily a collection of ‘opinions’ related to the colonial and imperial
thinking of the day. As with the Constitution itself, that thinking bears little
relevance to the political reality of today. Both of those authors were immersed in
the Westminster system and they viewed the words in the Constitution as
figurative in respect to defining their meaning in the context of that system.
As for the constitution itself, it is largely devoid of meaningful definitions for most
of the terminology and many of the entities created.
CHAPTER 4
THE QUEST FOR INDEPENDENCE
As far back as 1850, there has been a voice in Australia advocating Independence
along Republican lines, but it had never been particularly popular or well
organised. The idea burst into flower in the latter part of the 19th
century and
produced some notable examples, not the least being Henry Lawson’s Journal,
‘The Republican’. A number of other journals followed between 1887 and 1890,
only to flounder in the face of the emerging push for federation.
Independence involves severing the legal ties with England as distinct from having
the separate colonies come together as a federation. Up until 1986, when the
Australia Act was enacted, Australians were still considered to be British subjects
and Britain was not a ‘foreign’ country.
Many people today believe Australia is an Independent nation, but this idea of
independence is actually a rather complicated, unfinished and unsatisfactory
story.
In 1850, the British defined their settlements in Australia as Colonies, and in 1901,
granted the unification of these colonies into the Commonwealth of Australia. In
1907, the British Parliament changed Australia's status to that of ‘the British
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Dominion of the Commonwealth of Australia’. At the 1911 Imperial Conference,
when discussing an issue about treaties involving the Dominions, Sir Wilfred
Laurier asserted that giving the Dominions the right to assent to a treaty was not
an argument for separation and, Mr. Andrew Fisher, the then Prime Minister of
Australia, agreed. The unquestionable proof that our subservient status to Britain
existed through to 1914, comes from the fact mentioned above, that King George
V declared war on our behalf as the British Dominion of Australia.
The First World War is portrayed as a catalyst that led to a virtual organic
transformation of Australia from its Colonial/Dominion status to that of a,
supposedly, Independent Nation. This opportunity came about without any
concerted effort or initiative from the general public. In fact, right up to this day,
the public are generally unaware that any possible transformation could have
taken place, let alone when and how it might have occurred. They are not alone in
this field as this same, supposed, lack of knowledge and understanding applies to
most politicians and virtually all the legal fraternity, right through to the High
Court of Australia.
As a preliminary to the formation of the League of Nations, an Imperial War
Conference was held in London during 1917. Britain agreed, with the support of
Woodrow Wilson, the President of the United States, that Prime Minister Hughes
and his Deputy, Sir Joseph Cook, should sign the League of Nations Treaty on
behalf of Australia, as an independent sovereign Nation. This invitation to join the
League of Nations as a founding member in 1919, should have been the vehicle
that changed our status from a Dominion of Britain to the independent Nation we
were supposed to be.
The League of Nations Treaty was signed on June 28th
1919, at Versailles in
France, and Australia, theoretically, took its place in the world as an independent
Nation. On September 10th
1919, Billie Hughes addressed the Commonwealth
Parliament declaring, ‘Australia has now entered into a family of nations on a
footing of equality. Australia has been born in a blood sacrifice.’
This speech was delivered in the course of ratifying the Treaty of Versailles in the
Commonwealth Parliament, but apart from one unsuccessful attempt, it remains
clear that neither the people nor the Australian Parliament, understood the true
impact of this statement at the time. On January 10th
1920, the League of Nations
became part of International Law with Article X of the Covenant of the League of
Nations guaranteeing the sovereignty of each of its 29 members.
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Hughes and Earl Page did make an attempt to establish Australia’s independent
sovereignty by introducing a Constitution Bill in Parliament in 1921, but in the
face of a hostile reaction, had to withdraw it in December of that year. These are
indisputable historical facts.
Unfortunately, it is at this point in our history, when all the ‘great’ minds of our
‘supposedly’ infallible legal fraternity, combined with the ignorance of the
Politicians of the day, failed to legally formalise our new status. Not only did the
politicians omit formalising our independence from Britain they also,
conveniently, or ignorantly, omitted to inform the general public of Australia that
they were now, supposed to be, officially independent.
That our status, vis a' vis Britain, had changed was recognised, up to a point, by
the next Prime Minister, Stanley Bruce. In 1923, he told the British Government,
‘We have to try to ensure there shall be an Empire foreign policy which, if we are to
be in any way responsible for it, must be one to which we agree and have assented. If
we are to take any responsibility for the Empire's foreign policy, there must be a
better system, so that we may be consulted and have a better opportunity to express
the views of the people of this country. We cannot blindly submit to any policy which
may involve us in war.’
Again, it appears obvious that neither Bruce or his Government, nor anyone else
in the Commonwealth Parliament, had any conception of what was required to
cement the true significance of Australia's altered status emanating from
membership in the League of Nations. Independence at that time in history was
never a publicly oriented goal nor was it an issue motivated by public or political
sentiment, just as it was never the underlying purpose of membership with the
League of Nations. In a technical sense, Australia gained her pseudo Independence
as a Sovereign Nation by default. Very few people at that time, or now, recognised
the real significance of this event or have had the initiative to take the proper legal
action required to certify this independence.
The fact that it was not recognised for what it truly was, and the fact that it was
never properly and legally formalised, in no way detracts from the reality that it
did happen and we could have become an independent and sovereign Nation,
effective from June 28th
1919.
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The late Professor G. Clements, Eminent UK QC and emeritus Professor in Law
at Cambridge University clearly understood the true legal position of the
Australian Constitution when he remarked,
‘The continued usage of the Australian Constitution Act (UK) by the Australian
Governments and the judiciary is a confidence trick of monstrous proportions played
upon the Australian people with the intent of maintaining power. It remains an Act
of the United Kingdom. After joining the League of Nations in 1919, Australia
became a sovereign nation. It had no further legal power to use, alter or otherwise
tamper with another nation’s legislation. Authority over the Australian Constitution
Act lies not with the Australian government nor with the Australian people, it rests
solely with the UK. Only they have the authority to repeal this legislation ...’
The fundamental problem with Constitutions is that they are, whether we like it or
not, an expression of the basic philosophy adopted by the people of a Nation. In
our case, the Constitution is very much a colonial Document expressing colonial
attitudes of the era, and attitudes still retained today by a lot of the Australian
citizenry. This is evident from the subservient attitude people hold towards the
anachronistic monarchical system, even though the Queen has stated she has
absolutely no authority over Australian affairs. Until people wake up to this and
decide they want a change - and more particularly – that they want a say in
developing this change – then we will be left with the abortion of a document we
currently have.
If one reads the Constitution literally, it really sets up a totally dictatorial regime
with the Governor General being commander in Chief of the Armed Forces and
given the power to assemble or prorogue Parliament at any time, plus withholding
assent to legislation “at his leisure”.
This is not how a proper Democracy is supposed to work.
There is no mention of a Prime Minister in the Constitution, nor any mention of
Political Parties, and it specifically states that it is the Governor General who
selects his undefined “Government in Council” (technically the Cabinet, but in
reality, something else) to “advise” him. Very little in the Constitution works the
way it is pronounced – the way Parliament and the Government operate is based
almost entirely on the code of unwritten “Conventions”, developed over the
centuries by the politicians and Lawyers to suit themselves.
26

All our “Founding Fathers” were completely aware of this, as they were aware of
the effect of Political Parties and the powers and influence of a Prime Minister.
They chose to ignore all of this and then write in 39 clauses allowing parliament to
change the Constitution at their whim and bypassing the need of going to the
people. In this respect, the American Constitution is no different – and it is
because of this sneaky underhand effort by Politicians, who wrote both
documents, that the Constitutions have been manipulated to the extent they have
been.
THE AFTERMATH AND THE FARCE
The subsequent actions and in-actions of all Prime Ministers since 1919 represents
an ongoing dereliction of their proper duty which has now resulted in a
monumental legal quagmire.
In the intervening years, a number of attempts have been made to throw a cloak of
legality over the events of 1919, but always under the carefully hidden subterfuge
of refusing to acknowledge our independence. Apparently, the very document
authorising the delegates of the Dominions to be appointed as plenipotentiaries,
that is, as representatives of fully independent Nations, is said to have been written
as a secret document with a nominal 30 year non-disclosure attachment. If this
document does exist, I have been unable to locate it. The first farcical attempt to
try and formalise Australia’s ‘independence’ from Britain was the Statute of
Westminster, drawn up in 1931. This was a result of various resolutions passed by
Imperial Conferences in 1926 and 1930, and because it was a statute that had to be
passed by the British Parliament, it is further proof that Australia remained under
the auspices of Britain. Legally, the Statute of Westminster was an ‘International
arrangement’ involving Australia, Canada, South Africa and New Zealand, and
under Article XVIII of the League of Nations Covenant, it had to be registered
with them to become valid.
This was never done for obvious reasons!
The Australian Government, eventually, adopted specific parts of this Statute in
1942, but the fact that the Statute itself was never registered with the League,
meant that the Adoption Act, as passed by the Commonwealth Parliament, was
also invalid in law. The Adoption Act itself is further flawed by virtue of its
reliance on Royal Assent by the Queen of England who, in terms of Article XVIII
of the League of Nations Covenant, represented a foreign power. Hypocritically,
27

Britain conceded it no longer had any jurisdiction over the, supposedly, sovereign
and independent Commonwealth of Australia, but still required legislation to be
approved by the Queen’s representative in Australia.
In reality, all these manoeuvrings were essentially futile in a legal sense because,
the only proper, and legal course of action, was for Australia to adopt a new
Constitution completely independent of the United Kingdom.
Given the day and age in which the really monumental events of 1919 occurred,
and even though they occurred virtually by accident, the philosophic foundations
of the political thought at that time, precluded the possibility of drafting a new
Constitution. Such an action proved beyond the conception or political reality of
the day. The mentality of the times would never have been able to stretch to
divorcing our ties with the ‘Mother country’. Consequently, future generations
are left to sort out the mess.
THE UNSEEMLY CONTRIVANCE
It is hard to fathom the motivation behind the negotiators at the Imperial
Conferences of 1926 and 1930 in developing the original resolutions leading up to
the formulation of the Statute of Westminster. In one stroke of the pen, they have
tried to abolish centuries of inherited traditional history that forms the backbone
of every safeguard built into the development of British Common Law. Clause 2 of
this Statute is an absolute abomination of the first order.
The inclusion of the words ‘No law and no provision of any law made after the
commencement of this Act by the Parliament of a Dominion shall be void or
inoperative on the ground that it is repugnant to the law of England ----- etc.’
Effectively, this denies every participating Dominion protection of the Great
Charters of British Common Law history. It is one thing to proclaim
Independence, which is what the Statute was purporting to do, but it is quite
another thing to act like spiteful parents and deny the peoples of these new,
supposedly independent nations, the rights and freedoms won so arduously over
the centuries by their forebears.
This Clause should have been written along the lines ‘No law and no provision of
any law made after the commencement of this Act by the Parliament of a Dominion
shall deny, or rescind, the principles laid down in the Great Charters of British Legal
heritage unless approved at referendum by the people of the Dominion’.
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The great traditions involved in the development of British Common Law heritage
represent the best foundation of any legal system in the world today.
They are far too precious to jettison and put at risk the inherited rights and
freedoms of the peoples' without attempting to include some guarantees. British
Law is founded on their Great Charters, such as, the Magna Carta, the Bill of
Rights of 1689, Habeas Corpus, Due Process of Law, and numerous others.
Together, they form the basis of Britain's unwritten Constitution and should be, to
all intents and purposes, untouchable by any contemporary British or Dominion
Parliament.
Not only did this Statute of Westminster significantly alter the Australian
Constitution but it also altered each of the State Constitutions. In order for the
Statute to become valid it had to be submitted to a nation wide Referendum as per
Clause 128 of the Constitution. As every legal and political authority knows, this
was never done and that makes the Statute ‘ultra vires’ as far as its Australian
legal validity goes. The High Court, the legal fraternity and every Prime Minister
since 1942 have been derelict in their duty by refusing to acknowledge that this
statute does attempt to alter the Australian Constitution, and therefore, must be
presented to the Australian people for their judgement.
CHAPTER 5
THE UNSAVOURY CREATION OF THE QUEEN OF AUSTRALIA
The problem of Australia’s quasi independence from Britain has been an
unresolved dilemma for all Governments since 1919.
Australia has a Royal Styles and Title Act which, in 1953, clearly identifies the
Monarch as, ‘Elizabeth the Second, by the Grace of God of the United Kingdom,
Australia and Her other Realms and Territories, Queen, Head of the
Commonwealth, Defender of the Faith’.
As mentioned above, according to Article XVIII of the League of Nations
Covenant, the Queen is the Head of a ‘foreign power’ and, neither she, nor her
Government, can have any jurisdiction over a, supposedly, independent Australia.
This is clearly a ludicrous situation because; we were still tied to Britain’s apron
strings, as the 1986 Australia Act proves.
Even Justice Kirby is on the record in the Sue v Hill case before the High Court in
1999, with his remark, ‘I know this is an eccentric and personal view, but I have
29

always wondered what the UK Parliament was doing enacting law in 1986 in relation
to Australia.’
In 1973, somebody came up with the rather ridiculous idea to have the politicians
amend the 1953 Royal Styles and Title Act by renaming the Monarch and creating
a Queen of Australia. They purported to do this at the stroke of a pen, without any
formal coronation or swearing-in ceremony. However, then as now, this approach
is fraught with problems because, any monarch so appointed, needs to be
coronated and to swear allegiance to the people of Australia – or the Constitution,
at the very least. For Queen Elizabeth II of the UK to do this would require her to
swear allegiance to two separate countries and place her in an intolerable position
as far as her British subjects are concerned. Of course, such a coronation never
happened, even though, the 1953 Act was amended by Parliament to become the
1973 Royal Styles and Titles Act. Even if the change of the Queen’s title to ‘Queen
of Australia’ had been ratified at Referendum, which it never was, and the
Constitution duly amended, it still could not establish Australia’s independence. A
further complication occurs in relation to the 1953 Royal Powers Act, which still
relates to Queen Elizabeth II of the UK as the legitimate heir to Queen Victoria,
who assented to the original Constitution Act. The 1953 Royal Powers Act has
never been amended to cover the fictitious ‘Queen of Australia’.
This whole farcical exercise does raise a number of other questions. How can a
group of, supposedly, intelligent and rational ‘commoners’ believe they can create
a royal personage simply by writing it down on a piece of paper?
Did they stop to think for a moment, what was to prevent any future Government
from declaring their Prime Minister a King or Queen of Australia?
The whole exercise is so ludicrous it should be considered a joke in very poor taste
if it wasn’t taken so seriously by the people who should have more sense.
Clearly, as mentioned above, that change of title represented another fundamental
amendment to the Constitution and needed to be put to referendum to establish its
validity.
If this were, in any way, a legitimate action, it opens up a legal can of worms
because; the British Crown is dependent on the Parliamentary Act of Settlement
of 1701 for its legitimacy.
Far from being a Monarchy based on "divine right", the British Monarchy is
completely dependent on an Act of Parliament that can be repealed at any time by
30

the Government of the day. What would Australia’s position be if, one day, the
UK decided to become a Republic and jettison the Royal family?
However, apart from that hypothetical question, the Kings or Queens of England
do have some historical legitimacy to support their existence, but a Monarch of an
independent Australia has no such legitimacy. The legal fraternity have bent over
backwards to accommodate this ridiculous action by their political masters and
they have done so by rejecting any semblance of commonsense. They have
resorted to the mysticism of legalese and tried to shroud the issue in an
impenetrable cloak of complex and misleading jargon. The truth of the situation is
that this 'Queen of Australia' does not have permission to hold the Executive
Authority necessary to make appointments and legally validate any Australian
laws. She certainly was not given that permission by the Australian people, and
she does NOT have that permission under the UK Act, the Commonwealth of
Australia Constitution Act (UK) 1900.
Even under specific UK legislation, she is only allowed to be known as the Queen
of another country if the foreign policy of that country is controlled by the United
Kingdom Parliament.
Quite clearly, Australian foreign policy is NOT controlled by the UK parliament
so, the Queen CANNOT be known as the Queen of Australia under requirements
of her own laws. To any normal commonsense person, the issue is simple; nobody
in this day and age, can create a Monarch at the stroke of a pen. Even if they
could, it would amount to a major change to the existing Australian Constitution,
and as mentioned above, that could only be legitimised through a Referendum.
CHAPTER 6
THE QUESTION OF THE GOVERNOR GENERAL’S
APPOINTMENT
As stated above, every Australian Government since 1919 has faced this
unsatisfactory dilemma regarding our supposed independence, and it remains
unresolved, even today. As with so many other anomalies relating to the
Australian Constitution, the appointment of the State Governors and, more
importantly, the Governor General, have to be made under the authority of what
is called, a Letters Patent, signed by the Monarch of the Realm. All appointments
31

to the office of Governor General up to 1984 have been made on the authority of a
Letters Patent issued by Queen Victoria in 1900.
Of course, this procedure is not specifically included in the Australian
Constitution as it follows customary British practice. Although it is probably
based on some obscure British law, it seems to be more in the realm of the
unwritten conventions that come into play when an anomaly occurs.
When Queen Victoria died on January 22nd 1901, she created a legal minefield
because; the Letters Patent she issued became invalid. A new Letters Patent,
signed and sealed by her successor, should have been issued, but that was never
done. As a result, no Letters Patent affecting Australia have been issued by a
lawful Monarch since. Currently, Queensland falsely relies on a Letters Patent
issued by Queen Victoria in 1859.
The legitimacy of the appointment of State Governors and the Governor General
are critically important because, these people have to assent to any legislation
before it can become law. In 1984, Bob Hawke, the then Prime Minister, went to
Balmoral Castle and ‘advised’ the ‘Queen of Australia’ to endorse an Executive
Instrument in the form of an Australian Letters Patent. Hawke was certainly
aware there was a question about the legitimacy of the Governor General’s
appointment and the lack of proper legal authority. He asked the fictitiously
created Queen of Australia, to use the Great Seal of Australia and authorise a new
Letters Patent. This was an attempt to avoid the risk of having the Governor
General’s appointment challenged. Kevin Rudd subsequently visited the said
‘Queen’ in 2008, to revoke the 1984 Letters Patent and replace it with one that
allowed the appointment of a woman as Governor General.
Some people claim there is a legal problem with the use of the Great Seal of
Australia when the Queen is not present in the country. On a number of occasions,
various Attorneys General have been asked to provide evidence and authorities
that the Queen, ‘in right of Australia’, can use the Great Seal of Australia when
she is not personally in the country. Apparently, this is contrary to the Royal
Powers Act, although the Great Seal of Australia doesn’t get a mention in that
Act, or anywhere else in the Constitution, for that matter. To date no evidence has
been forthcoming or the queries answered. That problem is apart from the fact
that the 1953 Royal Powers Act still relates to Queen Elizabeth II of the UK and
has never been amended to cover the fictitious ‘Queen of Australia’.
These facts are not in dispute, but have been carefully hidden from public
32

knowledge, not only by the politicians, but also, by the legal fraternity, right
through to the High Court of Australia. The situation is deliberately
misrepresented in the interests of maintaining the status quo, as observed by
Professor Clements in the quote above.
All this is extremely important because, if there is any question about the
legitimacy of the appointment of the Governors General, past and present, it
questions the legitimacy of every law to which they have given their assent.
This was the reason for Mr. Howard’s rushed trip to the UK in 2005, to intervene
and pressure Mr. Justice Lightman to dismiss the Fitzgibbon challenge.
As an interesting aside on the subject of Letters Patents, the King of England,
William IV, in his proclamation of 1836, placed an all-important condition upon
the settlement of South Australia with the words:
‘PROVIDED ALWAYS that nothing in these Letters Patent contained shall affect or
be construed to affect the rights of any Aboriginal Natives of the said Province to the
actual occupation or enjoyment in their own Persons or in the Persons of their
Descendants of any Land therein now actually occupied or enjoyed by such Natives.’
As with so many other things in the early history of Australia, this condition was
simply ignored and never enforced in any practical way.
ADDITIONAL FARCICAL ATTEMPTS
Unfortunately, most people labour under the misconception that the Australian
Constitution is somehow a safeguard for the Australian people. Very few people
seem to have any idea about the so called “original spirit and intent” of the
Constitution.
In essence, as mentioned above, it is nothing more than a agreement drawn up
between the then Colonies as to how they might relinquish certain of their
“powers” – meaning “powers to control people” – and transfer these to a central
Government. There is absolutely no concept of this document being in any way a
declaration for the establishment of a democratic society – in fact, the very
thought of applying any significant democratic principles to the Constitution was
strenuously, and successfully, argued against.
The only real safeguard the people of Australia have against their Politicians is
that contained in the various State Constitutions. Under the Federation system,
each State Constitution remained the primary law for the individual citizens of the
33

Commonwealth and each State Constitution, without exception, was limited to
making laws that were not “repugnant to the laws of Britain”. What this meant
was, no State could make a law that was in conflict with the Great Charters of
British History and the huge body of British Common law built up over the
centuries. Those important charters, as listed above, included the Magna Carta,
the Writ of Habeas Corpus and the Bill of Rights amongst others. All these
milestones in the development of British Law applied equally to every Australian
citizen. The States could not, and did not, relinquish this responsibility to the
Commonwealth Govt. through the adoption of a Commonwealth Constitutional
agreement.
The ongoing legal and political disquiet over Australia’s true position, vis a’ vis,
the United Kingdom, led first, to the Statute of Westminster 1931, which was
eventually adopted, in part, by Australia in 1942. That Act did try to remove the
safeguards covered by British Common Law, but as it was never endorsed at a
referendum, its provisions are, in truth, ultra vires. A subsequent attempt to
clarify Australia’s status was initiated with the creation of the Australia Act of
1986. In June 1982, Malcolm Fraser began discussions with the State Premiers on
ways to overcome, what was still recognised, as an anomalous relationship with
the UK. Discussion continued under the new Prime Minister, Bob Hawke, till June
1984. The outcome was another agreement to radically alter the Australian
Constitution by creating the Australia Act of 1986. This required each State to
pass individual Acts and alter their own Constitutions. It was then necessary to
arrange a simultaneous proclamation by the Queen before the changes could
become effective.
While the proclaimed purpose of this Act was an attempt to try and make
Australia appear an independent nation, it could not become effective until it was
passed in the British Parliament. This was clearly a ludicrous situation and one in
which anyone, with a touch of commonsense, must realise was a total deceit. Also,
by confirming the Westminster Act and endorsing the ‘right’ of the States, and
thereby the Commonwealth, to allow laws “repugnant’ to British Law, this Act
perpetuates the treachery of denying the people’s common law heritage. It also
represents one of the most fundamental changes to the Australian Constitution,
and as a result, in spite of what politicians, lawyers and Judges may say; the Act
cannot become law in this country until endorsed through a Referendum. What is
most appalling is the fact that the legal profession has continued to conspire with
34

the Government and have never seen fit to mount any legal challenge against the
acceptance of the Australia Act.
The Australian Government used the Constitution’s innocuous sub-Section xxxviii
of Section 51 to apply this change.
That Section reads, ‘the exercise within the Commonwealth, at the request or with
the concurrence of the Parliaments of all the States directly concerned, of any power
which can at the establishment of this Constitution be exercised only by the
Parliament of the United Kingdom or by the Federal Council of Australasia’.
It is obvious to ‘blind Freddy’ that, eliminating the powers exercised by the
Parliament of the United Kingdom, after 86 years, is a major alteration to the
Constitution. As such, this new Act would have to go to Referendum in Australia
before it could become law, but that never happened. The other farce with this
1986 Australia Act, as mentioned above, was that it had to be proclaimed by the
Queen of Great Britain and passed in the British Parliament. How this can be
considered an Act of a ‘sovereign and independent nation’ is beyond rational
explanation.
But then, who ever considered politics, or the law, to be based on reason or logic?
Tragically, the High Court of Australia has made absolutely no attempt to
demand Parliament put the Act to a referendum of the people. Like the Statute of
Westminster, the Australia Act does, unquestionably, alter the Australian
Constitution and it is a complete dereliction of duty, bordering on treason, for the
High Court to accept it’s legitimacy in any way.
The other little interesting anomaly contained in Section 51 xxxviii is the reference
to a Federal Council of Australasia. Apart from the fact such a Council no longer
exists, it shows how outdated the Constitution really is. The Council did meet eight
times between 1885 and 1899, but has never been convened during the life of the
present Constitution.
CHAPTER 7
THE LUDICROUS EVOLUTIONARY THEORY
In spite of all the vain attempts to establish, and legitimise Australia’s
independence, everyone has refused to discard an Act of the British Parliament as
our Constitution. Eventually, some bright spark came up with the ludicrous
theory of Constitutional evolution. This theory expounds the ridiculous concept
35

that Australia and its Constitution have, over the period of their existence,
somehow, developed a will of their own and evolved into independent entities.
Even the Commonwealth Solicitor General, Mr. D. M. J. Bennett, QC, tried to use
this theory when he intervened for the Petitioners in the 1999 High Court of
Australia case, Sue v Hill. He suggested that Section 51 xxxix could be used to
advance the evolutionary theory of nationhood.
The following is part of the transcript from that case: (My emphasis added)
Mr Bennett. ‘The Royal Styles and Titles Act is an Act passed in 1973, part of the
process of recognition of the Queen in relation to Australia.
Gaudron J: Under what head of legislative power was that enacted?
Mr Bennett: I suppose 51 (xxxix), your Honour. It is incidental to the nationhood
power.
Gaudron J: The nationhood power is implied. There is no 51(xl), is there?
Bennett: No your Honour there is not.
Gaudron J: Does 51 (xxxix) take you the distance? It is either under the implied
nationhood power or it is not, is it not?
Mr Bennett: Yes. Your Honour, Section 51(xxxix) can be read, I suppose, as ‘any
power’ as including any or all powers’.
This is a fine example of how the High Court of Australia arrives at decisions
derived from ‘evidence’ based on supposition and implication.
As an assenting Judge in the above case, Justice Gaudron commented, ‘The
evolutionary theory is, with respect, a theory to be regarded with great caution. In
propounding it, neither the petitioners nor the Commonwealth identify a date upon
which the evolution became complete, in the sense that, as and from it, the United
Kingdom was a foreign power. Nor could they point to any statute, historical
occurrence or event which necessarily concluded the process’.
Justice Callinan added, ‘The great concern about an evolutionary theory of this kind
is the doubt to which it gives rise with respect to peoples' rights, status and obligations
as this case shows. The truth is that the defining event in practice will, and can only be
a decision of this Court ruling that the evolutionary process is complete, and here, as
the petitioners and the Commonwealth accept, has been complete for some
unascertained and unascertainable time in the past.
In reality, a decision of this Court upon that basis would change the law by holding
that, notwithstanding that the Constitution did not treat the United Kingdom as a
36

foreign power at Federation and for some time thereafter, it may and should do so
now’.
It is disappointing that Justice Callinan is only concerned that the ‘petitioners and
the Commonwealth’ accept this ridiculous theory in order to establish its
legitimacy and, at the same time, fundamentally alter the Constitution. Justice
Callinan does not seem at all concerned with the opinion of the plaintiff and, by
inference, the people of Australia. What is appalling is the degree of arrogance
displayed by Justice Callinan in claiming that Australia’s independence depends
on a High Court ruling when, clearly, that decision is entirely in the hands of the
people.
As mentioned above, Justice Kirby is on the record in this Sue v Hill case when he
remarked, ‘I know this is an eccentric and personal view but I have always
wondered what the UK Parliament was doing enacting law in 1986 in relation to
Australia’.
This last comment confirms that the application of reason and logic, as applied to
legal argument, is considered an ‘eccentric’ approach.
CHAPTER 8
ALLEGIANCE TO A FOREIGN POWER
The problems relating to Part 4 Section 44(i) of the Constitution and the fact that
many sitting members of both Houses of Parliament held dual citizenship in 1999
was well known to the Parliamentarians. They set up an Inquiry by the Joint
Standing Committee on Electoral Matters, to look into the 1998 Federal Election.
This was prompted by the fear of having a One Nation member elected to the
Senate. The inquiry was aimed at circumventing the disqualification applicable to
sitting members having dual nationality under that section of the Constitution.
The original purpose of this subsection is to protect the parliamentary system by
eliminating candidates whose performance might be affected by a conflict of
loyalty. The inquiry felt this provision was, ‘widely considered to be no longer
relevant in meeting this end.’
The Liberal Party proposed that ‘the act of nomination by a candidate for the
House of Representatives or Senate should be recognised as immediately
extinguishing any allegiance to a foreign country’, and the Government appointed
Committee agreed. One of the official recommendations of the Committee was:
37

‘That, given adequate public support, a referendum be held to amend the
Constitution so that the act of nomination by a candidate for the House of
Representatives or Senate be recognised as immediately extinguishing any allegiance
to a foreign country provided the candidate is also an Australian citizen’.
Of course, all the Parliamentarians knew that such a proposed amendment would
never succeed at a Referendum so, the issue was shelved.
In a Minority Report, Democrat Senators A. Bartlett and A. Murray said that,
‘Section.44 (i) of the Constitution be replaced by a requirement that all candidates be
Australian citizens and meet any further requirements set by the Parliament....’. This
change would also require a Referendum, and again, everyone knew it would
never succeed. and it too, was scrapped.
However, that did not resolve the problem of the One Nation candidate being
elected to the Senate so, consequently, that issue was handed over to the High
Court. This particular case became known as Sue v Hill and the Court found in
favour of the petitioners with a split decision, four to three. They decided that the
UK was, indeed, a ‘foreign power’ and thereby denied Heather Hill her election to
the Senate, even though she was an Australian citizen but hadn’t completed the
renunciation of her British citizenship.
Section 44 (i) of the Constitution is quite specific when dealing with
disqualification of members in the Houses of Parliament. Section 44(i) states:-
Any person who
(i) is under any acknowledgement of allegiance, obedience, or adherence to a foreign
power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a
citizen of a foreign power; or ---- shall be incapable of being chosen or of sitting as a
senator or a member of the House of Representatives.
When this was originally written, Britain was not considered a ‘foreign power’
but, according to Justice Callinan, his view was, ‘At the very latest, the
Commonwealth of Australia was transformed into a sovereign, independent nation with
the enactment of the Australia Act’.
On the other hand, Chief Justice Gleeson was of the opinion, ‘The Commonwealth
of Australia, as such, had assumed international personality at some date well before
the enactment of the Australia Act. Differing views have been expressed as to the
identification of that date …..’.
38

The above extracts from the deliberations in the Sue v Hill case shows there is
little understanding, or agreement, regarding Australia’s status as an independent
nation.
As a reaction to the outcome of this case, I sent the following letter to the
Commonwealth Attorney General on the 14th
January 2000 but, at that time, I did
not know of the 1975 amendment to the Common Informers (Parliamentary
Disqualifications) Act.
Graham L. Paterson
****************
14th
. Jan. 2000
The Hon. Mr. D. Williams,
The Attorney General,
Parliament House.
Canberra.
A.C.T. 2600.
Dear Mr. Williams,
It has been brought to my attention that the following list of members of Parliament
currently hold dual nationalities.
In accordance with the recent ruling of the High Court in the Sue v Hill case (1999)
HCA 30 (23rd
. June 1999) these members are no longer eligible to hold office.
Under Section 46 of the Australian Constitution, and in line with the above ruling, I
believe you are holding the Australian taxpayer open to considerable liability by not
taking prompt action to comply with the High Court ruling.
Would you please explain to me why Senator elect, Heather Hill, was denied office
while the members listed below are allowed to remain?
Sen. Tsebin Tchen China
Dr. Andrew Theophaneous Cyprus
Mrs. Margaret May Fiji
Mr. Bernard Ripoll France
Sen. Erir Abetz Germany
Mr. Petro Georgiou Greece
Sen. Alex Somylay Hungary
Mr. Phillip McKiernan Ireland
Mr. Phillip Barresi Italy
Mr. Con Sciacca Italy
Mr. Christian Zahra Malta
Mrs Joanna Gash Netherlands
Mr. David Cox New Zealand
Mr. John Fahey New Zealand
Senator Jeannie Ferris New Zealand
Ms. Jacqueline Kelly New Zealand
Mr. Tony Abbott United Kingdom
Sen. George Campbell United Kingdom
Sen. Stephen Conroy United Kingdom
39

Sen. Chris Evans United Kingdom
Mr. Martyn Evans United Kingdom
Sen. Brenda Gibbs United Kingdom
Ms. Julie Gillard United Kingdom
Sen. Susan Mackay United Kingdom
Sen. Andrew Murray United Kingdom
Sen. John Quirke United Kingdom
Sen. Nick Sherry United Kingdom
Mr. Robert Charles United States
I shall await your reply with interest.
Yours truly,
Graham L. Paterson
Needless to say, I never received a reply nor was any action taken against any of
the members listed.
In the above letter, my reference to “holding the taxpayer to considerable
liability” related to Section 46 which follows on from Section 44 and provides the
penalties for sitting when disqualified.
Section 46 reads: Until Parliament otherwise provides, any person declared by this
Constitution to be ineligible of sitting as a senator or as a member of the House of
Representatives shall, for every day on which he so sits, be liable to pay the sum of one
hundred pounds to any person who sues for it in any court of competent jurisdiction.
The reason no sitting member has been sued is because of the ‘escape’ phrase,
‘Until Parliament otherwise provides’.
In 1975, Parliament stooped to gut Section 46 and the designated penalty by
reducing the 100 pounds a day to $200 for each day of unlawful sitting.
In 1900, 100 pounds was the equivalent of several year’s wages for an ordinary
person whereas $200 was equal to one day’s pay for a politician in 1975. This
amendment to the Constitution was done under the ‘Common Informers
(Parliamentary Disqualifications) Act 1975’ and it effectively nullifies the ability of
any person seeking to sue a disqualified member. They did this through Section 4
of the amendment which is titled, “Suits not to be brought under Section 46 of the
Constitution”.
Section 4. On and after the date of commencement of this Act, a person is not liable to
pay any sum under Section 46 of the Constitution and no suit shall be instituted,
continued, heard or determined in pursuance of that Section.
40

The amendment is a totally despicable action by the politicians to protect party
members whom they knew were in breech of Section 44 (i) of the Constitution. To
make matters worse, the Governor General gave assent to this law on April 23rd
1975, in total disregard to the effect it had in altering the Constitution. As with so
many other anomalies related to this Constitution, there appeared no restriction
on how many ‘persons’ could sue any declared disqualified member, but the 1975
amendment restricted the action to a single person.
Part 1 of Section 44 (i) of the Constitution has been consistently ignored by
Parliament for decades. Supposedly, there is another unwritten convention that
requires Parliament to declare a sitting member disqualified before any action can
apply under this Section of the Constitution. While the risk of disqualification still
applies, the above amendment extinguished all penalties relating to disqualified
members. However, that amendment did not provide an excuse for not proceeding
with the disqualification of those members listed in the letter. So far, Parliament
has declined to make any such declaration despite the fact there were, and may
still be, members sitting in Parliament with dual citizenship.
The Government relied on the High Court to deny Heather Hill her seat in the
Senate because she represented the One Nation Party, but they declined to carry
over the ruling to existing sitting members. As a result, those members haven’t
been declared disqualified, as they should have been if the Government had acted
properly and honestly.
An action is still theoretically possible, but it would be a very expensive exercise
and, in all likelihood, the High Court would refuse to hear any challenge under
Section 44(i) of the Constitution. Although the Court is not obliged to give reasons
for refusing to hear a case, they would probably take that action on the grounds it
may risk bringing down the Government if the members were forced to vacate
their office. That of course, is not a legal argument, but legality does not appear to
be an issue that hinders High Court decision making.
CHAPTER 9
THE QUESTIONABLE ACTIONS OF THE HIGH COURT OF
AUSTRALIA
In 1992, the High Court of Australia was reported to have made the statement,
‘All powers of the Government, ultimately, belong to and are derived from the
governed’.
41

This is a bit of an insight to the legal mind which does not appear to have a
perception of the people as free and individual entities, but only as a group that is
there to be ‘governed’ or, in other words, ‘controlled’. In theory, the High Court is
supposed to be an independent entity made up of the most eminent and
knowledgeable Justices in the country. If this were true, and the seven people
sitting on the High Court have this wealth of common knowledge about the law,
why is it they can seldom come to a unanimous decision? The logical answer is;
because these people are not dealing with the law, they are dealing with ‘opinions’.
It has long been my contention that any case relating to a Constitutional issue
must be decided by a unanimous decision. If these seven eminent people cannot
agree on an interpretation of the law then their correct course of action is to
return the question to Parliament and set out the reasons why agreement cannot
be reached. Parliament must either amend the law to clarify the ambiguity, or
rescind it completely if it is bad law. When the Court arrives at a split decision of
four to three, what it really means is that the decision is based on the opinion of
one person. Any split decision is clear proof there is something wrong with the
decision, even if only one Justice is in dissent.
The Constitution is worded deceptively in respect to the appointment of Judges to
the High Court of Australia. Section 72(i) of the Constitution says the Justices
‘shall be appointed by the Governor General in Council’ but omits to define how
these appointments are to be selected. It appears to be an unwritten convention
which allows the selection to be made by the Prime Minister. The selection is not
subject to Parliamentary approval and, obviously, no Prime Minister in his right
mind is going to select a Judge who is not politically compatible. This arrangement
cannot but help tarnish the supposed independence of the High Court. When this
is coupled with the acceptance of split decisions, it is conclusive proof that every
one of those decisions is based on opinions and not on unbiased legal analysis.
However, there is another system available that would mitigate many of the real
and perceived flaws currently applicable to the present arrangement. In keeping
with the concept of a federated Commonwealth, it makes a lot more sense to have
each State nominate their representative to the High Court of Australia. Although
this may not eliminate political bias, it would contribute to a more balanced view
regarding the perception that most of the Court’s decisions favour the Federal
Government. It is simply a matter of human nature for a person to feel a degree of
responsibility for the largesse showered upon them by those in authority.
42

Far too many High Court decisions have been made on the basis of majority
rulings where the Judge’s personal attitudes and opinions have held sway. Split
decision come under the realm of ‘Judicial Review’, which is neither spelled out in
the Constitution nor implied. Every decision made in this category has political
ramifications and are never based on strict legal principles. As such, many of these
decisions have far reaching Constitutional implications that can effectively change
the way the Constitution is interpreted.
Section 76 and 76(i) of the Constitution are extremely dangerous provisions in
respect to maintaining the integrity of the Constitution.
They read as follows:-
Section 76 The Parliament may make laws conferring original jurisdiction on the High
Court in any matter:
(i) arising under this Constitution, or involving its interpretation.
This Section is very ambiguous to any ordinary person because it does not explain
which matters it is referring to when granting original jurisdiction to the Court. Is
there a blanket law that gives the Court carte blanc to interpret the Constitution
in any way they see fit? Or, is it necessary for the Parliament to pass a specific law
in each case when they want to confer this authority on the Court?
Even Quick and Garran ignored this ambiguity but they did comment on the fact
that the wording of ‘in any matter’ was ‘apparently’ deliberate rather than being
written as, ‘in all matters’.
Of course, the politicians and the legal fraternity probably resort to their mystical
legalese to declare this section of the Constitution is perfectly clear in its meaning
and intent. Anyone else would see this as open slather in the way the Constitution
is interpreted. This is further justification for the argument that all decisions
involving a Constitutional interpretation must be decided by unanimous
agreement.
JUDICIAL REVIEW PROCESS
There is a question of the legitimacy when the High Court exercises an assumed
‘power’ to alter the Constitution by way of their Judicial Review Process. On
11/11/2003, Sir David Smith, who was the official Secretary to five Governors-
General from 1973 to 1990, commented on the way Sir Anthony Mason, the
former Chief Justice of the High Court, used this usurped ‘power’.
43

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