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.

The remainder of this Constitution shall be divided as follows:-

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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.

2nd Oct. 2010

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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.

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

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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

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.

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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

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.

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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

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

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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

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.

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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

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

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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.

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.

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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

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,

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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.

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

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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

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

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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

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

17

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

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

18

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

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

19

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

Majesty's title as Queen of Australia and the issue of Letters Patents for the

appointment of the Australian Governor Generals.

20

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

the Australian character than to any particular foresight, or ‘divine' wisdom, on

the part of the ‘Founding Fathers’.

21

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

Dominion of the Commonwealth of Australia’. At the 1911 Imperial Conference,

when discussing an issue about treaties involving the Dominions, Sir Wilfred

22

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.

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

23

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.

25

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,

26

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’.

27

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

28

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

29

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

30

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

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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

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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

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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

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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

35

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:

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‘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 …..’.

37

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 ChinaDr. Andrew Theophaneous CyprusMrs. Margaret May FijiMr. Bernard Ripoll FranceSen. Erir Abetz GermanyMr. Petro Georgiou GreeceSen. Alex Somylay HungaryMr. Phillip McKiernan IrelandMr. Phillip Barresi ItalyMr. Con Sciacca ItalyMr. Christian Zahra MaltaMrs Joanna Gash NetherlandsMr. David Cox New ZealandMr. John Fahey New ZealandSenator Jeannie Ferris New ZealandMs. Jacqueline Kelly New ZealandMr. Tony Abbott United KingdomSen. George Campbell United KingdomSen. Stephen Conroy United Kingdom

38

Sen. Chris Evans United KingdomMr. Martyn Evans United KingdomSen. Brenda Gibbs United KingdomMs. Julie Gillard United KingdomSen. Susan Mackay United KingdomSen. Andrew Murray United KingdomSen. John Quirke United KingdomSen. Nick Sherry United KingdomMr. 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.

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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 9THE 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’.

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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.

41

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’.

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Sir David referred to the words of Justice Dyson Heydon, when Heydon presented

an address in 2002 entitled, ‘Judicial Activism and the Death of the Rule of Law’.

Mr. Heydon spoke of the dangers of judicial probity which arise when a court

deliberately sets out to alter the law. He described Justice Mason as ‘among the

greatest innovators of them all, until he retired in 1995’. In the Sue v Hill case

before the High Court in 1999, three of the seven Justices found that, the High

Court, sitting as the Court of Disputed Returns, had ‘no jurisdiction’. Sir David

was also concerned about the Courts apparent ease in clothing itself with a

judicial function to amend the Constitution beyond its constitutional competence.

Speaking for the majority in the Sue v Hill case, Justice Gaudron said, ‘For

present purposes it is sufficient to note, that, in general terms, the judicial process is

one that involves the independent and impartial application of the law to facts that

are found on evidence to be probatitive of those facts - - - ‘. (Gaudron J p 34.)

Justice Kirby responded to the willingness of the majority to confer a statutory

jurisdiction on the Court in contrast to the very strict approach taken in other

recent decisions. In Justice Kirby’s view, this had the effect of reconstituting, and

even renaming the Court, as a ‘kind of special creature of Parliament’, willing to

perform a multitude of functions, many of them quasi-political and semi advisory.

He saw this as “giving a most generous rein to words”, unstated in the text of

Chapter III, ‘The Judicature’, of the Constitution. (Kirby J p280)

Based on the doctrine of ‘Separation of Powers’, Parliament cannot be seen to

interfere with deliberations of the High Court. When the Court chooses to apply

an undefined and assumed prerogative of ‘judicial process’; the Government is

loath to intervene. There is nothing in Chapter 3 of the Constitution that either

justifies or prohibits the High Court from using ‘judicial review’ to alter the

meaning and intent of the Constitution.

It is a process which this body of unelected people use, on the assumption they can

treat the Constitution, the Parliament and the people, with contempt, knowing full

well, they are unaccountable for their actions. The doctrines of legal positivism,

irrespective of what they are based on, whether it’s tradition, evolutionary theory

or legal independence, are beyond the judicial competency of the High Court and

the Judicial powers conferred on the Court by the Constitution.

Judges are supposed to apply legal argument in their decision, not their personal

beliefs and values. When four NSW judges signed a letter critical of legitimate

mandatory sentencing laws, Justice Gleeson of the High Court, responded with the

43

comment, ‘Judges who found it difficult to implement the law should do the proper

thing and resign’. In his speech to the Australian Bar Association, he also said, ‘No

judge has the choice between implementing the law and disobeying it. Judges whose

authority comes from the will of the people, and who exercise authority upon trust

that they will administer justice according to law, have no right to subvert the law

because they disagree with a particular rule’.

His additional remarks were published in The Australian newspaper on 7/7/2000

‘Judges are accorded a measure of respect, and weight is given to what they have to

say, upon the faith of an understanding by the community that to be judicial is to be

impartial. But to deploy judicial authority in support of a cause risks undermining

the foundation upon which such authority rests. The expertise which the members of

the (High) Court are required to bring to bear on that function is their expertise as

lawyers. The Australian community would be properly concerned if they decided to

base their decisions upon the exercise of other supposed talents. What those talents

might be, when and how they were acquired, and by whom they might be assessed,

are questions that would need examination if legalism were to cease to be the base of

decision-making. The quality which sustains judicial legitimacy is not bravery, or

creativity, but fidelity to the Constitution’.

If this concept of legal decision making is correct, it supports my belief that every

High Court decision must be unanimous if it is to be based on “legalism”, and if

legal agreement cannot be reached, then something is obviously wrong with the

way the ‘law’ is written.

Justice Gleeson has been criticised for his ‘legalism’ in contrast to the ‘creativity’

during the time when Justice Mason was on the High Court, and this speech to the

Association was particularly pertinent. Unfortunately, while Justice Gleeson, and

all the other Judges on the High Court, might be aware of the ‘community’s

concern’, they also know they are totally unaccountable to anyone, any

organisation or even the Constitution other than “on the ground of proven

misbehaviour or incapacity” 72(ii).

CHAPTER 10

THE REPUBLICAN QUESTION

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Having read the Australian Constitution and delved a little into its background, I

came to the obvious conclusion; it was a very, outdated and inaccurate document,

which completely misrepresents the way Australia is governed.

It so happened that an official Republican Party was formed around 1973 and, as

they came to much the same conclusion regarding the Australian Constitution, I

decided to join. The only significant event that arose from this membership was to

be selected as one of the Queensland representatives to attend a weekend national

conference in Canberra.

Most of my notes on this era have now been lost but I do remember my overriding

impression of the event. There was no sense of any sort of coordinated or united

agreement on the type of Republic envisioned by the members. The proposals

covered the whole gamut of options and the conference organisers seemed at a loss

to provide any focus to the meeting. Shortly after this, I accepted a position with

Bougainville Copper in New Guinea and my initial foray into the realm of

Australian politics came to an end.

I continued to take an interest in Constitutional matters but it wasn’t until the late

90’s that the Republican issue re-emerged. The end of the millennium was the

quite illogical reason given for this change. Nobody really explained why that date

should have any particular significance other than the feeble excuse about turning

over a new leaf and making a fresh start. Of course, that ‘fresh start’ did not

include writing a completely new Australian Constitution. The worst option the

Government, the political parties and the recently created, Republican Advisory

Committee could come up with was, to amend the current Constitution.

THE HEAD OF STATE

All these people proposed using the ‘minimalist’ approach by removing all

references to the Queen. This was a very deceptive move which focussed the issue

on creating an Australian Head of State and thus diverting attention from the true

intent of emasculating the Senate and eliminating the Reserve powers of the

Governor General’s position. The facts are, there has been many Australian born

Governor Generals, starting with Sir Isaac Isaacs in 1930. If the Head of State

were truly the primary issue, a simple option was to change Section 2 of Part 1 of

the Constitution Act to read along the following lines:

45

‘The Head of State of Australia shall be known as the (Governor General or

President) and shall always be an Australian born citizen and appointed in the

manner prescribed by the Australian people to exercise such powers and functions,

subject to this Constitution, and as currently assigned to this position’.

John Howard’s idea was to set up a Presidency that was totally in the power of

the Prime Minister, to appoint and dismiss, virtually at whim. The debate swirled

around the issue of whether the Head of State should be elected by the people or

appointed by Parliament. There was very little comment on the details relating to

the position apart from the suggestion that it should largely be one of a ceremonial

function. At the time, the popular sentiment seemed to be to have the appointment

decided by the people even though that would inevitable lead to politicising the

position. The alternative option was to allow Parliament to appoint the Head of

State with the Government preferring to stick with the existing system where the

appointment is made by the Prime Minister of the day.

Another idea that was never allowed to be publically aired was the concept of

forming an Australian Council to effectively replace the Crown. This Council

would be made up of 7 or so members whom would choose one of their members

to act as President. An extension of this idea was to form this Council from the

existing State Governors, and thereby, completely remove the Presidential

appointment process from the clutches of the Commonwealth Government.

As the Commonwealth of Australia is still, first and foremost, a Federation of

States

, this concept has some merit. It would, in fact, be immeasurable strengthened if

the people were to demand that each of the State Governors were appointed by 2/3

of their respective State Parliaments. In the name of fairness, it would be feasible

to set up a rotational system where the State Governors act in turn as the Nation’s

President for a certain nominated period.

Any legally appointed President must have the discretion to assent, or deny,

approval of legislation if they believe it is in conflict with the Constitution.

Complying with the advice of the PM is an unwritten convention, which, as with

the office of the PM itself, is not included in the Constitution. Any President must

be a protector of the people’s rights and ensure the Constitutional integrity is

upheld in all legislation that comes out of Parliament. If these responsibilities are

not part of the President's role, then there is no point in changing to a Republican

system.

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The people need to be aware of the problems related to a popularly elected

President because; this is really a question of whether or not we want to retain the

Westminster system of Government. While there are all manner of connotations

involved with a popular vote, in the Australian context, an elected President must

end up as a politician and, inevitably, a rival to, or cohort with, the PM. There is

no way a popular vote can avoid becoming embroiled in politics and money.

The one question that was never asked, and never answered, was on what basis

does the public decide how to vote for the, supposed, apolitical candidates seeking

the position of President? That raises the other question of how candidates are

selected, or nominated, in the first place. If the position is to be non-political, do

the people vote on the basis of looks, or will it be on gender or race, heaven forbid

that it is on popularity as an entertainer. Will sexual preference or family values

play a part, and what knowledge must the candidates have on the Constitution

and the political processes? Candidates would have to avoid expressing their views

on the current political scene and this would inhibit them from indicating any sort

of platform to clarify their ideas and perception of responsibilities or the

anticipated Presidential role in the political arena. It should be patently obvious

that electing a President by popular vote must degenerate into a similar farcical

system that applies in the US.

A REPUBLICAN CONSTITUTION

As mentioned above, the principle thrust for creating a Republican Constitution in

1999 was to fiddle with the current antiquated and 19th Century abortion of a

document, and convert it through a process of ‘minimal’ change. However, the

Republican movement in Australia began laying the groundwork well in advance

of the new millennium. From the beginning, all the discussions hinged on offering

the people the choice between two options – to keep the existing Constitution and

remain a Monarchical system or modify the existing Constitution and convert it to

a Republican system.

To me, the Republican debate represented an opportunity to push for a

completely new and proper ‘people’s’ Constitution of Australia. The issue of

whether we remained a Monarchy or became a Republic was immaterial if it

could be guaranteed the ‘people’ OWNED the Constitution and could control the

47

system that governs their lives. This is where the idea of a third option struck a

very responsive chord with me.

A THIRD ALTERNATIVE

In 1997, I came across a group who called themselves the Alternative Three

Movement. Mr. Joe Bryant of NSW was a prime mover of this group and their

aim was to develop a completely new Constitution which could be offered as a

third alternative to the two options then on the table. A lot of time and energy

went into soliciting ideas from people all over Australia and compiling a draft

Constitution based on the ideas and wishes of the people.

This process was well advanced by the time I came on board and the group had

already conducted a number of public conventions around Australia. I was able to

offer some ideas and help in the development of the draft Constitution and this

resulted in an invitation to address their Brisbane Convention. The following is

the text of my talk on that occasion.

AUSTRALIAN CONSTITUTIONAL CONVENTION

SPEECH

by

GRAHAM L. PATERSON

16th. August 1997

I would like to start by thanking the organisers for this invitation to address the

Convention.

Let me start with a few questions.

Would you like a Constitution that you, and everyone else in Australia, can read and

understand?

Would you like a Constitution that spells out the basic philosophy of our society?

Would you like to have a Constitution that is made up of five fundamental principles?

Would you like a Constitution that can be taught in all our schools?

Would you like to have a Constitution that does all these things?

If you would; then my advice to you is to go and live in Indonesia!

Because; the Indonesian constitution achieves every one of these things.

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Their Constitution is a living, meaningful and relevant document to the Indonesian

people.

In other words - it is a people’s Constitution.

So - what I want to do today is to pass on a few experiences and ideas that might help

towards achieving two goals.

The first goal is to try and make the Australian Constitution into a living, meaningful

document to the people of this nation.

The second goal is to contribute towards reclaiming sovereignty of ‘our’ Constitution.

One step in this direction could be through a Constitutional Review Process,

controlled by the people.

The reason I have started this talk today by discussing Indonesia is - because - that is

where my interest in Constitutions began.

My family and I lived there for several years in the late 60’s. I was impressed by the

sense of national unity engendered by the Indonesian Constitution. Their Constitution is

based on the ‘Panjasila’ - this is a belief in 5 basic philosophic principles; together,

these principles form the basis of the Indonesian society. In essence they are - belief in

god - belief in humanity - in national unity - in the sovereignty of the people - and -

belief in social justice. Don’t get me wrong - I am not saying that the Indonesian system

is the best system, or that it is the right system - I’m not saying that it even works

properly - in many ways it doesn’t work properly at all.

There is no distinctly Australian philosophy embodied in the present day Constitution.

And I would be very surprised if there’s anyone here today who would describe this

document as a ‘living Constitution’

So - the question is - do we want a people’s Constitution?

The very fact of this convention today says, ‘yes we do’

I for one, would certainly like to have a Constitution that could be understood by every

Australian - a Constitution that represents the living expression of how ‘we’ want our

society to ‘be’ - a Constitution that ‘we’ can be proud of - and, when I say ‘we’, I mean

the people of Australia. This simply doesn’t apply to the present Constitution - very few

Australians know anything about it let alone understand it. Today’s Constitution is

much more akin to a colonial Constitution - or at least a colonial mentality.

I’m not a public servant - and I am not a lawyer - and I’m certainly not a politician, but

as an Australian citizen, I do have a very keen vested interest in being part of ‘our’

Constitution. Some of the reasons why the existing Constitution fails the relevancy test

may be illustrated from my own experience.

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On our return to Australia, I decided to have a look at ‘our’ Constitution. This proved

easier said than done. When I finally found a copy, I was not only confused, - but I also

found it difficult to comprehend. There were no clear cut definitions and much of the

terminology appeared to be interchangeable. I eventually began to realise that the

Constitution actually bore very little resemblance to the system of government that was

in place. Sometime later, I discovered the term ‘conventions’. These ‘conventions’

appear to be a set of unwritten, uncodified rules, largely unknown to the general public.

The ‘conventions’ tend to remain hidden until politicians, or barristers, decide to bring

them out into the open - usually for their own benefit. In essence, it is the ‘conventions’

that determine how the Constitution works. As far as I can find out, these ‘conventions’

tend to be a` cosy arrangement between the legal profession and the politicians as to

how they want things to be run. True enough, these ‘conventions’ have been developed

over many years as part of the, so-called, ‘Westminster’ system of government. This is

hardly justification for what really amounts to a manipulation of the Constitution

behind the backs of the Australian people.

As I studied the Constitution, I found considerable difficulty in defining any real basic

philosophy to underpin the document. Unlike the American Constitution, which

commences with the concept, ‘we the people’, the Australian Constitution is quite

different. The American Constitution proceeds to determine what ‘powers’ the people

are prepared - and willing - to delegate to a government system of their choosing.

Unfortunately for them, the yanks managed to stuff it up - they had their chance but like

us - they left in too many loopholes. The founding fathers of both Constitutions

knowingly accepted the concept of ‘conventions’ built into the ‘Westminster’ system of

government.

In addition a number of innocent little phrases were left in both Constitutions - phrases

such as “until congress (or parliament) decides” or ‘until congress (or parliament)

otherwise provides’ and ‘congress may make laws in respect to this Constitution’. And

the politicians certainly had a field day - the end result is that both Constitutions have

suffered systematic manipulation from their inception - the American Constitution is

now quite a different document to the original concept and the philosophy of the

founding fathers.

The Australian Constitution fell into the same trap as the American counterpart - I don’t

know whether it was by accident - or design - or simply the culture of the times.

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For example - the Australian Constitution contains 39 clauses that permit Parliament to

make laws that will effectively alter the constitution - the politicians can, and do, make

use of these clauses as they see fit - and - without the need to go to referendum.

While the Australian Constitution starts off with the phrase ‘whereas the people’ it

promptly goes on to emphasise the authority of State Parliaments, the Federal

Parliament and the Governor General.

Nowhere can I find the philosophy that it is the people who should control the

Constitution - or - that it is the people who should decide the form of government they

want. My impression of the present Constitution is that it is, fundamentally, an

agreement between a group of power entities, otherwise known as the ‘States’.

These ‘States’, or ‘Colonies’ as they were then known, got together in the late 1800’s to

decide how they would agree to share their ‘power’. The idea was to form a central

power entity to be known as the ‘Federal Government’. Between them, the States

agreed to delegate certain ‘powers’ to this central body in the interests of national unity.

The problem was nobody ever defined ‘power’ in the true political sense.

In politics, when you come to the bottom line, ‘power’ means one thing, and one thing

only, - it means control of people.

To me, this has always been the fundamental flaw in the Australian Constitution.

I believe, this Constitution was designed by people who accepted that it was ‘the

Government’s’ right, and responsibility, to control people. I do not believe that the

founders had any clear conception that people are, and always should be, the

fountainhead of all political ‘power’.

It is the people who should decide if they want to form a ‘government system’ - it

is the people who must decide what sort of system they want - it is the people who

must decide what sort of powers they may wish to ‘delegate’ to this ‘government

system’ - and it is the people who must always retain the control of any system

they choose to endorse. None of these things happen with the present Australian

Constitution

We cannot initiate referendums - only political parties can do this. We cannot say

whether or not we agree to hand over our sovereignty to some international

organisation - only political parties have this power, and they don’t even have to get it

endorsed by Parliament. We can’t even stop politicians from rorting the system. They

give themselves totally unjustified handouts in superannuation schemes that they set up

exclusively for themselves and their mates. We can’t stop a ruthless ‘Prime Minister’

who, incidentally, isn’t even mentioned in the Constitution, from setting up a 3 man

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dictatorship in Australia. Gough Whitlam got away with this when his party was first

elected. Whitlam and Lance Barnard sequestered all the ministerial portfolios between

them and went to the Commander in Chief of the Armed Forces, otherwise known as

the Governor General, to form a legal 3 man dictatorship of Australia. What was truly

frightening about this was, not a whisper was heard from the press or those “guardians

of justice” - the courts and the legal profession.

These are just a few of the practical weaknesses of the present Constitution. What’s

more important are the inherent philosophical weaknesses that form the basis of the

whole document.

What has to be done is that ‘we’ the people have to re-assert our authority on

Parliament by reclaiming the Constitution as ‘our’ property.

‘We’ have to start talking about ‘our’ Constitution - not ‘the’ Constitution - ‘we’

have got to make the politicians understand that they are there for ‘our’ benefit

and not for the benefit of their political party.

‘We’ must re-assert the ‘right’ to amend the Constitution, if and when, ‘we’ see fit -

‘we’ must refute the concept that only Parliament can initiate referendums. ‘We’ must

be constantly vigilant in denying politicians the authority to commit this nation to any

form of international treaty that impacts on the laws of this nation. All treaties of any

type must be ratified by Parliament. ‘We’ must also demand that any treaty,

whatsoever, even when passed by Parliament that has the effect of altering, in any way,

the principles and ideals of ‘our’ Constitution, must always go to a people’s referendum

for ratification. ‘We’ must also insist that the small group of people that make up the

High Court of Australia shall always arrive at unanimous agreement for any decision

that they are called upon to make. If unanimous agreement cannot be reached then this

is clear evidence that something is wrong with the legislation - the problem then must

be handed back to Parliament to resolve. No unelected body of people from any court

in Australia should ever have the right - or authority - to alter the intent and purpose of

the Constitution. If parliament cannot satisfactorily resolve an issue, they have but three

choices - either rescind the legislation, rewrite it in an acceptable form or, go to the

people through a referendum. Calling an election to avoid a referendum is not

necessarily a proper course of action on every occasion. The claims of having a

‘mandate’ is a typical political con trick because, very few elections are ever clear-

cut, or provide significant majorities to any one party. Usually elections tend to be too

close to call and the differences amount to only 1 or 2% swings either way. Such

results do not provide a mandate and no party has a right to such a claim under those

52

circumstances. In the nature of our political game in Australia, the winning party tends

to take office with 51% of the vote. Even so, it is seldom likely that this ‘majority’ is

made up of primary votes, hence, it is hypocritical to claim the ‘majority’ of people

voted for the party. The end result of any general election is that half the population

feels disenfranchised when their party doesn’t win ‘power’.

Political parties do not govern in the interests of all the people of Australia - they

govern in the interests of their parties, and holding on to ‘power’

‘We’ must therefore ensure that Parliament shall never have the authority to alter the

principles, intent and ideals of ‘our’ Constitution through legislation. It is far too

dangerous to give politicians this sort of leeway.

What this means is that the Australia Act of 1986 must be repealed. If and where

appropriate, it should be re-written as a Constitutional Amendment and submitted to the

people through a referendum. It must be reworded so as to not to defraud the people of

Australia of their common law heritage and rights.

Most of my above comments are already incorporated into the ‘alternative three’ draft

Constitution, except perhaps, for the concept of regular Constitutional reviews. Because

of the era of rapid change ‘we’ now live in - I believe - ‘we’, the people, need a

mechanism built into ‘our’ Constitution to provide for regular, ongoing reviews at pre-

determined intervals. These intervals could be, say, every, 7 years or 10 years -

whatever - that’s up to the people to decide.

Some ideas for this review process are, that ‘we’ the people, establish within ‘our’

Australian Constitution, a Constitutional Review Convention in each State. These State

Conventions would culminate in a National Convention in line with the recommended

interval which I just mentioned. Certain rules would have to be mandatory in respect to

the format of these Conventions.

Firstly, someone perceived to be independent, possibly the Governor General - or the

State Governors - should establish a panel of people, with the guarantee that the

makeup is not dominated by either, the parliament, the public service or the legal

profession. From their number, this panel would be required to appoint, or elect, a

member to act as chairperson. The purpose of the State Conventions would be very

similar to this Convention today - its aim is to provide a forum for the ‘people’ - and

this includes everyone - including politicians, public servants and lawyers - to have a

say on the Constitution. The responsibility of the State Conventions would be to

conduct a series of meetings throughout the respective States. The purpose is to develop

a set of recommendations to be put to the National Convention.

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The National Convention could, as one suggestion, comprise of the panels from each

State Convention. The makeup of the National Convention could be open to other ideas

but should never be left to the behest of the sitting Government of the day. The purpose

and responsibility of the National Convention would be to examine all the various

recommendations from each State and arrive, by majority approval, at a final set of

issues that should be put to the people. This National Convention would have the

constitutional power to instruct Parliament to duly arrange the necessary referendum on

the nominated issues. Effectively this should be the essential, and preferred, procedure

for reviewing the Constitution.

It would be the mechanism available to the Federal Parliament if they seek

constitutional changes and they, like everyone else, would have to argue their case

before the Conventions.

In essence, the State Conventions would have three principle objectives -

(a) - to review issues of legislation or judicial decision enacted during the previous

review period - that are perceived to effect the Constitution

(b) - to solicit and examine proposals from any source in the state relating to review of

the Constitution

(c) - to develop a set of recommendations for discussion at the National Convention.

It would be expected that this sort of review process would take place over, probably, a

12 month period. The time frame should be part of the Constitutional amendments

setting up this mechanism.

As I said at the opening of these remarks the ideas I have expressed are my own

personal views - I am pleased to note that many of my thoughts already coincide with

the concepts of the Alternative 3 draft. If this address contributes in any way to the

further development of this project, I would consider it a most gratifying measure of

success.

In closing, I would like to express my appreciation at having been invited to this

Convention and dearly hope it will achieve its goals and I hope, for all our sakes, we

find the success that this whole project so rightly deserves.

Thank you Mr. Chairman and thank you everyone.

Apart from the occasional report in the main stream media, the option of a third

alternative was completely ignored by the Government, the Republican movement

and, of course, the Monarchists. At the time, a final version of this alternative

Constitution was in the process of completion and formed a very solid foundation

54

for a proper people’s Constitution. It spelled out the sort of Government the

participating people preferred and the limitations and controls they would have

placed on the politicians, as well as the High Court. It was an excellent starting

point for declaring a truly sovereign and independent Australia.

CHAPTER 11

THE REPUBLICAN ADVISORY COMMITTEE

Because the Republican Movement and the Monarchists dominated the media, all

the propaganda concentrated on the issue of an Australian Head of State and

removing references to the Queen from the existing Constitution. Many other

changes would have been incorporated as part of that process but these were given

very little attention. One of the most obscene proposals was to give the PM the

power to appoint the President, but more importantly, to dismiss the appointee

virtually at whim and without reference to Parliament. Several other innocuous

changes were also to be included whose latent effect would have been to greatly

increase the powers of the central Government over the people and the States.

Of course, there was no consideration about giving the people a say in the actual

rewriting of the Constitution. In the referendum, the people were only required to

answer the question, ‘Do you approve of an Act to alter the Constitution to establish

the Commonwealth of Australia as a republic with the Queen and Governor General

being replaced by a President appointed by a two-thirds majority of the members of the

Commonwealth Parliament’.

The writing of the Act to alter the Constitution was to be left entirely in the hands

of the politicians and lawyers; exactly as it was in drafting the original document.

The people are considered irrelevant and there was no intention of letting them

have a say in how they wanted their Government to function or what powers they

were prepared to delegate to their elected representatives.

In a show of political correctness, the Government decided to offer a ‘feel good’

preamble to be added to the Constitution, but under the proviso that it was not to

be regarded as a legal part of the Constitution.

The Government drafted the preamble and claimed it was presented to the people

for comment but there was no transparency whatsoever in this process. The

Government vetted whatever comments were made by their selected people and

ensured there was no public debate on their preferred wording. In actual fact, the

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Preamble should be an integral part of the Constitution. It should outline the

fundamental philosophy of the society and the principles which the people impose

on their elected representative whom they delegate to form a Government.

A far more appropriate example of a Preamble is given in the introduction of this

book. By comparison, the draft Preamble presented to the people at the time of

the Referendum is a meaningless set of platitudes which are made irrelevant by

the fact it is not to be considered a legal part of the Constitution.

The proposed Preamble was:

'With hope in God, the Commonwealth of Australia is constituted as a democracy with

a federal system of government to serve the common good. We the Australian people

commit ourselves to this Constitution: proud that a unity has been forged by

Australians from many ancestries; never forgetting the sacrifices of all who defended

our country and our liberty in time of war; upholding freedom, tolerance, individual

dignity and the rule of law; honouring Aborigines and Torres Strait Islanders, the

nation's first people, for their deep kinship with their lands and for their ancient and

continuing cultures which enrich the life of our country; recognising the nation-

building contribution of generations of immigrants; mindful of our responsibility to

protect our unique natural environment; supportive of achievement as well as equality

of opportunity for all; and valuing independence as dearly as the national spirit which

binds us together in both adversity and success'.

In view of all these issues, I wrote a submission to the Republican Advisory

Committee which was under the Chairmanship of Malcolm Turnbull.

That submission is a follows:-

SUBMISSIONfor

REPUBLICAN ADVISORY COMMITTEE20th. June 1999.

byGRAHAM L. PATERSON

CONTENTS

1. INTRODUCTION

2. PHILOSOPHY

3. OUR PRESENT CONSTITUTION

4. PEOPLES' RIGHTS

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5. GOOD GOVERNMENT

6. CHRISTIAN FOUNDATIONS

7. CONSTITUTIONAL REVIEW

8. HEAD OF THE NATION

9. THE JUDICIARY

10. COMMANDER - IN - CHIEF

11. A LIVING CONSTITUTION

INTRODUCTION

There are, fundamentally, two methods by which Societies can be

governed - one is by force, the other is by Law. We must therefore

make an assumption that our Society wishes to be governed by the

rule of law, to assume any other premise would make this whole

exercise futile. If we accept this, we must then define the principles,

or basic philosophy, by which all laws must abide. This philosophy

and these principles should be set out in our Constitution. The word

"our" is used advisedly because there are a number of different

approaches to Constitutional drafting being used in the World.

In my view, the only correct approach is the one whereby the people

of a Nation own the Constitution and define in it what powers (i.e.

control of their affairs) they wish to delegate to their elected and

appointed representatives. It must also define what limits and

controls they wish to place on the delegation of these powers. By

defining and limiting these powers in the Constitution, it will

effectively ensure that no group of delegates will be able to

manipulate or extend them without direct authority of the people.

This same definition and limitation must also apply to the High Court

of the country in that they must never have the right to infringe the

fundamental philosophy of the Constitution. The Constitution should

also deal with the people's right to exert their authority over any

representative, either elected or appointed, who does not perform

their duties honourably.

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The Constitution should enshrine the basic fundamental Rights of

LIFE, LIBERTY AND THE PURSUIT OF HAPPINESS of each and every

citizen of the Society and must forever preclude any Government

from tampering with these Rights by way of Legislation. It is a fact

that no Rights can be held sacred and inviolate under Legislation that

can be changed at whim by any Government of the day. The primary

truth is that Rights belong to the people and no Government has the

authority, or power, to say what Rights the people may or may not

have - only the people can do this. If the people so wish they may

define which Rights they are prepared to compromise, e.g. self

defense, but it is the people who lay down the limits of this

compromise. Any Rights not so prescribed, or otherwise specifically

dealt with in the Constitution, remain automatically, a Right of the

people and is never the possession of any Government.

PHILOSOPHY

Each of us, whether we know it or not, live our lives according to

some form of philosophy. The reality is that it is philosophy which

governs our Society and it is, therefore essential, that our

Constitution must be the written expression of the philosophy, which

we, as a Society of Individuals, wish to live our lives. All people of our

Nation must be deemed to have the inalienable Rights to Life, Liberty

and the pursuit of happiness. From these basic Rights stem all other

Rights.

People form a Society in the hope that it will provide them with the

opportunity to live, work and cooperate together, on the basis of

mutual convenience, mutual benefit and mutual respect. Through

Society, each of us hopes we may more easily pursue our paths to

individual happiness. People do not form a Society to seek misery -

they do not form a Society to elect a Dictator and they do not form a

Society to allow a Government to assume greater importance than

the Society itself. "Good" Government therefore, is based on the

Rights of each of the Individuals of its Society and no Nation of people

can legitimately have an interest in a Government based on any

other foundation.

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Laws stem from the basic pronunciation of the inalienable Rights of

the Citizens and must be subordinated to this principle. This basic

pronunciation is made by way of our Constitution so that all laws

derived from the Constitution will apply equally to all individuals,

whether to protect or punish, whether majority or minority,

irrespective of colour, creed, sex or religion. All people of our Nation,

in terms of the Constitution and its resultant laws, must be

considered equal. The people of a Society elect a group of delegates

to form a Government, fundamentally, for one purpose only. They

delegate to this group the authority to protect the Rights of every

individual in our Society. This authority is granted within the

framework of the Constitution and in terms of a rational and objective

code of Rules. This recognition of Individual Rights is the means of

subordinating Society to Moral Law. A moral Society is a just Society.

Thus, the principle of "Good" Government is born when citizens of a

Nation wish to secure their Rights as Individuals and create a

Constitution for this specific purpose.

OUR PRESENT CONSTITUTION

The present Commonwealth of Australia Constitution Act is, basically,

an agreement between State power entities defining which powers,

relating to control over people, they wish to delegate to a central

power entity known as the Commonwealth Government. The "Act", in

effect, proclaims the philosophy that State Governments control the

people and have the right to delegate these controls as they see fit. It

further espouses the philosophy that the Central Government is,

supposedly, the fountainhead of authority and can override State

Laws if they do not conform to Centralist power demands.

Nowhere in the present Constitutional Act does it declare that the

people are the fountainhead of all authority in relation to any

Government. Nowhere in the present Constitutional Act does it set

out our inalienable Rights, the protection, of which, should and must,

form the cornerstone of our Governments responsibilities.

As I have stated above, the Constitution of our country, whether we

like it or not, is an expression of the basic philosophy by which we, as

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a Society, will live our lives. Until such time that the people recognize

this and demand genuine change for a Constitution to protect our

Rights and ensure our freedoms, then, we must be forever on guard

to see that any changes that are made do not result in an increase in

the already excessive power which Governments have over our lives.

Whatever happens, the Reserve Powers of the Governor General, as

related to our present Constitution, should not be diminished, in fact,

if anything, they should be strengthened and better enunciated by

means of a clear cut set of guidelines. Provided the following two

fundamental principles are recognized and adopted in any new or

altered Constitution, then it really becomes immaterial whether the

system is a Republic or a Constitutional Monarchy.

These two crucial principles are

(1) That the people are the fountainhead of all Authority

(2) That every person in our Society has inalienable Rights and it

is the Government's specifically delegated responsibility to

protect these Rights for all Citizens.

The concept of trying to change the present Constitutional Act by way

of minimal changes is clearly not going to be either easy or practical,

for the following reasons

(1) There a something in the order of 54 references to the

Queen or Her Majesty.

(2) There are some 68 references to the Governor General and

to State Governors.

(3) There are a further 27 references to Britain, Ireland and the

U.K., Colonies, the Crown and the Privy Council.

(4) There are at least 15 references to the "Original States"

which excluded W.A. and other clauses that deal with the

commencing period and are no longer applicable.

(5) There are at least 12 references to "The President" referring

to the President of the Senate. Should this term be adopted

for the proposed new Head of the Nation then these clauses

would have to be rewritten to clearly distinguish the two

separate offices.

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(6) There are nine clauses in the “Preamble” of the Act of which

seven would have to be altered.

(7) Of the 129 clauses in the Act itself some 84 would have to be

altered to produce the same system but without referring to

the Queen.

(8) There are at least 4 clauses referring to God and to Prayer

which will, no doubt, come under intense scrutiny as they

underpin the basic Christian foundations of our Society.

(9) There are currently some 39 clauses that permit Parliament

to make laws to effectively alter the Constitution as they see

fit.

Virtually all these clauses need to be qualified to limit

Parliament's power in accordance with the people's Right and

the above two fundamental principles that must be clearly

written into any new Constitutional rewrite.

(10) There are at least 6 clauses which are contradictory,

inconsistent or plainly superfluous and would need either,

clarification and/or amendment, if not excising.

It would appear abundantly clear that it is going to be a very difficult,

and somewhat pointless, task to convert our present Constitution into

a, so-called, Republican manifesto via the "minimalist" approach. In

truth, this will not result in any meaningful change to the present

system unless, of course, there is a separate agenda to incorporate

real changes that are not germane to a Republican democracy.

PEOPLES' RIGHTS

When it comes to “human rights”, the real truth of their existence is that no “rights”

exist except those which can be sustained. And, if they can’t be sustained through a

Constitution and rule of law, the only other option for an individual is to protect his or

her, perceived rights, by force.

Much has been said about peoples' Rights but when it all said and

done there are really only 3 basic Rights. These are:-

(1) The Right to Life

(2) The Right to Liberty

(3) The Right to the pursuit of Happiness

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All other Rights stem from these, but like everything in Life, it must

be in balance. Rights, therefore, come with certain responsibilities

and the main one is that no individual can demand a Right of any

type that is at the expense of the Rights of another person. We seek

to appoint a Government for the principle purpose of protecting these

Rights of each and every Individual. The functions of the Government

must be subordinated to this responsibility.

When living in a Society the recognition of other Rights becomes

essential for the normal daily functions of its people and the

maintenance of their freedom. These other Rights are what I call

"subordinate Rights" for they are meaningless without the recognition

and acceptance of the three principle Rights stated above.

These "subordinate Rights" are

(1) The Right to privacy

(2) The Right of Free Speech

(3) The Right of Free Trade

(4) The Right to produce

(5) The Right to own property

(6) The Right to associate or not to associate

(7) The Right of self-defence

(8) The Right to worship freely

In our modern Society, and in fact, in many past Societies, freedom

and liberty are directly linked to what is termed "economic

independence". In essence, "economic independence" means having

sufficient purchasing power to balance the goods produced and

available for consumption. Unfortunately, under our current economic

and financial systems this can never happen because of the nature of

Credit creation and the woefully inadequate methods of distributing

purchasing power to the Society as a whole. Credit creation

represents a valuation of people's productive capacity, of their

abilities, their labour, their inventiveness, their foresight, their

planning for the future and, as such, the enormous power of credit

creation really belongs to the people - not to the Government - and

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certainly not to any select group of private individuals such as

Bankers. The creation of the Commonwealth Bank in the early part of

this century was an excellent example of the Government properly

administering their responsibility in respect to the peoples' ownership

of their power to create credit.

The history of the past 200 years has aimed at producing more with

less labour - we have seen an increasing acceleration along the road

to greater "efficiency", higher production, less labour, until now, when

we have arrived at the stage where this has become a reality. Along

the way though, we lost sight of the purpose of production - there is

only one true purpose and that is consumption. If we produce but do

not provide adequate means of consuming this production then the

whole process becomes futile. This futility leads inevitably to Trade

wars (as are now occurring throughout the World) and ultimately to

military wars to effectively destroy the stockpile of unconsumed

production. The root cause of this whole crazy cycle is our current

financial system that demands greater and greater production to pay

for the ever-increasing scale of credit creation. The side effects of this

so called "economic reality" is one of increasing pollution, increasing

unnecessary exploitation of resources, increasing degradation of our

earth, increasing alienation of people, increasing destruction of

anything that stands in the way of progress and increasing denial of

individual Rights. If we want to change this cycle, we must look to

changing the financial system that creates, and perpetuates, this

ongoing destruction.

After all is said and done, self improvement is the fundamental purpose of

mankind.

GOOD GOVERNMENT

Our present Constitutional Act uses the term ‘Good Government’ at

least twice, (Sections 51 and 52 under Part 5 - Powers of

Government), but nowhere does it define what is meant by ‘good’.

The Constitution bestows the responsibility on Parliament to provide

‘good’ Government but in neglecting to define the term, it opens up

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the question of ‘who's good?’ - Parliament's ‘good’ or the peoples'

‘good?’

The question of ‘good’ or ‘bad’ applies to only one single class of

entities on this earth and that is living creatures. The fact of life

makes the question of ‘good or bad’ possible. Life is the fundamental

value from which all values are derived. An action that sustains life is

‘good’ while one that destroys life is ‘bad’. This is the Code of Ethics

that the morality of individual Rights demands. Rights are a moral

concept - they are not automatic - they are not guaranteed - but, in

order to recognise this concept of Individual Rights, one must accept,

or acquire, a moral philosophy. Life, however, is a matter of constant

choice and even the acceptance of a morality that defines the Rights

of the Individual is, in itself, a matter of choosing. Thus, all decisions

involving our life and our well being demand we make a choice

between that which we consider "good" and that which we consider

"bad". Before we can make these decisions, we must have a set of

values to give us guidance for our decisions.

This set of values is our Code of Ethics and will help us decide what is

of benefit to our life and well-being as well as enhancing our search

for happiness. Provided these decisions do not encroach on, or deny

anyone else's rights, then they can be defined as ‘good’. ‘Good’

Government must be based on what is good for the life and well-

being of the citizens - of every individual citizen in the Society - it

must be based, therefore, on the Rights of the Individual. No Nation

of people can have any moral interest in a Government based on any

other foundation - no Nation should have an interest in being wrong.

Any change to the Constitution must be made with the intention of

being a change for the better thus opening the doorway to the whole

question of ‘good’ or ‘bad’. That question can only be answered by

going back to the philosophic basis of our Society and clearly

defining, and understanding, the philosophic parameters under which

those changes will be made.

CHRISTIAN FOUNDATIONS

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Christian principles form the basis of our Society whether we like

it or not. For the large majority of Australians, Christianity is at the

root of most of our heritage and traditions. The 10 Commandments

remain the cornerstone in establishing the Rules for living together in

a Society, and to all intent and purpose; these Rules are Universal to

most modern civilisations. Unfortunately, in modern society, the

cornerstone appears to be crumbling somewhat around the edges,

mainly; I would venture to say, because of International agendas, and

pragmatic Governments, who deliberately deny the concept of

Principles.

The Christian ideals of chivalry, service, sympathy and charity are no

longer the ideals of Society - the humanist approach has been

allowed to gain the ascendancy and now openly promotes

confrontation of sex against sex, race against race, children against

parents and wives against husbands. The humanist philosophy seems

to be aimed at destroying the concepts of marriage and family and at

the same time undermining the established traditions in any way it

can. The primary aim does not appear to be related to freedom of the

individual or the betterment of Society but more like the destruction

of the Christian principles that form the foundation of our community.

By destroying our set of value standards and not offering anything in

their place except, ‘there are no standards and it's everyone for

themselves’, the humanists are well on the way to achieving the goal

they seem to covet.

Much of this change in community attitudes has been actively

promoted by Government and, unfortunately, not very forcibly

opposed by modern day Religions. Both of these organisations have

come to see themselves as being more important than Society itself.

It is therefore, in my view, somewhat unproductive to try and argue

the merits, or otherwise, of the Constitution in terms of Christianity.

So many people in today's Society seem to hold religion in so low a

regard when dealing with their daily lives that they would have

difficulty in relating the Constitution to Christian Principles.

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The fact remains that the whole of the foundation of our Australian

democracy stems from the Christian roots of the British Monarchical

system and the resultant mass of Common Law that enshrines the

freedoms we so carelessly take for granted. No system is perfect and

I dare say none ever will be, but we should reflect on the alternatives

that abound throughout the world. There seem to be few, if any,

better than the one we have. This does not mean our present system

cannot be improved but improvements must build on the existing

foundations and not reduce, or destroy, the safeguards we already

have.

As Individuals, as citizens, as free people and as a Nation, the single

greatest danger we face is that of unchecked Government. This

includes our own Government as much as any foreign Government. If

we cannot control Government by Law then there is no other

recourse but force if we wish to avoid servitude. The examples of this

course of action have been amply demonstrated throughout history

and, in more recent times, it is especially horrendous in so many of

the Republican systems around the World. We need to learn from this

and ensure we do nothing to reduce or weaken the existing checks

we already have on the Government. In fact, we should take the

opportunity to enhance and strengthen these controls if we convert

to a Republican system.

CONSTITUTIONAL REVIEW

Our present Age has been one of great change. The future is likely to

see an increasing rate of on-going change, but our ability to foretell

the future with any degree of certainty is definitely one attribute that

humans seem to lack. It would therefore seem prudent to ensure that

any rewrite of the Constitution includes a Review mechanism. This

mechanism must be designed to allow THE PEOPLE a clear-cut

method of reviewing its effectiveness at defined, regular intervals.

On the basis that the Constitution is, or should be, principally about

protecting people from the arbitrary power of both the Government

and the High Court, the people must be able to censure both these

organisations when they overstep the philosophical basis of the

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Constitutional guarantees. One clear example of this is the Franklin

Dam issue when both the High Court and the Government bypassed

the intent and meaning of the present Constitution to override the

States in direct contradiction of Article 100. In my view, the issue was

one that should have been settled by a referendum of the people.

The High Court has never been authorised by the people to radically

change the Constitution.

There are many other examples where Parliament has attempted to

change the intent of the Constitution through Legislative avenues

without seeking the approval of the people. The Australia Act of 1986

is a classic example. The people must therefore have a means of

redressing these encroachments of their Rights and freedoms. The

people must be able to demand that Parliament put these issues to

the Nation through a Referendum. The type of Review system I would

like to see in place is, at least once every 5 to 10 years, each State

must hold a Constitutional Convention culminating in a National

Convention.

The format of each of these Conventions would require that they be

chaired by a person completely independent of Parliament, the Public

Service and the High Court.

The principle functions of these Conventions would be in three

separate and distinct areas

(1) To review any issue that relates to altering the Constitution

through legislation, or judicial decision, during the preceding

10 years, or prior period, if unexpected side effects have since

been seen to develop. The State Convention would have the

right to recommend to the National Convention that any such

issue should be put to the people in a referendum and, if

approved by a majority at the National Convention, the people

would then pass their verdict to accept or reject the issue.

(2) The second function is to examine any proposal from any

source that advocates a change in the Constitution. These

proposals may relate to anticipated future needs or to

strengthen or amend existing articles.

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The above procedure would require the proposals first be

presented to the State Conventions for consideration then

forwarded to the National Convention for endorsement, or

rejection, before being put to the people at a referendum.

This part of the review would allow both the State and

Federal Governments to submit proposals but it would also

open the process to any other interested organisation or

individual to make submissions.

(3) The third function is for the National Convention to convey

instructions to Parliament that they duly arrange a

referendum of any set of issues that the National Convention

decides should be put to the people.

By establishing a mechanism such as this, the responsibility for

controlling the Constitution will be placed squarely in the hands of the

people. No longer will Parliament be the main source of Constitutional

change where, virtually, the only changes that Parliament ever

proposes are those that result in increasing the power of the Federal

Government. This mechanism will also give clear guidance to the

High Court as to how the people view their Constitution and thus, the

considerations that need to be taken into account in future judicial

decisions.

I do not believe that any society of individuals nor, in the case of our

present Constitution, the States, ever intended to give arbitrary

power to a group of unelected people sitting in a High Court, to make

"landmark" decisions that effectively alter the Constitutional concept

and intent. The High Court is simply not empowered to make

interpretations of the Constitution outside of the original intent. If

they see a cogent argument for any such interpretation then they

have the responsibility, and duty, to put the case to the Government

on the basis that the issue must be decided by referendum. This

should have been the approach in both the Franklin Dam issue and

the Mabo case to name just two major examples.

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The Constitution also, I am sure, never intended to hand over our

sovereignty to a foreign power and the Government certainly has

never had the peoples' authority to bind this nation to the laws of any

outside foreign entity such as the U.N. The fact that the Constitution

gives the Government the authority to handle Foreign Affairs on

behalf of the separate States never included, or intended to include,

the right of any foreign power to interfere with our internal affairs. If

the people wish to do this then that is fine, provided they specifically

endorse this action in a referendum. By the same token, the

questions put to a referendum should always be specific and not of a

general nature, as has so often been the case in the past.

The Government is never to be trusted with any sort of "open

cheque" that they inevitably seem to use in ways never mentioned or

indicated initially. This means that each and every foreign

agreement, or protocol, which impinges on our laws and becomes

enforceable on Individual Australians in this country, must be

approved separately by referendum of the Australian people. If the

‘law’ is ‘good’, it will be carried but, if it is not, it will be defeated. The

people have more than enough commonsense to know what is right

for them and what is not. We neither need nor ask any Government

to tell us what is right for us. Governments are not there to tell us

what we should think nor are they there to give us what other people

think we should have.

There should be no major restrictions on calling referendums for any

of the above situations outside the periodic Constitution Reviews

suggested above. The principle considerations would be cost,

proximity to an election and the real urgency, if any, of the issue

concerned.

HEAD OF THE NATION

The single most critical function of any National Head, whatever

their title may be, must always be to act as the peoples' independent,

overriding check on the unfettered powers of any Government of the

day. To perform this task the National Head must be impartial and,

most importantly, ‘above’ politics. The system of selecting Governor

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Generals over the years has been relatively successful, except, the

parties in power have sometimes used their position to appoint

people whom they have judged to be favourable to themselves.

As it has turned out, some of the appointees, to their immense credit,

have apparently seen the import of their position and accepted their

higher duty of representing the Sovereign as the protector of the

peoples' rights and interests. Because the current Constitution retains

some, albeit, limited access to the Governor General as the Queen's

representative, the position ought to be an important bulwark and

protection against unbridled Government power.

In my view, any National Head must always have a set of reserve

powers identified through a set of 'guidelines'. These reserve powers

would be specifically intended for use in situations where the

Government breaches the Constitution. It is probably impractical to

lay down the Reserve Powers in specific terms in view of the difficulty

in foreseeing possible future political crisis. However, I do believe a

set of Guidelines would be achievable with the single ultimate

remedy, in all situations, being to send the Parliament back to the

people to pass judgment. There may be a reasonable argument for

the National Head to arbitrate in a crisis situation provided this could

never be used to compromise the National Office.

If the Monarch is to be removed as our final recourse, over and above

the National Head then, a wider majority than the Government in

power must approve the appointee. In my view the selection must be

approved with at least two thirds of both Houses of Parliament and, if

it were practical, with the approval of each of the State Parliaments

as well. I believe it would be an extremely unwise decision to replace

the Governor General with a purely ceremonial National Head. Until

the Constitution is rewritten to properly and adequately provide all

the guarantees the people need, and, until it codifies all the

necessary and ACCEPTABLE Conventions, then, we the people, must

have an avenue of protection from Government.

This is even more important with the increasing politicising of the

High Court that is rendering this body a less than reliable protector of

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Individual Rights. Any National Head must not be able to act in an

independent political manner and, in this respect; the current checks

on the Governor General seem to work admirably. The position

should only assume an active participation in the political system

when events trigger the need to apply the Reserve Powers.

From this standpoint, it would not seem prudent to open the

appointment to contested popular vote simply because no candidate

would have any sort of platform to present. Any contest under these

circumstances would ultimately be a popularity vote that, in the

longer term, would probably lead to politicising the position. The

timing of any such popular vote would also become very crucial. If it

were to coincide with a General Election then it would be extremely

difficult to separate it from political contamination. Similarly, if it were

held between General Elections then it risks being used to either

endorse or criticise the Government's performance. With the process

of popular election, it is easy to see candidates inevitably being

forced into developing some form of agenda to clarify the choice. If

this occurs, it would effectively destroy the whole concept of

independence from the political process. I believe a popular vote

would not contribute to unifying the Nation - if anything its effect is

more likely to be divisive.

I do not subscribe to the argument that the Federal Government

should have the sole right to appoint the Head of the Nation on the

basis that it is a Federal office. Allowing the sitting Government to

make the appointment is both false and unacceptable because; the

Head of the Nation is a National office representing and supported by

all Australians. This is quite clearly distinct and separate from a

Federal Government that is usually elected on the support of about

50% of the voters. Furthermore, the appointment by the Government

alone cannot but help put the office in the arena of State and Federal

politics. It then makes it difficult to ensure a truly non - political and

non - partisan nominee will be, both, appointed and be seen to be

appointed. I do not believe any Government of the day should have

the power to remove the Head of the Nation - the position is not that

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of a vassal of the Government - it is a position of a protector of the

people from the Government. Any possible removal of the Head of

the Nation should only be permissible on the grounds of incapacity to

carry out the duties or for a proven breach of the Constitution. Any

action seeking to impeach the Head of the Nation should only

proceed through the same process used for the appointment. This

would seem fair and just, provided it excludes the Government being

able to act alone in either case.

NOTE - I much prefer to use the term Head of the Nation rather than

Head of State for the very good reason that ‘State’ is analogous with

Government whereas ‘Nation’ relates to people. I presume that when

you talk about the Head of State you mean the Nation's titular Leader

and not the Government’s?

THE JUDICIARY

In the light of some of the more recent controversial decisions of

the High Court and the obvious attempts by Governments to

politically load the Court in their favour, the question arises as to

what limits need to be placed on this body. This then gives rise to the

question as to what remedy is available when these limits are

exceeded.

The Mabo case is an example of judicial legislation where their

decision created a defacto law in contradiction to existing law. In my

view the court has exceeded its’ jurisdiction because it was not ruling

on an interpretation of the Constitution but made an independent

political decision. The High Court's jurisdiction, as I read the

Constitution, limits them to ruling on the basis of existing law or the

Constitution. Where there is no law to interpret the High Court does

not have the authority to make up a law to suit themselves.

Their duty is to point out any anomalies where they consider

Government action is warranted, and hand the question back to the

political process for resolution. A similar situation occurs with the

Franklin River issue where there was a clear-cut conflict of intent

between interpretation of Section 51(XX1X) and Section 100.

Nowhere does the High Court have the authority to arbitrarily change

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the intent of the Constitution and especially not on the basis of so-

called "public opinion" when that opinion had never been tested

nationally by referendum.

Issues of conflict such as this need to be dealt with through the

political process and, if they involve changing the intent of the

Constitution, then they must go to referendum. I simply do not

believe that the Constitution ever intended that any, and all, foreign

treaties, signed by the Federal Government, would automatically

override State authority. If they had so intended, then surely, such a

crucial issue would have been included in the original agreement

between the States and the Federal Government. By its' action the

High Court seems to be setting itself up as being above Parliament

and above the Constitution.

The whole question of the Judiciary really comes back to the question

of, ‘What is the philosophic basis of our Society and our Constitution?’

I believe this philosophic base has to be the cornerstone of every

High Court decision relating to the Constitution. Our Society's

philosophic base is Christianity and the traditions of the British

Monarchy, dating back to the Magna Carta. This includes the whole

body of Social history and experience encompassed in British

Common Law, all of which fundamentally deny the principle of

arbitrary decision making.

The High Court has become an organisation that, like the

Government, sees itself as more important than the Society that

created it. Both are becoming organisations to be feared. When did

Society pass a decree saying that the High Court is always "right"?

When was our Society ever asked if they wished to pass this cloak of

infallibility onto the shoulders of any group of men or women? What

if the High Court's decisions are ‘wrong’? If a relatively small

group of learned people on a High Court cannot reach an unanimous

decision on really crucial questions then, surely, that is proof that any

decision is questionable? Whenever there is even one voice of dissent

in High Court decisions, the issue needs to be handed back to the

people for resolution in a referendum.

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The people are the ones' who must have the final say as to what laws

they wish to accept in the governance of their Society. They have

agreed to delegate this to their Parliamentary system - they have not

delegated this to an unelected High Court and it is highly

presumptuous of the Court to think so. Under a Republican system

the role of the High Court, when dealing with Constitutional issues,

needs to be clearly defined to ensure their decisions cannot be

allowed to change the purpose and intent of the Constitution.

COMMANDER IN CHIEF OF THE ARMED FORCES

As the Governor General, under our present Constitution, is the

Commander in Chief of the Armed Forces of Australia, this issue is

one that will require review when considering any change to the

position. The very clear primary role of the Armed Forces of Australia

is the defence and protection of Australian Citizens from foreign

aggression. If the role of the Armed Forces is to be enlarged to cover,

for instance, International ‘peace’ keeping then the role ought to be

approved by the people of Australia, irrespective of any treaty

signed. If the Armed Forces are to be deployed in any foreign conflict

they would then be doing so in the knowledge they have the support

of the Australian people. This was not so in the case of the Vietnam

conflict and, as a result, a considerable amount of division was

caused in the Australian Society.

Once the Australian people indicate their support of any such activity

then the final decision of the conditions applying to deployment

ought to be agreed to by Parliament rather than the Government

alone. This suggestion is based on the fact that any overseas

commitment concerns all Australians and not just an elected

majority.

On the basis that the principle of swearing an oath of allegiance will

be maintained by the Armed Services, (and for that matter, by

anyone who is required to so swear allegiance) then such allegiance

must be sworn to the Australian People with the promise to uphold

the Constitution. It should not be an oath to the Government or to the

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Head of the Nation unless it clearly states that both are purely

servants and representatives of the people.

I do not believe there should be any avenues open for the Armed

Services to become a political tool of the Government to enforce

policy in what would be classified as a civil matter. Where

Government policy is of such major concern as to contemplate the

use of the Armed Services to quell civil dissatisfaction then, clearly,

there is something drastically wrong with the policy. By the same

token, there should be no possibility of the Armed Services becoming

the tool of any single person, such as the Head of the Nation.

Provided adequate Constitutional checks are in place to ensure the

Armed Forces are only used for their proper function, as stated

above, then it would seem infinitely preferable to make the Head of

the Nation the Commander in Chief rather than any other personage.

A LIVING CONSTITUTION

Finally, if we are going to fundamentally change our governmental

system, and alter ‘our’ Constitution in, what will be, a profoundly

different conception, then we must make the Constitution a ‘living’

document of which all Australians can be proud. In America, and also

in Indonesia, to name but two countries, their Constitutions are just

such ‘living’ documents. Their Constitutions are taught in schools,

they represent the founding philosophies of these Societies - people

live by their Constitutions and use the fundamental principles as part

of their daily lives. This is not to say that those Constitutions are by

any means perfect, but their origins, in both cases, stem from the

people. The original intent was always to protect the people from the

unlimited and despotic power of Government.

The fact that Governments, over the years, have systematically

ignored and corrupted these original principles does not detract from

the true intent and purpose of the Constitutions. We need to make

every effort to prevent this corruption by both Governments and the

High Court by identifying the weaknesses and eliminating them from

our Constitution. Our Australian Constitution has never been a

"living” Constitution - it has never had a sense of belonging -

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principally because it has never been a ‘peoples’ Constitution. It is

based in the philosophy that Governments are the source of power

and it is for this reason there has never been any effort to promote a

widespread understanding or knowledge of the Constitution.

The other reason for the general lack of comprehension about the

Constitution is that the legal profession and the politicians have

effectively, hijacked it. Together they have developed a so-called set

of conventions relating to how they want the Constitution to work.

Because these conventions are not committed to the written word,

the ‘hijackers’ are able to play the game ‘Jokers wild’ with the whole

pack stacked against the people. What we need to do is take this

opportunity to convert ‘our’ Constitution into a ‘living’ document by

making it relevant to the everyday life of all our citizens. If we spell

out the real source of all authority - the people - if we spell out the

axioms that we hold true - that each of us is entitled to our own lives,

to our own liberty and to our own endeavours in the pursuit of our

own individual happiness - then this document will become

meaningful.

We need to proclaim these truths and to make sure everyone knows

that the Government - the Parliament - the Laws - the Courts - the

Defense Forces - and the financial System - are there for our

protection and to do our bidding - and not vice versa. If we can grasp

this opportunity and spell out our Nation's philosophy then it matters

not one whit whether we are a Monarchy or a Republic. What matters

is that the people have proclaimed their Rights and enshrined the

concept that Systems, Governments, Public Services, work for us - for

the benefit of our Society – and, WE DO NOT WORK FOR THE BENEFIT

OF THE SYSTEMS.

This submission covers my line of thinking which hasn’t significantly changed

with the passage of time.

CHAPTER 12REPUBLIC v MONARCHY

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Although the Republican issue generated a lot of media

attention, there was very little real discussion about the

proposed changes to the Constitution. As a result, I became

involved in writing letters to the Editors of papers and

producing a number of articles as well as a newsletter. I used

the Internet to distribute a lot of this information, but to a

large extent, it came down to preaching to the converted.

Two examples of the articles are illustrated below, one being

the article, ‘Republic v Monarchy’ and the other, ‘To be or not

to be’.

Republic v Monarchy

Once again, the Republic v Monarchy question raises its head and, once again, the real

issues are being ignored. The people are being hoodwinked into believing that the

panacea to all our problems revolves around the issue of a ‘Head of State’. This is a

deliberate deception to divert the attention away from any discussion addressing

the fundamental and antiquated principles upon which the Australian

Constitution is based.

Believe you me, the Republican question is not about a Head of State - what it is about

is control of the Australian Constitution and making sure the Australian people never

have a direct means of changing the Constitution to say, and mean, what they really

want.

Essentially, there are three groups of people with a vested interest in the

Republican question as it relates to the Constitution. One of these groups is the

Legal Profession that, basically, was instrumental in writing the Constitution in

the first place. The other group is the Politicians - to whom the present

Constitution gives the power to rule the people of Australia. The third group is the

people - whom the present Constitution decrees shall be those that are ruled.

Both the Legal Profession and the Politicians are split into factions comprising Federal

or State interests with each faction having its share of Republican or Monarchist

sympathisers. What both these groups are doing is having an each way bet for it doesn't

matter who 'wins' as long as the Lawyers and Politicians get to control any changes to

the Constitution.

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The people, on the other hand, are force fed Government sponsored, and taxpayer

funded, propaganda based on the "red herring" that the Republican question revolves,

virtually exclusively, around the question of the selection, and appointment, of an

Australian "Head of State". Were this true, the Constitution could be amended with one

sentence saying that, “The Governor General shall henceforth be called the ‘Head of

State’ and shall always be an Australian Citizen”. That truly is a 'minimalist' change to

the Constitution which is the proposition the Republicans were trying desperately to

promote the last time. On that occasion, their minimalist change included many other

more subtle amendments that, actually, would have resulted in a massive increase in the

powers of the Federal Government.

Never at any time was there any discussion about how the people might, rightly,

and properly, assert their ownership of the Constitution and use the opportunity

to better control, and limit, the political process and the excessive powers of the

politicians. Politicians are supposed to be elected as representatives of the people,

but in truth, they are elected as representatives of a political party that demands

their total allegiance above all else.

No rational person who has actually read the present Constitution can logically, or

honestly, argue for retention in its existing form. The people who want to retain it

do so, not on the basis of reason, but purely on the basis of vested interests.

Generally speaking, the Politicians love it because, in truth, it was written by

politicians to begin with, and most of whom were Lawyers as well.

The ‘Founding Fathers’ set it up as they wanted it, with the aim of providing maximum

flexibility for themselves. They included 29 direct Clauses to amend the Constitution

without having to go to Referendum. In addition, these ‘Founding Fathers’ made sure

their familiar system of unwritten 'conventions' would fully apply, as this is the

fundamental basis upon which the Constitution operates. Many of these conventions

totally contradict the actual wording of the Constitution, or in other cases, simply

ignore what is written to allow the Government of the day to function in a manner that

suits itself. The Legal Profession which, at its pinnacle sits the High Court, also loves

the Constitution because it is the goose that lays the golden egg for them.

No one but the Judges sitting in the High Court have the assumed power to

interpret the Constitution, and they believe they have complete freedom, as well as

unchallengeable authority, to interpret it in any way they want.

They are not governed by precedent,

they are not governed by Law,

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they are not governed by morals,

they are not governed by principle,

they are not governed by National responsibility

they are not governed by any form of accountability

and they are not governed by any rule of unanimous agreement.

Every split decision of the High Court of Australia is decided on the basis of

prejudice, personal beliefs, whim, party loyalties, political affinity, and/or personal

'opinion'. What is worse is that many decisions hinge on the personal views of one

man. Any decision of the High Court can be overturned by any future High Court

and virtually every decision so far made by this highest Court in the land has,

itself, raised further questions as to its interpretation. No legal decision is

definitive and no law of the land is definite, because the Constitution itself is such

an abortion of a document. It can be challenged under almost any pretext, subject

only to permission of the High Court to allow the challenge. But, it can only be

challenged by those with the power, the money, the influence and the backing of

vested interests, whether financial, political or commercial. Ordinary people are

totally denied the right, or opportunity, to challenge anything in the Constitution,

or the Laws made by Politicians in direct contradiction to the Constitution.

Nor are they able to challenge the many immoral and illegal actions and decisions

made by government ‘Leaders’ or Ministers of the Crown. Until such time that

the people of Australia stand up for their rights and assert their authority as the

fountainhead of all political power, they shall continue to be ruled, and dictated to,

by the very people who are supposed to represent them.

A proper Constitution is the only legal, non-violent, means through which the

people could exert control over their politicians, but as the present Constitution

stands, it provides absolutely no control whatsoever. Changing the 'rulers' every

few years in no way changes the way they act. The history of the past 100 years

clearly proves this.

What the people have to decide is whether they want to retain the present

Constitution and simply change the name of the political system from a

Constitutional Monarchy to a Republic. OR - do they want to change the

Constitution and make it a true, and proper, ‘Peoples Constitution’ with real

authority over the Politicians, the Institutions, the Legal Profession and the

Financial Organisations that control all our lives?

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The Republican debate is the only opportunity the people have had in the last 100

years to even raise this question, and if they don't make the most of it this time

they will not be given another opportunity.

All this is a question of Philosophy - it is Philosophy that has gotten us into this

mess and it is only Philosophy that will get us out of it. What we want is a

Democracy where the people control, and limit, the political, legal, economic and

military powers that they delegate to their elected Representatives.

There is a better way to ensure these powers are used for the benefit of all

Australians and that way is through the people asserting ownership of their

Constitution and having the sole authority to propose, and initiate, changes.

Graham L. Paterson (1999)

TO BE OR NOT TO BE?

To vote and how to vote - that is the question.

To change to a Republic or keep the Constitution we now have?

These are the questions you will be asked to answer in November this year. This

November’s Referendum might well turn out to be the most crucial Referendum in

Australia’s history.

Believe it or not, the Constitution of Australia is the most important piece of paper

in all our lives.

If you think this is something of an over-statement, - consider for a moment - what is it

that controls, directly and indirectly, every aspect of your life? The fact is, it’s the

innumerable never-ending Laws made by Government after Government that controls

our Society. And who, or what, gives these Governments the right to make these Laws?

You do through your Constitution. And who, or what, should say which Laws the

Government can or cannot make? Again, you do through your Constitution.

The November Referendum

In November this year, we will be asked if we want to change to a Republic - but -

nobody is telling us that there will have to be amendments made to 84 of the 129

Sections of ‘our’ Constitution if we do so.

Do you think the Government is going to put each of these amendments to us in

another Referendum and seek our approval?

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Answer - Absolutely not .

Who is going to make these changes? - how and when are they going to be made?

Answer - Nobody knows or nobody is saying .

Will Australians be given the opportunity to examine and then approve the re-

written Constitution?

Answer - again definitely no!

Can we trust any politicians with such a task?

Answer - You’ve got to be joking!

Before we vote let us stop and think for a moment.

What are the likely results and benefits that might come from the Referendum?

Answer - first of all, the obvious result will be a lot of bitterly disappointed people in

Australia no matter which decision is made. Secondly, if the only achievement is a so-

called “minimalist” Republic then absolutely nothing will change in terms of the

politics. The ‘benefit’ will be in a huge expenditure of wasted funds in converting the

sprawling Government Bureaucracies to a Republic with nothing more than a name

change.

Is there any real logic in this? - is there, perhaps, some other reason why this

decision is being forced on us at this time?

Answer - Certainly, there is no obvious logic in why the question of a Republic is

being forced upon us. Just because a new Millennium is on the doorstep is not a rational

reason for promoting this sort of deviousness on the Australian Public. As for whether

there is any sort of ‘hidden agenda’, it is no secret that there are many Politicians, and

others, that want to see the Senate cut down to size and made subservient to the House

of Representatives. There are just as many who would like to see all the Reserve

Powers of the Governor General removed so that the position is no longer that of an

independent arbitrator in the event of a Political dispute.

Today’s Australia

So- where does that leave us?

Probably the best starting point is to define exactly where we stand, constitutionally, at

the moment. Very few people seem to have any idea of exactly what sort of

Constitution we currently have. This applies to the Monarchists and the Republicans as

well as about 95% of the rest of Australians who have never even read the Constitution.

Even amongst the academics, Lawyers, Judges and Politicians there is very little

common ground. About the only thing that is commonly accepted is that we have a

Federated Constitution.

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What exactly do we really mean when we say we have a Federated Constitution?

To start with, having a Federal Constitution means that the Constitution is essentially

an agreement between a number of different autonomous and sovereign State

Governments (or Colonies as they then were) as to how they will share ‘power’ with a

Central, or National, Government. As for being a Constitutional Monarchy - that went

out years ago and was, supposedly, formally killed off by the Australia Act of 1986.

The Queen, and her heirs and successors, have absolutely no influence whatsoever

in Australian affairs.

Officially, Australia could have become a sovereign and independent Nation in 1920

when it was admitted to the League of Nations. A formal attempt was made to

recognise this with the Australia Act of 1986 when all the last remaining vestiges of

royal prerogative were again, supposedly, removed from the States’ Constitutions.

So - if we are not a Constitutional Monarchy - what are we?

We certainly are a democracy - at least to the extent that we still have a vote as well as

a degree of free speech and we are not yet ruled by a dictatorship. But what sort of

Democracy do we really have - after all Stalin’s Russia was a ‘Democracy’ as was East

Germany - people had a vote but they didn’t seem to have much ‘power’ or say in the

way things were run

The Question of ‘Power’

It is when we come to this question of ‘power’ that the waters start to get muddied.

First of all, it is necessary to make sure we define what is meant by the term ‘power’,

particularly in a political sense.

Political ‘power’, when it is finally resolved to its lowest common denominator,

simply means “control over people”.

The question then arises - ‘Who authorises this ‘power’ which all Governments lust for

and covet so jealously?

In part, the answer is ‘you’!

The problem is ‘we’ have, fundamentally, inherited a Constitution over which we have

very limited choice or control. When we start to talk about the origins of the

Constitution the ‘muddy waters’ really begin to swirl.

In order to know what sort of Constitution we have inherited we need to understand the

mentality and philosophy of the people involved with creating it. Our present

Constitution was put together at the 1897/8 Constitutional Convention by 50 ‘elected’

delegates made up of 10 representatives from each of the 5 colonies, N.S.W., Victoria,

S.A., Tasmania and Queensland. W.A. did not participate in the Convention.

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The fact that the delegates were ‘elected’ is almost solely due to the efforts of Dr. John

Quick. If it hadn’t been for his initiative and persistence, starting in 1893, it is doubtful

that the politicians of the day would have allowed any public participation at all. The

other significant and crucial part of Dr. Quick’s, quote, “novel and unprecedented

proposal” was that each Colony should put the draft Federal Constitution to

‘referendum’. These two factors have a major bearing in determining the real

nature of “our” Constitution.

What we have as our Constitution is a document put together by ‘elected’

representatives of the ‘people’ and then subsequently approved and agreed to by a

‘majority’ of ‘people’ in 5 separate colony referendums. Therefore, to all intent and

purpose, the Australian Constitution fulfills the fundamental requirements of a

Republican Constitution.

What the Constitution really does is form a Federal Republic of Australia known

as the Commonwealth of Australia.

This is probably a hard pill to swallow for many people but, according to Brian

Gallagan, it hinges on the commonly held definition of a Republic. According to the

Oxford Dictionary, a Republic is defined as ‘A State in which the supreme power rests

in the people and their elected representatives or officers, as opposed to one governed

by a king or similar ruler; a Commonwealth’.

The Macquarie Dictionary defines a Republic as, ‘a State in which the supreme power

rests in the body of citizens entitled to vote and is exercised by representatives chosen

directly or indirectly by them’.

Professor George Winterton, a renowned Constitutional authority, has also defined a

Republic in the following terms, ‘A republic is a State based upon popular sovereignty,

in which all public offices are held by people deriving their authority from the people,

either through election by the people or appointment by officers themselves elected by

the people’.

Even the Republican Advisory Committee acknowledges that Australia is, ‘a State in

which sovereignty resides in the people and in which all public offices, except that at

the very apex of the system are filled by persons deriving authority directly or indirectly

from the people’.

Essentially, the Republican Advisory Committee is wrong in their inclusion of the

exception. In respect to the Head of State being the Queen, a very significant fact

seems to have been deliberately overlooked.

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In 1900 the ‘people of Australia’ deliberately chose to appoint the reigning Monarch as

Australia’s Head of State - it was their choice - the Monarch was never forced on the

Australian people as any sort of pre-condition for acceptance of the Constitution. The

fact that the Monarch reigns over us is purely and simply because ‘we’ choose it to be

so.

In terms of the Queen’s powers and authority in the realm of Australian

Government and Australian politics they are simply non-existent.

The Queen herself clearly acknowledges this when she stated at Balmoral Castle in

September 1993, ‘We will accept the decision of the Australian people and the advice

of their Government whenever they wish to change the position of Head of State’.

What this means is that the fictitious Queen of Australia is as much subject to the

supreme authority of the people of Australia exactly as are the politicians and the

Prime Minister.

Some Historical Facts

While the above discussion seems to be quite straight forward and, factually, difficult to

argue against on a rational basis, there is one factor which does not sit comfortably.

This factor concerns the ‘elections’ of 1897 and the ‘referendums’ of 1899. In 1897, the

population of Australia numbered well over 3 million people and by 1900, it was close

to 3.8 million. However, the people eligible to vote numbered less than 15% of these

figures. The exact figures for the 1899/90 Referendum show that 422,788 voted for the

Constitution and 161,077 voted against.

The ‘yes’ vote only represented 11% of the then population of Australia.

The ethical question is whether this represented a true indication of the voice of the

people of Australia at the time or whether it might be construed as a ‘rigged’ vote?

Brian Gilligan, in his book, ‘A Federal Republic’ chose to ignore this question

preferring to talk about ‘the vote of the people’ as being the clear and definitive proof

of our Republican origins for the Constitution.

True democracy was not something the politicians of the day were even remotely

concerned about. Universal suffrage was a concept completely beyond their grasp and,

even if it were to be raised, which it never was, it would have been laughed out of the

room. Only people with property and means were eligible to vote in colonial times. and

except for certain limited positions in South Australia, women were definitely not

allowed to vote. This is where the mentality and philosophy of our so-called ‘Founding

Fathers’ comes into play in trying to determine the real fundamentals and principles

embodied in the Constitution.

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Why ‘Our’ Constitution is what it is

Although a small percentage of Australians voted for the Constitution, it is not a

‘people’s’ Constitution in the true sense. The ‘people’ really had nothing to do with its

creation - it was drafted by Politicians and Lawyers of the day - all of whom had a

vested interest in maintaining the status and privileges enjoyed men of property and

means. As it turns out the Federal Constitution is simply an agreement between the

Colonies as to the ‘powers’ they were prepared to cede to a Federal Government.

It is written from the belief that the Colonial Governments of the day were the supreme

authorities and that the Colonial Parliaments represented the fountainhead of authority.

It is this belief that is carried over to the Federal Constitution - it is because of this that

there is no mention of people’s rights in the Constitution.

Furthermore, it is because of this belief that the ‘Founding Fathers’ wrote 39 provisions

into the Constitution that allows Parliament (meaning the political party in ‘power’) to

change the Constitution without a Referendum. It is also because of this belief that the

Westminster type of Parliament was chosen where the greater part of its functioning is

governed by unwritten Conventions.

Our ‘founding fathers’ knew full well how party politics worked and the role of a

Prime Minister, and a Cabinet, in the political system. Yet they deliberately chose to

ignore these vital and fundamental parts of the Parliamentary system, and instead, write

in a system that has never operated as it is described, even from its inception.

Although it is glossed over in our history books, it is highly doubtful that more than 1%

of the electors, voting at the Referendums in 1899 and 1900, ever actually read the final

draft of the Constitution. What the electors were asked was whether or not they

supported a Federal Government under a Federal Constitution. They were not asked to

vote on the Constitution as such, but only to accept the Constitution that had been

drafted on their behalf by the ‘elected’ representatives.

These are the reasons why we have the Constitution we now have and these are the

reason why the Constitution does not declare, loud and clear, that ‘We the people’ are

the owners of the document and that ‘We the people’ are the real and proper source of

authority for our Commonwealth.

Graham L. Paterson (1999)

CHAPTER 13

REFERENDUMS

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As it turned out in November 1999, the people rejected the Government’s concept

of a Republic and this result was then portrayed as further proof of the difficulty

in amending the Constitution. In truth, this rejection is in keeping with all the

other Referendum rejections, and far from representing a difficulty; it represents

a display of common sense on the part of the people. Australians are an

independent mob, and they resent having things rammed down their throats, as

was the case with the Republic Referendum. People were not really part of the

process and chose not to accept the Government approved Republican option that

was presented to them. The reason so many Referendums get rejected is because

the majority of amendments are proposed by the Government and most of them

represent an increase of the Federal Government’s powers. Another part of the

reason for rejecting the amendments is because; the Government attempts to

steamroll other, often unrelated issues, at the same time.

Since federation, Australians have only voted in 19 referendums to alter the

Constitution. The 19 Referendums have included 44 separate proposals for

change. Only eight of these proposed changes have succeeded and each of these

seems not to represent an increase in the Government’s powers.

The 1967 referendum, which proposed deleting Section 127 from the Constitution,

because it stated that Aborigines were not to be counted in the Census, was

overwhelmingly endorsed by 90.77% of the voters. The reason why this was the

most “successful” referendum result is easily explained. The vast majority of voters

who had never read the Constitution were appalled when told about this blatantly

racist Section 127 in the document.

One of the sneaky parts of this Referendum was the removal of the phrase, “other

than the aboriginal race in any State” from Section 51(xxxvi).

This appears quite innocuous and in keeping with the mood at the time, to

eliminate the racist bias against Aborigines, which was deliberately included in the

original drafting of the Constitution. What the public was not told is that it would

hand over power to the Commonwealth Government to administer Aborigine

affairs in conjunction, or conflict with, the States. Whether this is a good or a bad

thing is not the issue; what is the issue is that the ramifications of creating a huge

new bureaucracy by deleting this phrase was not spelled out at the time of the

referendum. Unfortunately, this appears to be the modus operandi of all

Government proposed amendments. The people are asked to decide on a relatively

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simple question without being given the full details of how the amendment is

intended to be implemented and its ultimate ramifications.

As with all previous Referendums, the Government tried to slip in another

unrelated amendment in the 1967 Referendum in the hope it would ride on the

back of the popular sentiment to rid the Constitution of its racist content.

This second amendment was to do with the composition of Parliament and, like the

majority of Government sponsored amendments, had nothing to do with any

benefit for the people, but everything to do with benefiting the politicians.

To their credit, it was clearly evident that the common sense of the people prevailed

and they rejected this amendment. It is obvious that most of the 8 accepted

amendments, as highlighted in the following table, are not perceived as increases in

Government power, but are more in line with limitations on what powers the Federal

Government can exercise.

Subject Government Date % in favourSenate elections Deakin 12 December 1906 82.65Finance Deakin 13 April 1910 49.04State debts Deakin 13 April 1910 54.95Legislative powers Fisher 26 April 1911 39.42Monopolies Fisher 26 April 1911 39.89Trade and commerce Fisher 31 May 1913 49.38Corporations Fisher 31 May 1913 49.33Industrial relations Fisher 31 May 1913 49.33Trusts Fisher 31 May 1913 49.78Nationalisation of monopolies Fisher 31 May 1913 49.33Railway disputes Fisher 31 May 1913 49.13Legislative powers Hughes 13 December 1919 49.65Nationalisation ofMonopolies Hughes 13 December 1919 48.64Industry and commerce Bruce 4 September 1926 43.50Essential services Bruce 4 September 1926 42.80State debts Bruce 17 November 1928 74.30Aviation Lyons 6 March 1937 53.56Marketing Lyons 6 March 1937 36.26Post-war reconstruction anddemocratic rights Curtin 19 August 1944 45.99Social services Chifley 28 September 1946 54.39Organised marketing ofprimary products Chifley 28 September 1946 50.57Industrial employment Chifley 28 September 1946 50.30Rents and prices Chifley 29 May 1948 40.66Powers to deal withcommunists and communism Menzies 22 September 1951 49.44Parliament Holt 27 May 1967 40.25Aboriginals Holt 27 May 1967 90.77Prices Whitlam 8 December 1973 43.81Incomes Whitlam 8 December 1973 34.42Simultaneous elections Whitlam 18 May 1974 48.30Mode to alter the Constitution Whitlam 18 May 1974 47.99Democratic elections Whitlam 18 May 1974 47.20

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Local government bodies Whitlam 18 May 1974 46.85Simultaneous elections Fraser 21 May 1977 62.22Senate casual vacancies Fraser 21 May 1977 73.32Referendums-Territories Fraser 21 May 1977 77.72Retirement of judges Fraser 21 May 1977 80.10Terms of Senators Hawke 1 December 1984 50.76Interchange of powers Hawke 1 December 1984 47.20Parliamentary terms Hawke 3 September 1988 32.92Fair elections Hawke 3 September 1988 37.60Local government Hawke 3 September 1988 33.62Rights and freedoms Hawke 3 September 1988 30.79Convert to a Republic Howard 6 November 1999 45.13Add a Preamble Howard 5 November 1999 39.34

Links to the 19 Referendum from 1906 to 1999 can be found at

http://en.wikipedia.org/wiki/Australian_referendum

1906 · 1910 · 1911 · 1913 · 1916 · 1917 · 1919 · 1926 · 1928 · 1937 · 1944 · 1946 ·

1948 · 1951 · 1967 · 1973 · 1974 · 1977 · 1984 · 1988 · 1999

It is interesting that the Federal Government has made 2 unsuccessful attempts to

have Local Government recognised in the Constitution, presumably, as the first

step in regionalising Australia and undermining the authority of the State

Governments in this area.

Although the method of proposing changes to the Constitution is not specifically

stated, or defined, in the document, it has been tacitly accepted that the

Government has the monopoly in this process. The actual Constitutional

requirement is that any proposed amendment can only be put to Referendum after

being passed by an absolute majority of each House of Parliament. How, where

and by whom the proposals are initiated is not covered and it is, probably, only on

the basis of an unwritten convention that the politicians have adopted their claim

for monopolising the process. As the last 100 years of Referendum history has

proven, the politicians are the very worst source for proposing amendments.

I would confidently guarantee that a majority of citizen initiated amendments

would easily achieve referendum success if the people were to demand their right to

propose changes to what should be ‘their’ Constitution.

In my submission to the Republican Advisory Committee I wrote on the issue of

the people’s involvement in any Constitutional Review process. In my view, a

major key to ownership is having the authority to propose changes to the

Constitution. This is distinct from the current position where the people only have

the option to accept or reject changes proposed by the Government. Invariably,

those proposed changes are intended to extend the powers of the central

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Government. Allowing the ‘people’ to propose changes to the Constitution

appears, at first sight, to be an impossible concept. When I was challenged to put

my money where my mouth was, I came up with an outline for a Periodic

Constitutional Review Process that could take place every 5 to 10 years. The

process would give any interested person, organisation or State and Central

Governments, the opportunity to propose changes. The proposals are first

assessed by independent State bodies, culmination in an independent National

convention to determine which proposals the Government of the day must put to

the people in a Referendum.

A detailed outline for a possible Periodic Constitutional Review Process is

contained in Appendix 1.

CHAPTER 14ECONOMIC DEMOCRACY

It is an obvious fact that the quest for any type of freedom in this day and age, has

very limited meaning if it is not accompanied by a sense of economic freedom. This

does not mean that everyone has carte blanc to anything they desire. What it does

mean is that the nation’s financial system needs to be set up for the benefit of the

people and not for the exclusive benefit of bankers to create interest bearing credit

out of nothing.

One of the most important sections in the present Constitution, and in fact, in any

Constitution, is a provision authorising the Government to establish a viable

financial system for the benefit of their Nation. The Australian Constitution has

such provisions in Section 51, Subsections (xii) and (xiii). These read,

The Parliament shall, subject to this Constitution, have power to make laws for the

peace, order, and good government of the Commonwealth with respect to:

(xii) currency, coinage and legal tender

(xiii) banking, other than State banking: also State banking extending beyond the limits

of the State concerned, the incorporation of banks, and the issue of paper money.

Unfortunately, the Australian Government has only used this provision effectively

once in the last 110 years. That was for the short period from 1911 to 1923 when

the Commonwealth Bank of Australia was formed and operated as a truly

“people’s Bank”. It was specifically chartered to fulfil this role, and did so very

successful, under the Chairmanship of Sir Dennison Miller. The creation of this

Bank came about as a result of the very strong advocacy by Andrew Fisher and

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King O’Malley M.H.R. When speaking to the House of Representatives in

September 1909, O’Malley stressed the need for a ‘peoples’ bank’ with the

comment, ‘We have before us the greatest question that has yet been submitted for

our consideration. It involves Australia’s national supremacy in finance, and the

peace, good government and prosperity of generations yet unborn ….’

Long before the creation of this Constitution and the Commonwealth of Australia,

the economic development of virtually every country has been controlled by the

private banking fraternity.

Mayer Amschel Bauer Rothschild was reported to have made this statement in

1791, ‘Allow me to issue and control a nation's currency and I care not who makes

its laws’.

Under our present financial system, around 97% of the ‘money’ in our society is

created as credit from the private banks. The Government creates the remaining

3% in the form of coins and paper notes. The financial system of a society should

be designed for the benefit of the people and must be controlled by the people

otherwise, as is now patently clear, the system dominates the people instead of

being their servant.

The reason the private banking system has been able to dominate the lives of so

many people in so many countries was also explained by Rothschild, 'The few who

understand the system, will either be so interested from its profits or so dependent on

its favours, that there will be no opposition from that class.'

MONEY AND THE BANKS

In spite of the huge array of academic definitions, and conflicting opinions when

trying to describe the meaning of money, in reality, money is nothing more than a

“ticket” system that replaces the cumbersome process of barter trade. Money is

designed to provide a more convenient mechanism for the exchange of goods and

services. It is simply a tool of exchange because it represents the link between

production and consumption. Money is not a ‘commodity’, although it has now

been subverted to that role through the growth of foreign exchange markets. The

primary motivation of these, essentially, non-productive markets, is to make a

profit from trading and gambling on the exchange rates of international

currencies.

In a philosophical sense, money represents a moral principle that any trade should

be an exchange of value for value and that is the code of honest people.

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Money is the material expression of the fundamental principle of human relations

– a principle that people must deal with each other on the basis of mutual benefit.

Unfortunately, today, that code is all but broken because the accumulation of

money by any means has become an overwhelming obsession. That obsession still

prevails, notwithstanding the fact that no currencies in today’s world have any

intrinsic worth. None are officially exchangeable for physical assets such as gold or

silver as they were under the, now obsolete, ‘gold standard’ system. All currencies

are entirely dependent on an act of faith that people will accept these paper

‘tickets’ and coins in exchange for goods or services. This is very true of the

current US dollar which is often said to be backed, “The full faith and credit of the

United States”. Essentially, it is a question of confidence and, as the vast bulk of

today’s ‘money’ is created out of thin air by the banking industry, and more often

than not, is simply an electronic record on a spreadsheet, the industry itself rests

solely on a foundation of ‘confidence’.

However, money is also the touchstone to the virtue of a society. When trade

becomes governed by compulsion rather than consent, as is happening with so

many ‘free’ trade agreements, when the ability to produce is controlled by people

who produce nothing, when money flows to people and corporations with

influence, when corruption is rewarded and honesty becomes self sacrifice, this is

clear evidence that the society is on the wrong path.

In a rational world, production has one single purpose and that is consumption. If

production does not lead to consumption then the whole exercise is a waste of

energy and resources.

The danger imposed by money lenders has been well recognised and documented

as far back as Biblical times, but little attention has been paid to how money

lenders came to exist or where their ‘money’ came from. That is a story in itself,

but we do know that money lenders organised and eventually became the source

that evolved into the banking system we have today.

Thomas Jefferson made this statement in 1802, ‘I believe that banking institutions

are more dangerous to our liberties than standing armies. If the American people

ever allow private banks to control the issue of their currency, first by inflation, then

by deflation, the banks and corporations that will grow up round the banks will

deprive the people of all property until their children will wake up homeless on the

continent their fathers conquered…’.

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The truth of this foresight has certainly come to pass in today’s United States of

America and the European Common Market zone.

The way private banks operate is well documented, such as the 1924 confirmation

from Mr. McKenna, the Chairman of the Midland Bank in the UK. He explained,

‘Every bank loan and every purchase of securities by a bank creates a deposit and the

withdrawal of every bank loan and the sale of securities by a bank destroys a deposit’.

More recently, Robert B. Anderson, Treasury Secretary under Eisenhower made

the statement in 1959, ‘[W]hen a bank makes a loan, it simply adds to the borrower’s

deposit account in the bank by the amount of the loan. The money is not taken from

anyone else’s deposit; it was not previously paid in to the bank by anyone. It’s new

money, created by the bank for the use of the borrower.’

The Banking system is allowed to create this fictitious “money” through

Governments legitimising the fractional reserve banking system. This system,

supposedly, restricts the creation of credit to a ratio of the amount of deposits the

Bank has on its books. The obvious anomaly arises because; most of the deposits

are derived from credit created by the Banks.

It is interesting to note that it is a criminal offence for an employee to use his

employer’s money without permission, even though it may be paid back at a later

date. In essence, that is exactly what the Banks are doing. They make use of the

depositor’s funds to create 10 to 20 times the original deposit as interest bearing

loans. In the case of some accounts, the banks pay the depositor a miniscule rate of

interest compared to the interest they earn from the immoral use of the deposits as

reserve funds.

In real terms, the assets of a Nation are represented by the progress its population

achieves towards the improvement of their society, originating from their

individual and collective efforts. The liabilities of a Nation are all forms of

restraint that limit this progress, and Governments, in collusion with the banks,

are a major restraint.

Governments are not inherently wrong or unnecessary, as long as they observe

their principle purpose of protecting the ‘rights’ of the individual, administering

the standards deemed appropriate by the society and providing the basic essential

services required by a society. While those in favour of a totally “free market”

claim that the ‘market’ will provide all the necessary control, their hypothetical

position ignores the influence of human nature. The fact is, a “free market” can

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only exist in a world of honest people, and human nature guarantees that such a

world will never exist.

The granting of credit is, in reality, based on the potential of the population’s

effort, energy, initiative and ingenuity to provide goods and services, but it is also

used to control and restrain the effectiveness of this productive effort. When credit

is issued to promote gambling through share trading on the stock markets and

speculative hedging in commodities and currencies, it serves no productive benefit.

Banks and financial institutions are the major players and beneficiaries in these

international casinos that produce nothing in terms of real wealth except the

paper tickets which have become worshipped as ‘wealth’.

A LICENSE TO CREATE MONEY

A very small minority of retail banking business is done using actual cash – the

vast majority is a bookkeeping exercise in keeping track of financial transactions.

Today, the bulk of these transactions are done electronically as a result of the

banks providing interest bearing overdrafts and loans. What is not generally

recognised is that every overdraft and loan is created out of nothing. The simple

proof of this is the fact that no customer of a bank has ever had their deposit

reduced because it has been lent out to someone else as a loan.

Under the ‘fractional reserve’ lending system, banks are allowed to extend credit

(create money as loans) in a sum equal to many times their deposit base. The way

the system works is illustrated by the following example: For every $1 which

people – or the government – deposit in a bank, the banking system can create, out

of thin air and by the use of a computer keyboard, some 10 or more dollars of

credit ‘money’. It can lend all that fictitious ‘money’ into circulation at interest

just so long as it has the $1 in reserve to back it up. As mentioned above, the

anomaly in this system is that the bulk of ‘reserve’ deposits are, themselves, made

up of interest bearing debt created by this enormous ‘Ponzi’ scheme.

That banks actually create money with accounting entries has been confirmed

time and time again. This fact has been published in a booklet by the Chicago

Federal Reserve titled Modern Money Mechanics. The booklet was periodically

revised until 1992, when it reached a total of 50 pages. On page 49 of the 1992

edition, it states: ‘With a uniform 10 percent reserve requirement, a $1 increase in

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reserves would support $10 of additional transaction accounts loans created as

deposits in borrowers' accounts’.

The 10 percent reserve requirement is now largely obsolete, in part because banks

have figured out how to get around it with such devices as overnight sweeps. What

chiefly limits bank lending today is the 8 percent capital requirement imposed by

the Bank for International Settlements, the head of the private global central

banking system based in Basel, Switzerland.

If a Nation with its own bank were to observe this capital requirement they could

fan their revenues into 12.5 times their face value in loans. Since the Nation would

actually own the bank, it would not have to worry about shareholders or profits. It

could lend to creditworthy borrowers at very low interest, perhaps limited only to

a service charge covering its costs; and it could lend to itself, or to its Municipal

Governments, at as low as zero percent interest. If these loans were rolled over

indefinitely, the effect would be the same as creating new, debt-free money. In

essence, this is exactly how the original Commonwealth Bank of Australia

operated.

Of course, the private banking system claims that a nationally owned bank is

dangerously inflationary. The banks resort to every type of misleading and

dishonest accusation to justify their claim. However, if the money created by a

Nation’s Bank is used to create new goods and services and when the money

increase balances the production, prices will remain stable. Fundamentally, price

inflation results when the increased money supply (demand) exceeds the

production of goods and services (supply).

The monopoly on the creation of money and credit by a private banking fraternity

has resulted in a malfunctioning credit system which must, inevitable, lead to a

monetary collapse.

To get out of this debt trap requires an injection of new, debt-free money into the

economy, something that can best be done through a system of public banks.

These banks would be dedicated to serving the public interest by administering

credit as a public utility. Because the private credit system is designed exclusively

to serve the interest of the bankers, the creation and promotion of, fundamentally

unproductive and speculative financial products, has all but destroyed the

relationship between production and consumption. Eventually, this unrealistic

financial system arrives at a point where it becomes unsustainable and begins to

break down. These cycles of boom and bust are intrinsic to the adoption of this

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fraudulent system, as is clearly seen from the evidence over the past few hundred

years. When the Governments allow the Banks to increase the ‘money’ supply

through the creation of excessive credit, inflation is the inevitable result as the

excess ‘money’ chases the available goods. The Governments, in collusion with the

Central Banks, try to dampen the rising inflation through manipulation of the

interest rates and taxation. Rising interest rates reduce the demand for credit and

result in slowing down the economy which often turns into a recession. Because

nearly all modern societies have been conditioned to rely on a steady stream of

credit to sustain their standard of living, the end result for many people, as well as

the Governments, is a state of perpetual debt.

Any manipulation of this credit stream impacts on the rate of consumption, which

in turn, flows through to the production chain. This production/consumption

relationship is further exacerbated when jobs are sent offshore, and as more

people are put out of work, the rate of consumption drops. This cycle forces more

companies to re-evaluate their operations and seek ways to reduce costs in order

to retain their profit levels. The first target for reducing costs is, invariably, the

labour force which is downsized as it is replaced by further automation and/or out

sourcing.

While most Governments accept a degree of inflation as inevitable, and beneficial,

it also tends to be self perpetuating as every business builds an inflation allowance

into their pricing. The people who bear the brunt of inflation are the consumers,

particularly when their purchasing power is reduced through a credit squeeze or

unemployment. When the consumption level drops and producers are forced to

reduce prices, the consumer reaps the benefit and the prospect of any such

deflationary cycle becomes abhorent to businesses and especially the Government.

A Government’s record in trying to control and manipulate their economy is so

abysmally appalling that recessions are constantly recurring events. Virtually, the

only known Government remedy to prevent a recession developing into a

depression is “deficit spending”. There is a huge amount of misunderstood and

misleading connotations surrounding this term “deficit spending”, mainly because

of the mistaken belief that the macroeconomy of a monetary sovereign nation is

the same as the microeconomy of a household budget. The comparison does not,

and cannot apply. Private and household spending can only occur through earning

an income, using savings, and/or borrowing, which means they must finance their

spending prior to the fact. Clearly, the private sector has budget choices and

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cannot permanently sustain increasing debt. Government spending is exactly the

opposite because, a monetary sovereign Government, such as Australia, being the

issuer of the currency, is not inherently revenue constrained. They can simply

spend without the necessity of seeking funds in advance.

Up until 1971, much of the world’s major economies were tenuously linked to a

partial gold standard system through the internationally “accepted” Bretton

Woods agreement. Governments had been coerced into giving up their monetary

sovereignty in exchange for a floating basket of currencies centered on the US

dollar. Until then, the US dollar still retained convertibility to gold, but only in

respect to international holdings. Theoretically, and in practice, as long as the gold

standard was in effect, the money supply of a nation was restricted to the amount

of gold a government held in its reserves or the amount of money it was able to

borrow. Consequently, if a nation went into recession it had no choice but to go

into debt by borrowing ‘money’, either through privately owned Banks, or issuing

interest bearing bonds in the hope “investors” would buy them.

However, all this changed in August of 1971 when the cost of the Vietnam War

caught up with the US; forcing President Nixon to default on the remaining

promise to exchange international dollar holdings for gold. That decision altered

all the existing rules stemming from the now obsolete gold standard era. A new era

of fiat currencies entered the world stage.

In reality, from August 1971 on, governments around the world used fiat currency

as the basis of their monetary systems even though many governments did not

understand, or conceive, the impact of this change. This system had two defining

characteristics: (a) its non-convertibility to gold; and (b) flexible exchange rates.

This was a major shift in the history of “money” that fundamentally altered the

economic policy ideas prevailing under a ‘gold standard’.

The logic of the gold standard system was no longer applicable to the flexible

exchange rate- non-convertibility conditions and cannot be rationally translated

or used in the fiat currency era. Unfortunately, irrationality prevails, and far too

many people still apply the gold standard parameters to the fiat currency system.

Under a fiat monetary system, “state money” has no intrinsic value and survives,

purely on the “faith” of the holder that it can be exchanged for goods or services.

Given that a monetary sovereign Government is the monopoly issuer of the fiat

currency, then the spending by the government is actually independent of the

amount of revenue it can raise. It can spend however much it likes subject to there

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being real goods and services available for sale if it wants to avoid uncontrolled

inflation. This is a dramatic change in economic policy philosophy which is

completely misunderstood by most people and most economists. There is no such

concept of the government being “out of money” or not being able to afford to

fund a program. How much the national government spends is entirely of its own

choosing. There are no financial restrictions on this capacity.

While there clearly are restrictions on government spending, as defined by the

quantity of real goods and services available and the levels of unemployed in a

society, these are not financially constrained in the fiat currency system. However,

a Government’s spending decisions, along with taxation and borrowing decisions,

have significant impact on interest rates, economic growth, private investment,

and price level movements, all of which can constitute further restrictions.

Any limits a government chooses to set, in terms of economic growth, are purely

voluntary in the world of fiat currencies. Thus, the size of the budget deficit and

the growth in public debt is really, in truth, only of concern when it is unrelated to

the productivity and consumption capacity of the nation. Unfortunately,

aggressive war mongering and creating money for military spending comes under

the “unrelated” concerns, as does the huge expenditure involved in “security” to

protect nations from the propaganda driven fear of “terrorism”, as so succinctly

pointed out in the quote from Vincenzo Vinciguerra, above.

In a fiat currency system the government does not need to finance spending by

issuing interest bearing debt through their monetary authority or the treasury.

This is a fundamental departure from the gold standard mechanisms, where

borrowing was necessary to fund government spending, because the money supply

was fixed by the quantity of gold. Taxation and borrowing were intrinsically tied

to the government’s management of its gold reserves, which in turn, determined

the nation’s capacity for growth. In essence, this was quite a ridiculous situation

and unrelated to the needs of a growing economy. If insufficient gold were

available to a nation, its growth could only be achieved by going into debt and

borrowing funds from private sources.

Depressions are incredibly tragic and cynical exercises, artificially engineered by

the finance industry and the rank stupidity of cowardly Governments who refuse

to challenge the ‘power’ of private finance.

During times of depression, the workers and factories are left sitting idle because

of the ridiculous claim that no physical activity can take place unless there are

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sufficient ‘tickets’ available. All the real assets of a society remain in place and

available; assets such as, productive capacity, technical knowledge, labor force,

raw materials and energy supplies. A system of public credit could put them back

to work again.

‘The notion that ‘money’ is something that has to be ‘saved’ before it can be

“borrowed’ misconstrues the nature of money and credit. Credit is merely a legal

agreement, a ‘monetisation’ of future effort, a promise to pay later from the fruits

emanating from the advance. Banks have been creating credit out of thin air and

issuing it as interest bearing debt for hundreds of years. While this system has

worked quite well for the banks it has led to an ever growing debt burden on the

shoulders of the public. A public banking system overcomes that problem by

returning the interest to the public purse thus, reducing costs and reducing

taxation.

Government systems are like living organisms with a life of their own and are

imbued with all the determination to maintain their existence. If adequate checks

and balance are diminished, or eliminated, this will ultimately lead to

totalitarianism. In essence, that is the position of the Bankers who are attracted to

the logic of a world, planned and controlled like a machine. As a step in this

direction, the Commonwealth of Australia is already a limited liability

Corporation registered with the US Securities and Exchange Commission. This

makes all the Australian citizens the guarantors of the financial system which is

the ultimate beneficiary.

(logo can be deleted if permission not obtained)

COMMONWEALTH OF AUSTRALIA CIK#: 0000805157 (see all company filings) SIC: 8880 - UNKNOWN SIC - 8880State location: DC | Fiscal Year End: 0630(Assistant Director Office No 99)Business Address 1601 MASSACHUSETTS AVE NW C/O AUSTRALIAN EMBASSY WASHINGTON DC 20036

Releasing humanity from the necessity of continuous toil has, until recent times,

been the antithesis of Government control over their populations. Hence; every

Government has colluded with the Bankers by using the financial system to

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manipulate production and divorce it from its true and proper purpose; that of

consumption. This is clearly the present situation throughout the world where

production has been encouraged without any relation to the ability of consumers

to acquire the products - except by going into the servitude of debt, which is now

becoming beyond their ability to service.

It is difficult to question principles which are regarded as axiomatic. Whilst there

is continuous conflict regarding the best form of Government; seeking a choice for

a suitable alternative, or even the necessity for having a Government at all, has

only been challenged by a few ‘fringe’ groups. Essentially, there is no difference

between the principles of modern Government and those of a repressive tyranny.

Both are based on the infringement of personal liberty – the only difference is one

of degree.

Contrary to what the anarchy-capitalists believe, for society to function, certain

courses of action on the part of the individual need to be proscribed in the general

interest of the community. In terms of the defective economic and social systems in

place today, it will remain impossible to eliminate all forms of deviant behaviour

because; the very system itself is a battlefield of conflicting interests. As C, H.

Douglas pointed out, “The supposition that individuals can be regarded as controlled

units is a fundamental mistake in ethics, in rational thinking and in the management

of people”.

As was proven with the advent of the depression era during the 1930’s, the

outstanding prosperity between 1921 and 1929 was brought to a halt by the action

of the privately owned, but government sponsored and endorsed, United States

Federal Reserve Bank. They raised the rates of call money to fantastic levels and

called in loans, irrespective of the interest rate offered. Then as now, the Bank

offered the hollow excuse that they acted to prevent worse consequences if they

had delayed. In the mind of the Federal Reserve, the only worse consequences

than those of the Great Depression was the risk of having some of the big banks

fail. From a banking standpoint, the successful outcome of this action was the

concentration of financial power into the hands of an elite group of bankers who

owned and operated the Federal Reserve Bank. This gave them the opportunity to

acquire real time assets at fire sale prices. The banking system can only look at the

industrial system from a financial standpoint. To the Banker, the industrial

system must be made to work for their benefit even it means sacrificing every

other interest.

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Most Governments foster the belief that their primary problem is to maintain full

employment and induce prosperity through increased trade. People are led to

believe the easiest way to achieve this is by capturing foreign markets, hence the

push for “free markets” and the globalisation of world trade. The motivation for

‘free trade’ is less about trade, but more about constraining the policy options of

governments through treaty.

Embarking on this path has only one destination and that is war. In this modern

world, there is only one force superior to that of finance and that is military force.

Unfortunately, there is a strong vested financial interest in modifying the methods

of war rather than removing the motive for war.

THE MYTH OF ‘FULL’ EMPLOYMENT

As far as history goes, the last 200 years have seen an exponential progress along

the path of producing more with a continuous reduction in human effort.

In other words, progress has been aimed at putting people out of work and

providing them with more leisure time to enjoy the fruits of their inherited

advancement. Unfortunately, Governments, and societies around the world, have

been totally unable to grasp this simple fact. Politicians have been enslaved by the

doctrine of ‘full employment’ because it used to be the mantra of the financial

industry that the only way a person can justify their existence is to work for their

living. Too many people work on the principle, ‘There is no such thing as a free

lunch’, but they ignore and take for granted, all the benefits they have inherited

from past innovation, inventiveness and achievements of their forebears.

Under the current financial system, the employee on wages can never have

sufficient purchasing power without going into debt.

This is easily illustrated in what is known as the A+ B theorem. Where A = the

wages received by the employee less income tax deductions and any

superannuation deductions, if applicable, and B = all the ancillary costs in

producing any product, such as, the cost of raw materials, an amortised

proportion of the capital costs, overhead costs, taxes and a profit margin.

A realistic proportion of wages to the above group of production costs is in the

order of 25 to 30%. Thus, the purchasing power of the employee will always be

about a quarter, or a third, of the total price of any product.

Because wages represent the principle purchasing power of the majority of the

population, there can never be sufficient to purchase the goods produced. As a

consequence, the population is forced into perpetual debt to the Banks in order to

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achieve the standard of living that is constantly thrust upon everyone through

media bombardment.

This provides a very powerful incentive for the Government to maintain the status

quo in coordination with the Banking industry. It also represents a major problem

in equating production with consumption because that revolves around the need

for sufficient purchasing power to acquire the products at their nominated price.

That problem is offset by encouraging people to go into debt. By acting in concert,

the Banks and the Government aim to make it as easy as possible for the

consumer to tie the rope around their own neck.

‘Full’ employment has many side benefits for a Government and, in particular,

the financial industry. ‘Full’ employment provides a tax flow to the Government

and thus an effective control over the people of the nation. However, the last 200

years of industrial history is in direct conflict with a policy of maintaining ‘full’

employment. The aim of increased efficiency has resulted in greater production at

significantly reduced labour costs. Automating the industrial process, especially

through the introduction of the computer chip, has advanced this aim. As a result,

‘full’ employment is no longer a viable, necessary or possible aim for a

community, except at the expense of wasted energy and resources. This has a

number of dire consequences for the society in not only reducing the potential tax

revenue for a Government, but more importantly, greatly reducing the purchasing

power of the unemployed people. This directly impacts on consumption levels, as

unemployed people are reluctant, or unable, to go further into debt.

This situation creates another conflict for the finance industry which has

perpetuated the ‘holy grail’ of increasing consumption through the provision of

interest bearing credit to all and sundry, via the ubiquitous credit card. In recent

times, that conflict has been overcome by the creation of questionable financial

products which have allowed the banks to make huge profits without the necessity

of supporting the manufacturers and employers. With the government stepping in

to underwrite the widespread gambling that has occurred in the derivative

market, there has been less need for the big banks to worry about defaulting loans

or increasing unemployment. Prudent banks have always been reluctant to make

loans when the repayment potential is in question.

Because this myth of ‘full employment’ is unquestionably accepted around the

world, the developing nations have enticed overseas investors to set up business

through the promise of cheap labour and quick profits. Ironically, it has been

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noted that developing countries with their own natural resources, do not actually

need the foreign investment that traps them in debt to outsiders. ‘Applying the

State Theory of Money [which says that a sovereign nation has the power to issue its

own money], any government can fund, with its own currency, all its domestic

developmental needs to maintain full employment without inflation’. (Henry C K

Liu, Asia times online)

This has been soundly proven by the example Argentina in the years 2003 to 2005.

When Nestor Kirchner was elected President he reined in the IMF and eventually

kicked them out of the country entirely. The significance of Kirchner’s moves

must be seen in the context of the economy he inherited in 2003. The country was

bankrupt, having defaulted on $100 billion of its debt. The economy was in a

depression, its gross domestic product having declined by over 16 percent that

year. Unemployment stood at 21.5 percent and 53 percent of Argentines had been

pushed below the poverty line. Argentina had been the poster child of Latin-style

globalization. The program of radical economic restructuring imposed by the

financial liberalisation turned out to be the root cause of the collapse. These ‘free

trade’ policies brought down the trade barriers faster than most other countries in

Latin America. They radically liberalised the nation’s capital account through a

comprehensive privatisation program involving the sale of 400 state enterprises.

This included privatising airlines, oil companies, steel, insurance companies,

telecommunications, postal services, and petrochemicals. Although the

International community threatened Argentina with collapse when they opted to

default, this did not happen. The government chose to reinvest their available

funds in the nation’s economy instead of sending it outside to service the debt.

Kirchner adopted a managed float for the Argentine peso, domestic price controls,

export taxes, sharply increased public spending, and caps on utility rates. This

historic debt initiative was successful in throwing off the shackles of neoliberalism

forced on the country through the policy of ‘free market’ capitalism. Instead of

collapsing, the economy grew by a remarkable 10 percent per year over the next

four years.

Poverty and economic insecurity are two factors that exert the greatest strain on

human nature. Economic warfare is a contributing cause of these factors and the

only difference between economic warfare and military warfare is in method and

not in principle. The World Bank and the International Monetary Fund are

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leading the charge in the field of economic warfare and their principle weapon is

the globalisation of world trade for the benefit of international corporations.

CHAPTER 15

THE GLOBAL MARKET

THE PHILOSOPHY, CONCEPTS AND HYPOCRISYby

Graham L. Paterson

July 1997MULTINATIONALS

Multinational Corporations are obsessed with one thing and one thing only - PROFIT!

In the Corporate World, however, ‘PROFIT’ can mean different things to different

people.

In the main though, what it means is MORE.

More Money

More Market share

More Control

More Power

More Freedom to do whatever they want in their own best interests.

One thing Multinationals are not about is helping people in the long term.

Multinationals are here today to make a PROFIT, once the profit margins fall below the

perceived, necessary Corporate targets, they will pick up the hems of their tatty dresses

and move on, leaving their dirty laundry behind them.

Multinationals will suck anybody and any Country dry - they will extract all that is of

value to them and, without the slightest hesitation, turn their backs and abandon those

that helped achieve their initial primary goals.

The GLOBAL MARKET is a Con Trick.

It is a short term aberration which will, and must, lead to a world wide conflagration.

For anyone, or any country, to survive under this absolutely stupid and monstrously

corrupt International Financial System, we are told we have no choice but to ‘Export or

perish’.

Under this totally ridiculous concept, it becomes imperative for every Country to strive

for a “favourable Balance of Trade”.

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Clearly, even on the most superficial and simplest analysis, this is a manifestly

impossible goal.

So what will happen? - Every small Nation will be systematically raped - everything of

possible value to the Global Market will be bled from the Country’s resources at the

lowest possible price.

The empty hulk that remains will be left to rot away and disappear exactly as we see in

the ‘micro economic’ examples of Ghost Towns, abandoned Factories and deserted

Farms.

Never before in our short history of ‘Civilisation’ has there been an opportunity for

Global Marketing on the scale that is now possible.

Never before in our history, has there been such a huge potential for National and

International disaster.

We are talking about ‘Macro Economics’ here on an International scale and this time it

won’t be just towns and farms and factories that will be abandoned - it will be whole

Nations.

When everybody tries to Export, and Markets become saturated, there will be no other

choice but to destroy the overproduction.

The most ‘efficient’ way the World has found to do this throughout History, is to have a

War.

This is exactly where Global Marketing is headed - controlled destruction of

overproduction by deliberate planned warfare, orchestrated by the major International

Cartels, who strive for, and probably will, ultimately control the World’s economy.

Governments will become more and more meaningless as National Borders are

destroyed or become irrelevant.

People become less and less meaningful as they are judged and assessed purely in terms

of their economic capacity.

More and more, this is becoming apparent, even today. If you don’t produce you don’t

eat, - if you can’t produce you don’t eat - if you can’t produce you can’t earn money -

if you can’t earn money you can’t consume production - if you can’t consume

production, at a profit to the producers, then you are a useless economic unit in the

overall Agenda of the Global Market.

Social values have no economic equivalent in the Global Market - Social Values simply

represent a drain on the Profit Potential and, except to the extent that Multinationals

must pander to the whims of some basic Social norms, every effort must be made to

minimise their impact.

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Social Values do not produce consumers except at a cost to the Producers. Isn’t the

whole thrust of ‘modern economic thought’ aimed directly at reducing costs and

‘maximising efficiency’?

‘Maximum efficiency’ will only be achieved when machines do all the work and

‘labour’ costs are, either, eliminated or made negligible.

So - there you are - this is the ‘Brave New World of Global Marketing’ - this is the

‘Super Highway’ that the world has jumped on without a thought to where it is headed.

Why is everyone careering down this highway at breakneck speed? Why is everyone so

all fired up to reach their own disaster as soon as they can?

Why don’t our supposed ‘Intellectuals’ tell it how it really is? Why do they bury their

collective heads in the sand, too frightened to look at the destruction they have mapped

out ahead of us?

Do you know the reason why? Because they have been bought and paid for - they sold

out years ago to the corruption of the Financial System that dictates all our lives in this

world of today.

There is not one Government in the World today that is independent enough or

courageous enough to operate in the interests of its people.

Every Country is controlled by International Economic considerations which are

totally, and exclusively, a product of the financial system that we, by abject default,

have allowed to govern our whole lives.

Systems are made for people - people are not made for systems - so why have we

surrendered ourselves, our Countries, our Societies, to the grotesque stupidity and

monstrous inequities of a Financial System, controlled by a relative handful of

powerful, International and incestuous financial Institutions that effectively dictate to

the world, who will survive and who won’t.?

On our journey to this ‘Modern World” we have been sidetracked and now we are all

running like crazy on the wrong path.

There is no point in running faster if we are on the wrong road to begin with - we will

never get to the destination we want until we change direction.

The trouble is, we have lost sight of our needs, - we’ve allowed our wants to replace

our fundamental needs with the result that, all people can see before them now, is their

‘want’ of material possessions. This is compounded by their ‘want’ of money - their

‘want’ to be better than their neighbours - their ‘want’ to destroy the opposition - their

‘want’ to beat their competitors - their ‘want’ to strive for “excellence” but only being

able to define, “excellence” in material terms.

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What most of us have lost, and the rest of us are losing, more and more every day, is

our ability to understand the needs of people, the needs of families, the needs of

communities and the needs of Societies.

Sure, there are people who talk about these things - sure, there are Groups and

Organisations that try to do something concrete to redress the imbalance - but there are

very few who are game enough, or capable enough, to speak out about the cancerous

Financial System that is the root cause of our decay.

The few that do try to speak out are very quickly silenced or destroyed, or, if neither of

these tactics works, they are vilified and ridiculed.

Publically, any voice speaking out against the existing Financial System is silenced - it

is axiomatic that the realities of the Financial System must never be questioned or

examined in any logical way.

Certainly, the public must never get to understand how it is that the System controls

their lives.

As long as the Financial System controls the Governments of Countries throughout the

World, no Government will be in a position to question the authority of those people

who control the Financial System.

Strangely enough, Financial Systems, Budgets, inflation, economics, currencies,

exchange rates, balance of payments are only words invented by ‘Man’ - these ‘things’

do not exist in Nature in the way that reality demands we recognise the air, water, trees,

fruit, vegetables, animals, flowers and the myramid of other things that make up our

life on this planet.

These words that are invented by ‘Man’, are used to describe events that can take place

through the practical application of a Philosophy.

Whether we believe it or not, our lives are governed by Philosophy - each of us,

whether we recognise it, whether we espouse it, even when we don’t know it,

conduct our affairs on the basis of 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 this ability to choose any Philosophy we like to determine

how we wish to live.

Some people choose the Philosophy that it is OK to lie, cheat, steal and murder if it is

their best means of surviving.

Others, and, unfortunately, this includes the vast majority of us, make the choice to

accept whatever philosophy we are told is best for us.

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Philosophies have no intrinsic worth unless they are translated into some form of

practical application.

A Philosophy must become a Policy before it can be transformed into a System which

will affect people.

But why, you might ask, do Systems, or Policies, or Philosophies relate to people?

The answer is that only people - human beings - can philosophise - only people can

translate Philosophies into Policies - and only people can transform Policies into

Systems - and only people can run Systems.

If we want to live in a 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

each of these Groups.

Certainly, everyone could have their own System but, without some form of common

agreement and common understanding, the end result would be chaotic, to say the least.

The fundamental reason we live in a Society is because of the benefits we get from

mutual cooperation, from joint effort and from mutual protection.

We should not live in a Society that is of no benefit to our mutual well-being and

happiness but, unfortunately, through necessity rather than choice, many of us do.

It comes back to this question of Philosophy - which Philosophy should we adopt as the

basis for establishing the Systems that, together, go to make up the type of Society we

wish to live in.

Once we abdicate the responsibility for determining the Philosophy that is ‘best’ for

Society and simply accept, without question, the Philosophy someone else says is ‘best’

for us, we automatically establish a ‘Power’ structure

‘Power’ is a meaningless term without people! - ‘Power’ in its basic essence is control

of people. – It is nothing more and nothing less. ‘Power’ can be used for ‘Good’ but

mostly it is used for ‘evil’.

As has been proven time and time again throughout History - ‘Power’ corrupts and

absolute ‘Power’ corrupts absolutely.

So, where does our Financial System fit into this picture?

Being a System means, by definition, that it is run by people - every System must be

based on some structure that is derived from a Policy.

The Policy of the Financial System is that only certain people and certain Institutions

shall have the ‘right’ to create ‘Money”.

In modern terms what we define as ‘Money’ is, in reality, ‘Credit’.

Unfortunately, this ‘Credit’ is always created as a Debt to the Banking System.

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This Policy is based on the historical Philosophy that all wealth is the property of the

‘Ruling Classes’.

Even with the advent of the, relatively modern, phenomena of the ‘Democratic’

Society, the historical Philosophy has not changed nor have the Policies derived from it.

Governments today assume the role of the ‘Ruling Class’ and make all financial

decisions - not based on what is in the ‘best’ interests of ‘their’ people - but what is in

the ‘best’ interests of the Financial System to which they conform.

This Financial System has been finely tuned over the Centuries by the inheritors of the

bulk of the World’s wealth. The System is now so firmly entrenched that no

Government is willing to challenge it.

In reality though, this Financial System is a very fragile ‘house of cards’ based on the,

completely, unreal premise of the Fractional Reserve System.

This allows Banks to create ‘Credit’ out of absolutely nothing based on the extent of

deposits which, themselves, are primarily ‘Credits’.

As all ‘Credit’ is created as a debt to the Financial Fraternity, this monopoly to create

‘Credit’ is effectively the most powerful tool in the World to control people.

The fragility of this spurious System is that no Bank in the World has sufficient

Reserves to ever meet the demands of their depositors in the event of a ‘run’ on a Bank.

It is only because of the almost universal lack of understanding of how the System

works and a blind ‘faith’ in the Banking System that the System has survived at all. It is

also helped by more than a little coercion and a very considerable amount of blatantly

biased legislation that makes it extremely difficult for lesser players, or individuals, to

contest the validity of many of the Banks’ unsavoury actions.

What is more important though is that virtually every Government in the World is in

Debt to the Financial System - and this Debt is forever increasing.

No country ever seems able to get out of Debt. WHY?

Precisely to whom is this Debt owed?

Almost exclusively, it is owed, eventually, to the Private International Banking

Fraternity even though some of it is funded through various, supposedly, independent

International organisations such as The World Bank and the International Monetary

Fund.

No Government is, in truth, able to defend a full scale ‘run’ on the Banking System

within its boundaries.

In the context of the ‘Global Market’, a ‘run’ on any major Bank in any country will

automatically expose the whole financial System to collapse around the World.

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The enormity of the incredible stupidity of mankind to allow a man-made System to

control their lives so completely and utterly is beyond comprehension.

It is Philosophy that has gotten us into this mess and it is only Philosophy that will

get us out.

THE ARGUMENT FOR A “FREE MARKET” SYSTEM

There are many advocates for the philosophy of a ‘free market’ system, devoid of

any Government interference at all. Realistically, they must concede that such a

system cannot exist without some standards being observed. The question is how

will such standards be established, maintained, implemented, and where

necessary, enforced? Basically, this confirms that any philosophy is simply an idea

that will remain meaningless until it is translated into a policy which can be

converted to practical use as a system. Any system, applying to a group of people,

automatically becomes a form of “government”.

People who deny the need for any such ‘organisation’ base their claim on the

theory that the “free market” concept can take care of all contingencies. To them,

any form of ‘government’ represents a hindrance to the proper functioning of the

“market”. This concept is quite correctly based on the belief that rational and

competent individuals in a society have the right, and responsibility, to make a

free choice on how to conduct their life. And it might just work in a society of

totally honest people. Unfortunately, the fact of human nature has confirmed that

such a society doesn’t exist, never has, and if history is any judge, never will. If we

assume for a moment that a “free market” is a workable concept, and each

member of the society has the same opportunity, the freedom to choose, and

recognition of the accompanying responsibilities, the theory of a “free market”

without need of a Government, may offer an alternative existence. However, it

would only be workable if it conformed to a set of universally agreed rules. The

basic rule would have to be honesty in any transaction between individuals.

Unless the system of a “free market” is confined to barter trade, the introduction

of some form of acceptable exchange media (money) would have to be agreed by

the community, and by extension, the overall society. Creating and issuing any

media of exchange is essentially the same as issuing a voucher, or a “ticket”, and

that really is the essence of “money”, whether it is in the form of a coin or a paper

note. How this might be best accomplished is the crucial question.

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Every individual could create and issue their own “tickets” because, after all, these

“tickets” do represent each person’s potential to produce something that someone

else wants. As long as that something is of acceptable quality and serviceability,

then that person’s ‘tickets’ would be deemed valuable. The problem with this

system would be the vast variation in the number and style of “tickets” created

and the subsequent problem in valuing one lot of “tickets” in comparison to

others. The obvious solution is to create a single universally accepted “ticket” that

can be used by the whole community, and ultimately, the society. BUT — who is

going to create such a universal “ticket”? In a “free market”, it is hardly

acceptable to allocate this responsibility to one person by giving them the

opportunity to charge a fee for creating this “ticket”, and include a profit margin

as well. Whatever costs involved in creating such a universal “ticket”, logically,

should be shared equally by everyone in the society. The profit incentive doesn’t

come into this “business” because it is undertaken as a service to the whole society.

To me, setting up some basic rules for the way a “free market” will operate, and

the creation of a common “ticket” system, is an automatic and essential first step

of a management function.

Part of the management function is the responsibility to ensure the rules are

followed and, in our totally honest society, this would not present a problem as no

infringement would occur and no action would be necessary.

Of course, this raises the question of how the rules will be set and how the decision

would be made on the form of the universal “ticket”. It is hard to conceive of these

things happening by a process of osmosis, or something akin to the ludicrous

theory of Constitutional evolution. These sorts of decisions require a degree of

concerted organisational effort by at least a portion of the community. This is very

basic, and to me, represents the foundation for the argument of why leadership

must evolve if a society is to coalesce into some form of workable and organised

group.

The crucial challenge for every society is the way they are going to control this

leadership. Can they ensure it is there for their benefit, or will they let it

degenerate into a force for its own benefit?

Every society, “free market” or otherwise, has the choice to apply some measure

of control through rules and law, or they can abdicate any responsibility by

conceding to the superiority of force available to their leadership.

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In a “free market” world there are things that the market cannot, or will not,

supply. For one example, the coastline of a nation is a highly valuable asset that

has a huge impact on every aspect of a nation’s existence. The occasion of cyclones

and oil spills is evidence enough for people to understand that it is for the common

good — good for business and good for the economy — that coastlines are

properly maintained. As an entity, a coastline is not something for which the

“market” is prepared, or able to, take responsibility. The “free market” can

certainly exploit those sections of the coastline that offer the opportunity for

making a profit, but they cannot, or will not, make a long term assessment of the

impact of that exploitation on the associated environment. Most of the costs for

maintaining the asset of a nation’s coastline could, rationally be argued as a cost

on the society as a whole.

One of the earliest arguments for establishing a Government was to defend the

society from outside aggression. Some “free market” advocates claim that the

defense of a society can best be delivered by private enterprise. Of course, that

defense would be on the basis of user pays and could only operate if it makes a

suitable profit. Were an aggressor willing to offer a more profitable contract to the

defense supplier, the society could be handed over on a platter without the need of

forcing a destructive war. This could be rationalised as an outstanding benefit

attributable to the “free market” system — the elimination of war!

CHAPTER 16

MONEY AS A COMMODITY

When money is treated as a commodity, it destroys the relationship between

production and consumption. In today’s world, the foreign exchange markets

represent a huge international gambling casino catering largely to speculators.

These markets may have started out for a legitimate purpose, to hedge trade

transactions against the rise and fall in exchange rates, but they only came into

existence because currencies were treated as commodities.

Central Banks and Governments manipulate their currencies, thus, all the world’s

money systems end up in the arena where the punters place their bets on which

will win and which will lose. According to the Bank for International Settlements,

in April 2010 the daily turnover for currency trading was USD$3.98 trillion, with

around 7.6% of that volume involving the Aussie dollar. It's hard to know the

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exact numbers, but only a fraction of daily trade involves transactions for goods

and services. Most currency trading is traders and speculators buying and selling

currencies based on their view of the market.

The fact that none of the fiat monies has any intrinsic value has led to

governments allowing the excessive creation of “money” that is unrelated to the

productive capacity of their nations. This is a major factor in the inherent

instability of so many currencies. To make matters worse, the foreign exchange

markets have allowed the speculators to place each way bets which can serve to

artificially influence the comparison between currencies. One of the principle

functions for today’s banker is to become a dealer in money as a commodity, for

the purpose of making as much profit out of that commodity as possible.

The way a black market operates is a good illustration of what happens when an

object becomes a commodity. For example, food stamp are a form of money, but if

a person prefers to trade their allocation for something other than food, then one

person will acquire a food stamp which they may not need and the other person

will go without food. If the new owner of the food stamp doesn’t exchange it for

food and continues to trade it for other products, this will impact on the supply

chain between production and consumption. The more often the food stamp is

traded as a commodity, instead of being used for its original purpose, the wider

the gap becomes between production and consumption. This is exactly what is

happening when money is traded as a commodity and it becomes impossible to

establish a relationship between production and consumption.

In an example used by C. H. Douglas, if for whatever reason, a shortage of train

tickets is created, only a limited number of people would be allowed to use the

service. This means the train would run below capacity even though there may be

a demand for its full utilisation. That is another example of what happens when

money, as a ticket system, is unrelated to the consumption demand.

The primary essential of a currency is to act a medium of exchange in providing

for the production and distribution of goods and services to meet the consumption

demand by the community.

As stated above, the reality is that money has no other purpose except as a tool of

exchange. The idea that a physical action cannot be carried out unless there is

sufficient money available is, in fact, a ridiculous deception fostered by the

Banking industry.

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CHAPTER 17

THE GOVERNMENT-SANCTIONED PONZI SCHEME

What came to be known as fractional reserve lending dates back several centuries,

when trade was conducted primarily in coins made from a metal such as bronze,

and eventually, gold and silver. How it evolved was described by the Chicago

Federal Reserve in a revealing booklet called, ‘Modern Money Mechanics’: ‘It

started with goldsmiths. As early bankers, they initially provided safekeeping services,

making a profit from vault storage fees for gold and coins deposited with them.

People would redeem their ‘deposit receipts’ whenever they needed gold or coins to

purchase something, and physically take the gold or coins to the seller who, in turn,

would deposit them for safekeeping, often with the same ‘banker’. Everyone soon

found that it was a lot easier simply to use the deposit receipts directly as a means of

payment. These receipts, which became known as notes, were acceptable as money

since whoever held them could go to the banker and exchange them for metallic

money.

Then, bankers discovered that they could make loans merely by giving their promises

to pay, or bank notes, to borrowers. In this way, banks began to create money. More

notes could be issued than the gold and coin on hand because only a portion of the

notes outstanding would be presented for payment at any one time. Enough metallic

money had to be kept on hand, of course, to redeem whatever volume of notes was

presented for payment.

Transaction deposits are the modern counterpart of bank notes. It was a small step

from printing notes to making book entries crediting deposits of borrowers, which the

borrowers in turn could ‘spend’ by writing checks, thereby ‘printing’ their own

money.’

As Elgin Groseclose, Director of the Institute for International Monetary

Research, wryly observed in 1934: ‘A warehouseman, taking goods deposited with

him and devoting them to his own profit, either by use or by loan to another, is guilty

of a tort, a conversion of goods for which he is liable in civil, if not in criminal, law.

By a casuistry which is now elevated into an economic principle, but which has no

defenders outside the realm of banking, a warehouseman who deals in money is

subject to a diviner law: the banker is free to use for his private interest and profit the

money left in trust. . . . He may even go further. He may create fictitious deposits on

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his books, which shall rank equally and rateably with actual deposits in any division

of assets in case of liquidation’.

In the evolution of modern-day banking, the perpetrators of this scheme come to

acquire government protection for what should have landed them in jail. This

didn’t happen for the reason stated by Mayer Amschel Bauer Rothschild: 'The few

who understand the system, will either be so interested from its profits or so

dependent on its favours, that there will be no opposition from that class.'

The ‘bankers’ devised the system where they could trade paper receipts rather

than physical things of value. This was the origin of the “fractional reserve”

system of lending. Initially, the ‘banker’ had to have a mere fraction of some form

of asset to back up the ‘receipts’, and the most convenient and traditional asset

was usually gold. As a form of guarantee, the first lot of ‘receipts’ the ‘bankers’

issued carried the promise that each receipt could be exchanged for the equivalent

amount of gold. The scheme worked as long as only a few people came for their

gold at one time. Eventually, these ‘receipts’ evolved into bank notes, first issued

by the individual bankers and, eventually, coordinated into a single currency

under the auspices of the national Government. At first, the Governments took

responsibility for the conversion guarantee of paper money into gold. However, as

Governments allowed the banks to vastly increase the ‘money’ supply through the

issuing of credit and book entries, it became obvious there was not enough gold to

support the ‘money’ in circulation. The solution to this dilemma was to renege on

the guarantee and divorce the paper money from any supporting physical asset.

This is the current state of affairs with every major currency in the world today.

However, people tend to use a degree of common sense when it comes to their

everyday lives and, back in 1907, when the conversion guarantee applied to the US

banknote, they became suspicious and many people made a demand for their gold.

This created a particularly bad run on the banks and left the bankers with no

choice but to close their doors. As the 1907 panic was just one of a series of boom

and bust cycles over the previous years, the American Congress were pressured

into the idea that a privately owned central banking system would stop future

panics. Although there was strong opposition to allow such a private entity to issue

the nation’s money, the Federal Reserve Act was passed in1913. This Act created a

“bankers’ bank” that was controlled by Wall Street financiers. A co-author of the

Act, Robert Owens, later testified before Congress that the banking industry had

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conspired to create a series of financial panics aimed at getting the people to

demand “reforms” which, ultimately, served the interests of the financiers.

In essence, what this did was to allow the United States Treasury to write IOUs in

the form of interest bearing U.S. treasury bonds, which it then sold to the

privately owned Federal Reserve Bank. In exchange, the Federal Reserve would

write a cheque and credit this to the US Government’s account while the

Government assumed the responsibility to pay the interest. In reality, this is

simply an accounting transaction creating interest bearing ‘money’ out of nothing.

Today, this transaction is done electronically via a computer.

In spite of all the assurances, the greatest bank run in history occurred only

twenty years later, in 1933. That was the year when President Franklin Delano

Roosevelt signed Executive Order 6102, making it illegal for US citizens to hold

gold bullion or to trade gold as money and savings. Up until 1914, the $20 bill was

essentially a warehouse receipt for a one-ounce gold coin and this was actually

written in the note. That written promise was removed from all subsequent $20

notes printed by the newly established Federal Reserve Bank. The bearer of these

new notes could still exchange them for gold, but after Executive Order 6102, that

no longer applied. However, the Government did compensate people for their gold

by giving them paper money to the value of $20.67 for each ounce confiscated. One

year later, Roosevelt had Congress pass the Gold Reserve Act for the purpose of

revaluing gold to $35 an oz. This allowed the Treasury to raise an additional

$3billion in an effort to stimulate the struggling economy.

In further attempts to counter the Great Depression of 1933, the Federal Reserve

officials decided to flood the banking system with “liquidity” through the creation

of a huge supply of ‘money’ out of thin air. The assumption was that the banks

would use this ‘money’ to kick start the economy, but instead, the Banks increased

interest rates and foreclosed on properties allowing them to be snapped up at fire

sale prices.

Increasing the ‘liquidity’ of the major banks is exactly the same approach used for

the financial crisis that arose in 2008. Much of the current financial problems have

occurred as a result of low interest finance and the massive international

speculation in toxic financial product, such as, ‘derivatives’ and CDO’s.

Governments around the world have perpetuated the policy that some banks are

‘too big to fail’, and have assumed the responsibility to provide bailout money,

ultimately, at the expense of their taxpayers.

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The concept that some banks were ‘too big to fail’ arose in the 1980s, when the

Savings and Loans collapsed in the US and Citibank lost 50 percent of its share

price. Negotiations behind closed doors endorsed the “too big to fail” concept and

it became accepted Government policy. Bank risk was effectively nationalized

which amounted to privatising the profits and socialising the debts, thereby,

guaranteeing a win –win situation for the Banks, regardless of risk-taking or bad

management.

CHAPTER 18

DOES GOVERNMENT HAVE A SOLUTION?

We have already discussed above what “we”, the people, mean by “government”.

Good governments are supposed to be there to look after the welfare of their

constituents through the protection of individual rights as a primary purpose.

Other responsibilities should be to ensure a free and open society where people

can use their ability and enterprise to pursue a productive life without the fear of

coercion. In other words, Governments are created to serve a public purpose.

Unfortunately, politics interferes with these proper roles, as all Governments

become political beasts, comprised largely of people with questionable competence

in any field outside of the political game. Almost exclusively, these people have

little in the way of achievement to their record, but they do have a strong lust for

the ‘power’ to tell other people how to run their lives.

The party system of every form of Government, even in a so called, “democracy”,

will not tolerate any semblance of independence from the party line. It will only

support people who are prepared to, unquestionably, follow party policy as

dictated by the hierarchy.

The few competent people, who try to infiltrate the system in the hope of making a

change, are soon overwhelmed by the host of party adherents whose primary

qualification is their propensity for obfuscation and their general lack of

experience with any form of productive free enterprise. Professional politicians

have often been proven the most dangerous species of mankind, as their real

motivation is the lust for ‘power’, which they garner under a veil of deception,

deliberate or otherwise, by espousing the aim of looking after people.

Robert McNamara, the architect of the Vietnam War, is attributed with at least

one worthwhile observation, “No man should stay in one job for more than seven

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years”. There is some merit in making that a compulsory requirement for every

politician.

Because the economic woes of the world ultimately arrive on the doorstep of

governments, some people have raised the question of whether or not a

Government is necessary, or desirable. That issue has been discussed above.

However, the question of whether Government has a solution, or more accurately,

can provide the means for creating a harmonious and equitable society, is very

much unresolved. So far, history has not provided any proof that Governments

can attain that goal, probably because; it is never their goal in the first place.

All Governments are ‘power’ structures whose primary purpose is control of

people. Political leadership cannot exist if there are no people to lead, and if the

people do not do as the leader says then, either the leadership is ineffective, or the

people must be made to obey. Human nature dictates that there will always be

disagreement as to the best course of action in relation to any given situation.

Hence, no Government will ever be able to come up with the ‘right’ solution to suit

everyone. The old chestnut about ‘pleasing all the people all the time’ is an

impossible task so; every Government is always left with ‘pleasing some of the

people some of the time’. The fundamental problem with this option is that the

decisions which please some of the people tend to affect all the people and thereby

hangs the greatest hindrance to a harmonious and equitable society. Maybe, part

of the answer lies in creating a truly Australian Bank owned by all the people and

operated in the manner described below.

A SOLUTION FOR BANKING

I don’t think there is any valid dispute that a growing economy, and population,

requires an expanding supply of ‘money’ tickets. As stated above, this increasing

supply of money has to be related to the productive capacity of the goods and

services required by the expanding society. If this applies, then the new ‘money’

will be backed by physical assets, and thereby, constitute the creation of a ‘sound’

money supply. The contention that ‘sound’ money can only be created if it is

related to gold or silver, is a spurious argument that only applies if ‘money’ is

treated as a commodity rather than a ‘ticket’ system. In fact, it is quite ridiculous

to say that a society can only create a money supply if it has a store of gold

available to define how many ‘tickets’ can be created.

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A Government is in the position to establish a genuine, honest and practical

banking system based on the creation of ‘sound’ money as defined above. The

primary objective of this system must be to serve the needs of the public in

providing effective banking services.

While the fractional reserve system is essentially a ‘ponzi’ scheme, if modified and

properly controlled, it can be made to serve for the benefit of the society.

Essentially, we need to reverse the current procedure. Instead of allowing the

private banks to create ‘new’ money as they currently do, by advancing interest

bearing credit out of thin air, the Government, on behalf of the people, should

create this ‘new money’ and sell it to the private banks. Obviously, the creation of

this ‘new money’ would be a simple bookkeeping, or computer spreadsheet

activity, exactly as it currently applies. The private banks would be set up in the

same manner as presently in place, by obtaining capital from investors through

the issuing of shares, debentures or bonds. As legitimate registered businesses,

they would be eligible to apply for, and purchase, ‘new money’ from the

government at a low rate of interest. The amount of ‘new money’ they request

would be set as a ratio of their capital, plus money they hold in deposit from their

customers. If the ratio is set at the current rate of 12.5:1, as used by the Bank of

International Settlements, this would provide the banks with an adequate level of

funds to use in supplying credit to their customers. As the economy grows so

would the customer’s deposits, thus allowing the banks to apply for additional

‘new money’ to support the continued growth. The necessary controlling

regulations would be related to the nation’s productivity and consumption factors,

which the Government would monitor as the primary determination for the

creation of ‘new money’. A loan is merely a legal agreement, and in the case of

advancing credit, it is simply the ‘monetisation’ of future effort. The borrower

promises to repay the loan at a later date from the fruits emanating from the

advance. In this respect, all credit is really public property because only people are

capable of producing products and services that will create the ability to repay the

advance. The creation of credit should never have been handed over to the private

banks in the carte blanc manner which applies today.

Under the current system, Governments borrow money from private sources and

pay interest on the bonds they issue. This revised system would operate through

modifying the role of the Reserve Bank of Australia. Specifically, their role, as

mentioned above, would be to monitor the nation’s productivity factors and

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handle the sale of ‘new money’ on behalf of the people. Provided the Government

is constitutionally constrained from creating ‘new money’ for themselves, a

controlled fractional reserve ‘ponzi’ system is a way of increasing the money

supply in keeping with the needs of a growing economy. Effective constraints

would be by way of constitutional restrictions on the level of borrowing allowed by

the Government and relating the increase in money supply to calculated and

properly defined productivity measures. This would effectively control inflation as

the volume of money would keep pace with the volume of goods and services

available. A Debit Tax System could apply to financial transactions, particularly

those related to gambling and non-productive investment. This would be coupled

to the income from the sale of ‘new money’ and thus provide funding for a

responsible government, and very likely, eliminate the need for any other taxes. If

the re-introduction of a proper “People’s” Bank is added to the mix, based on the

concept and operation of the original Commonwealth Bank of Australia, it would

take Australia to the forefront of logical, rational and effective financial

management. Initially, public finance would be reserved for the publicly owned

Commonwealth Bank which could provide the necessary investment funds, at cost

to the Government and municipal organisations, in accordance with

independently assessed cost/benefit analysis for any proposed projects. If this

financing is coupled to the requirement of managed budgets and Constitutional

constraints, as mentioned above, and taking into account currently outstanding

loan commitments, the public sector would avoid the subsequent unnecessary

interest charges relating to bond issues and borrowing from the private sector.

This would have a major impact on the cost of Government and municipal

services.

Under this arrangement, the private banks could remain a supplier of credit for

the private sector, and with healthy competition; the banking industry would be

sufficiently controlled in regards to the fees and interest rates the Banks could

charge. The threat of expanding the Commonwealth Bank’s role into the private

sector would have a sobering effect on excessive bank charges and high interest

rates.

To ensure the private banks operated in a prudent manner and for the benefit of

the nation, there would be a clear understanding that the Government would not

be a lender of last resort should a bank get into financial difficulties. Private

Banks would take out a level of insurance cover to protect their customer’s

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deposits as part of their standard business practice. If a bank is properly

managed, this should not present a problem.

While the proper definition of financial Credit is a ‘monetisation’ of future effort,

the advancing of credit will always carry an element of risk for the lender. This

can be mitigated to a degree by due diligence analysis and/or a requirement of the

borrower to supply some collateral.

Theoretically, there would be no restrictions on how a private bank used their

capital funds, other than those imposed by their shareholders. Any time private

banks request additional ‘new money’ they would need to present an audited

statement of their accounts showing their current assets and liabilities along with

proof of their reserve holdings. Banks would not be permitted to use the ‘new

money’ for ‘investing’ in their own name, unless it were based on exactly the same

conditions of due diligence and collateral as applied to their customers. In other

words, banks could use the ‘new money’ to expand their business by building

branches and appropriate income producing facilities, but not for speculating in

unproductive financial products which are at the root of much of the current

financial malaise.

While the banks would have no direct control over the way their client’s use any

credit given them, that risk would, in part, be covered by the collateral held and

the reliability of their customers. As the banks are fully aware they are entirely

responsible for any financial risk involved, and cannot expect any bailout or

rescue package from the Government, this should be sufficient for their

shareholders to demand prudent management.

Creating a brake to the unlimited creation of ‘new money’ which, to date, has

been unrelated to any control mechanism apart from the futile and ineffective

manipulation of interest rates by the Reserve Bank, would severely curtail the

extent of gambling in foreign, and local, financial markets.

From a practical sense, Australia’s financial system would be based on ‘sound’

currency and a completely adequate supply of ‘money tickets’ in keeping with the

growing economy. This would radically reduce the need for foreign investment

and divorce the nation from much of the artificial boom and bust cycles associated

with international finance.

Speculation in hedge funds and overseas financial markets would become a policy

issue for the private banks, subject to shareholder approval and acceptance of the

risks involved.

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CHAPTER 19

THE DEBIT TAX SYSTEM AND A NATIONAL PEOPLE’S BANK

According to Robert Heinlein in his book, “The Moon Is a Harsh Mistress”, ‘The

power to tax, once conceded, has no limits; it contains until it destroys’.

Whilst that observation has been found to be very true; the question of how a

Government is funded has been resolved historically by taxation and/or plunder.

A monetary sovereign nation with their own fiat currency system does not, in fact,

need to impose a tax system at all, but taxation has always been a most effective

mechanism for controlling the people. This “power to tax” is the reason

Government bonds, and the resultant bond market industry, is considered the

safest form of investment. Historically, Governments have issued bonds as a

means of borrowing money from the private sector, especially under the “gold

standard” system when the Government didn’t have enough gold to support their

ongoing wars. Inevitably, this has led to the current situation where governments

around the world find themselves in perpetual and increasing debt, even in spite of

the fact the “gold standard” system was officially abandoned in 1971. Cultural

traditions decree that no one is entitled to something for nothing, hence this is the

justification for the argument that everyone has a responsibility for sharing the

cost of Government. This argument reinforces the continual, and unnecessary,

imposition of a tax regime; apart from the controlling powers it gives the

Government. There are options to the way a Government is financed and the

selling of credit access to the private banks is one way. However, there must

always be restrictions on the way a government is funded and the way it spends

that funding. Because the taxation psyche is so inbred into the minds of so many

people, it behoves the authorities, if they are determined to impose a tax regime on

their constituents, to find the best tax systems that are demonstrably fair and

equitable to the taxpayers. The Debit Tax system fits the requirement for a much

simpler and effective tax system. If it is coupled to the modification of the Reserve

Bank’s function, as proposed in the principle above, it would greatly enhance a

nation’s economy and represent a major step in stabilising the shaky foundations

of the present financial system. If the Government should also consider re-

establishing a true Australian Bank along the lines of the original Commonwealth

Bank of Australia, it would provide the public financial credit that rightfully

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belongs to the people. The Bank’s operations would also act as a benchmark for

the operations of the private banks.

With regards to the Debit tax system, it is based on a minimal percentage charge

on all financial transactions and has many advantages apart from doing away with

all other forms of taxation:-

1. Small businesses would not be hindered by the time consuming,

costly and complicated system currently in place. Small business will

be encouraged to grow and employ more people.

2. Big Multi-National Companies will be required to pay their fair

share of tax which current legislation allows them to avoid.

3. No tax cheating or tax avoidance necessary or possible.

4. It would create a genuine and effective user pays system.

5. It will also provide a continuous revenue flow to the National

Treasury

6. The application of off balance sheet accounting would be prohibited.

7. Low income people would pay a minimal amount of tax, and there

could even be a threshold before the tax applies. Essentially, it is a

user pays system based on the level of financial transactions related

to an individual or a Corporation.

In 1991 – 1992, the Reserve Bank of Australia issued a report stating that the

ordinary working day business of the Banking industry involved non cash

withdrawals amounting to $A120 BILLION.

When the Debit Tax system was initially proposed, they suggested a rate of 0.33%

on every financial transaction which would, at that time, provide the Government

with the daily cashflow of $A396 million and an annual revenue of $99 BILLION.

Obviously, the banking turnover has increased enormously since 1991-92 and the

latest RBA figures, as of April/March 2009, show it is in the order of $258 billion a

day. This takes into account all withdrawals, non cash and cash, including those

made from ATM's and EFTPOS and withdrawals made on week-ends and public

holidays.

A Debit Tax of 0.33% on DAILY withdrawals of $258 BILLION equals $774

MILLION IN FEDERAL REVENUE per ordinary working day.

This equals - $204 BILLION IN FEDERAL REVENUE YEARLY

This is not close to the 2009-10 budget estimates of $338.2 Billion.

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If the debit tax rate were lifted to 0.5%, it would result in revenue of $340 billion.

In a fiat currency system used by a monetary sovereign nation, there is absolutely

no need for any Government to make a surplus because; any surplus represents a

drain on the savings of the private sector. A properly controlled budget would

include the payment of interest as it becomes due and the gradual writing down of

accumulated debts. Governments have no need to make profits out of their tax

payers – Governments are there to provide the necessary essential services

required by the society. However, the urge to make exorbitant promises to get

elected does lead to wasteful expenditure.

For this reason, it is absolutely critical that the rate applicable to any tax regime

chosen by a Government, whether it is a Debit Tax Rate, or some other system,

must come under very rigidly controlled guidelines to prevent any Government

from arbitrarily increasing the rate. Because even minor changes can result in

significant windfalls for the Government, as shown in the example above, the most

appropriate control would be to specify the rate in a Constitution. This would

force any Government to go to referendum should they propose a change. It would

also take control out of politics and give both sides of the argument ample

opportunity to justify their case.

The other factor that needs to be taken into account when a Debit Tax system is

introduced, and thus eliminating all other forms of taxation, is the very significant

impact it would have on prices, on all types of costs and the resultant increased

purchasing power for the consumers. These factors would result in a dramatic

change to the entire economy and the inevitable reduction in the level of budget

expenditure.

The introduction of a properly controlled Debit Tax system has enormous

advantages for Australia and is an issue that needs urgent consideration, and

urgent implementation, if Australia is going to weather the storm of this

international financial crisis. Of course, to couple a Debit Tax System with the re-

introduction of a proper “People’s” Bank, based on the concept and operation of

the original Commonwealth Bank of Australia, would be a master stroke in

Australia’s logical, rational and effective financial management.

Is that a realistic and practical political goal? Probably unlikely, under the current

two party political system inflicted on Australia at the moment. We need a few

original and courageous politicians in the ilk of King O’Malley and Andrew

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Fisher, who are prepared to put the interests of the Australian people above those

of politics and the political party. Sadly, such politicians are few and far between.

Following on with the issue of Taxation, and apart from the question whether we

need it or not, there is common agreement that the current system is far too

complex and desperately needs to be simplified. Although I believe the Debit Tax

system represents the simplest and most effective system. Mr. John Mc Roberts

has proposed a 2% system as another alternative and this has justifiable merit.

THE 2% TAX SYSTEMA PAPER BASED ON THE TAX PROPOSALS ORIGINALLY

ENDORSED BY JOHN Mc ROBERTSby

Graham L. Paterson

September 1998.

Contrary to the unfounded and biased remarks of certain people, the 2% Tax proposal is

a completely valid and logical proposition. There is little argument that the present Tax

system is both unfair and unjust and does nothing to reward production and enterprise.

If we can simplify the system with a uniform, understandable, non-punitive, non-

selective, non-discriminatory and practical Tax System, it would represent an

enormous benefit for every Australian.

This is the basic logic that must underpin any approach to proper Tax Reform -

simplify the system and give the people, perhaps, for the first time, a chance to

understand the Rules.

A 2% Tax System is a major reform which will encourage honesty and reward it at the

same time. It will provide the basis for ensuring that the real cost of Government

always remains visible.

The ripple effect of a 2% Tax System would be like a tidal wave throughout the

Community by stimulating investment and greatly increasing economic activity. For the

first time the people would have the opportunity to manage the proceeds of their efforts

as they see fit. The Government could no longer arrogantly tell people that it knows

better how to spend their money than they do.

Imagine for a moment what would happen to our cost of living if Taxes were

reduced to 2%.

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This reform would impact through every level of Society, it would flow through every

level of Government, every phase of production would benefit and the cost of every

single thing produced in Australia would drop dramatically.

It would virtually eliminate the current necessity for Tax avoidance schemes. As a

corollary, it would greatly reduce the cost of collecting Taxes and policing the

ludicrous patchwork of Taxes engendered by the present system.

A 2% Tax system would be seen as fair and reasonably by the vast majority of

people.

If it is supported by relatively high penalties for evasion, very few normally honest

people would consider it worthwhile to buck the system. Under the current Tax system,

the returns for minimising Taxes often outweigh the time and effort that would

otherwise be spent productively. Company Tax, like all other taxes, would be set at 2%,

but related to gross turnover. High turnover low margin companies would benefit from

the significantly reduced costs over the full range of expenditure.

The net effect would be a reduction in prices, expansion of business, more

employment opportunities and higher dividends.

A 2% Tax System is straight forward, fair and easily understood, compared to any other

Tax System ever used in this country.

We all have a responsibility to share the cost of Government. If this is done in a fair and

equitable way, it will be willingly endorsed by the people of Australia. I doubt there is

anybody who could argue that 2% is unfair or excessive.

The principle impact of a 2% Tax on every person in Australia will be an increase

in the purchasing power of every dollar, it will lower unemployment, it will

simplify the rules and it will provide sufficient funds for an accountable

Government to meet the obligations to which it is entrusted.

Such a tax does not penalise production, it doesn’t discourage enterprise, but it does

impact on market decisions by providing a stable foundation for assessing potential

returns.

The basis idea behind the 2% Tax concept applies to any activity involving a monetary

transaction related to a change of ownership. In a sense, it is a charge on the use of the

nation’s currency which, essentially, is an economic tool to facilitate the efficient

means of trade. While a clear distinction exists between the creation of a product and its

ownership, both are part of the production chain. In the marketplace, the buyer becomes

the new owner once he has paid the previous owner a mutually agreed amount of

currency in accordance with the value of the product as assessed by each party. If this

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concept is carried through to each stage of the production process, where the seller pays

their 2% on the amount of currency they receive, we have a simple, practical system

that is fair to each party involved in the process. The employee sells his labour to the

employer and pays the 2% charge on the money he receives; the suppliers of raw

materials pay their 2%, as do the tool makers, the people who build the factories and

the people who supply the power and ancillary services to support the production chain.

Once the product is finished and the ultimate owner places it on the market for sale, he

is then responsible for paying the same 2% charge in relation to the income received.

The price placed on the finished product is entirely up to the owner. After calculating

all the contributing production costs, assessing the risks involved, the owner adds

whatever profit margin he estimates the market will accept.

Risk is an inherent part of any undertaking, but unless a society is prepared to allow and

encourage sensible risk taking, it will stagnate and become vulnerable to outside

impositions, both man made and natural.

In a sense, we are all traders in our own peculiar way, employees trade their skills and

labour in exchange for a wage which they, in turn, trade the wage for things they need

or desire. But trade can only exist if there are people willing and able to be producers of

products. This brings us back to the basic purpose of Government which should always

be the guaranteeing of individual freedom and providing a climate of fair play for non-

coercive, healthy marketplaces. A healthy marketplace is the precursor to a healthy

nation of people who believe and practice self help which, ultimately, provides the

capacity to help each other, and thus, indirectly, the public interest.

By supporting domestic industry through our physical effort or capital, each of us

contributes to the greater welfare of our society even though our principle drive is self

interest and we have no conscious intention of promoting any social benefit.

In that sense, Adam Smith was correct in saying there is “an invisible hand” at work in

the marketplace.

Because this idea of a 2% tax represents a radical transformation from the existing tax

regime, it would have to be introduced progressively, and in coordination with a public

education program. A transitional period would be needed to phase in the necessary

changes to both Federal and State taxes. It is estimated this could be accomplished over

a 3 year period.

CHAPTER 20

STATE OWNED BANKING

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A state-owned bank has enormous advantages over private banking institutions

because, States own, on behalf of the people, huge amounts of capital (cash,

investments, buildings, land, parks and other infrastructure), and they can think

farther ahead than the quarterly profit statement. In theory, this allows them to

make long-term decisions, although in practice, the ‘long term’ seldom extends

beyond the next election. In comparison to the private sector, the States asset base

is not marred by oversized salaries and bonuses, and the only ‘shareholders’ they

have are the voters they need entice with promises at the next election. If there are

prudent regulations in place, the States would not be allowed to marr their books

with bad derivative bets, unmarketable collateralized debt obligations or avoid

mark-to-market accounting obligations.

The significant constitutional point in respect to State owned banks in Australia is

their specific inclusion in the present Constitution. Part V, Section 51(xiii)

provides for State banking to be free of Federal Government interference as long

as the bank operates within the State borders. Section 51 reads as follows, “The

Parliament shall, subject to this Constitution, have power to make laws for the peace,

order, and good government of the Commonwealth with respect to :- 51(xiii)

Banking, other than State banking; also State banking extending beyond the limits of

the State concerned, the incorporation of banks and the issue of paper money.

Quick and Garran, in their monumental “Annotated Commentaries on the

Australian Constitution” did not specifically address the issue of State Banks, but

did note that only certain ‘powers’ of the States were transferred to the Federal

Government and the States retained all ‘powers’ not so delegated.

As convincing proof of the enormous value and benefits that are achieved from

state owned banking, there is no better example than the Bank of North Dakota in

the USA. Currently, in the United States, North Dakota is the only state in the

union to own its own bank. The Bank of North Dakota (BND) was established by

the state legislature in 1919 specifically to free farmers and small businessmen

from the clutches of out-of-state bankers and railroad men. The original

Commonwealth Bank of Australia was established in 1911 and led the way in

proving the effectiveness of this concept. The organisers of the BND originally

conceived of the bank as a credit union-like institution that would provide an

alternative to predatory lenders, but conservative interests later took control and

suppressed these commercial lending functions.

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Today, the BND acts as a central bank with similar functions to those of a branch

of the US Federal Reserve, but differs from the Federal Reserve in significant

ways. Although the BND operates mainly as a “bankers’ bank,” the other notable

publicly-owned bank, the original Commonwealth Bank of Australia, successfully

engaged in direct commercial lending as well. This was a proven a win-win

situation for both the borrowers and the government. The public bank model

offers a genuine ability for refinancing the state’s debts and funding

infrastructure at the true cost of creating ‘money’.

In the US, the stock of the Federal Reserve Bank and branches is 100% privately

owned by banks. The BND is 100% owned by the State, as was the original

Commonwealth Bank of Australia, and both were chartered to operate in the

interest of the public. The stated mission of the BND is to deliver sound financial

services that promote agriculture, commerce and industry in their respective

regions.

Although the BND is operated in the public interest, it avoids rivalry with private

banks by partnering with them. Most lending is originated by a local bank. The

BND then comes in to participate in the loan, share risk, buy down the interest

rate and buy up loans, thereby freeing up banks to lend more. One of the BND’s

functions is to provide a secondary market for real estate loans, which it buys

from local banks. Its residential loan portfolio is now $500 billion to $600 billion.

This function has helped the state avoid the credit crisis that afflicted Wall Street

in late 2007. It also minimised the foreclosure rate, compared to the other States in

the US, when the secondary market for loans collapsed. Other services the Bank

provides include guarantees for entrepreneurial startups and student loans, the

purchase of municipal bonds from public institutions, and a well-funded disaster

loan program.

When the state of North Dakota failed to meet its state budget a few years ago, the

BND met the shortfall. In the last decade, the BND has returned a third of a

billion dollars to the state’s general fund and thereby offsetting taxes.

By law, the state and all its agencies must deposit their funds in the bank, which

pays a competitive interest rate to the State Treasurer. The bank also accepts

funds from other depositors. These copious deposits can then be used to plow

money back into the state in the form of loans.

These are the very things that are currently needed in Australia and should be

part and parcel of both the Federal and State Government’s responsibilities. The

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Constitution confirms Australia as a monetary sovereign nation and gives the

Federal Government authority under subsection 51(xii) to make laws regarding

“currency, coin and legal tender”, which if coordinated with State banking, would

absolve a lot of the need for States to borrow fund from private sources.

CHAPTER 21

A NEW VISION FOR A NEW AGE

To quote Henry C K Liu, from Asia Times Online, “The real wealth of nations are

people…without people there is no economy”

While this is true as far as it goes, there needs to be a recognition of who owns the

nation’s wealth. A nation can have an economy and be wealthy under a

dictatorship, but in that case, the wealth is owned by the authorities in charge.

In a democracy, where people have a certain amount of freedom to make choices,

the wealth of the nation can reside in their hands, depending on the type of

economic system they accept.

This is where the Constitution of a nation must play a crucial role in defining the

type of economic and political system that best serves the people and the society.

The No. 1 reason politicians have little real concern about making decisions on

spending other people’s money is because; they don't have to suffer the

consequences. Even if they get kicked out of office they go out on the gravy train

so, financially, it makes no difference to them if their decisions are bad. Unless

people have a stake in the outcome of an event, they are less concerned about

choosing wisely or having to take responsibility for the consequences of ill-

conceived projects.

This is especially so with politicians who make decisions for political reasons

rather than a logical assessment of the facts. People need to ask themselves

whether there is a way to make politicians, and their advisors, more accountable

for their decisions.

One way we might accomplish this goal is through our Constitution. There are

four principle areas that need to be addressed that would go a long way in

alleviating many present day problems.

Whether we like it or not, our society runs on ‘money’, and if you don’t

have it, it becomes difficult to survive. Because economic factors dominate

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the way we live, the first step is to ensure everyone has a proper

understanding of the financial parameters that control the system. What

this means is that the Government has the responsibility to ensure the

financial system of the nation functions in the best interests of the people,

and not for the exclusive benefit of the financial industry. As mentioned

above, our present Constitution, as bad as it is, does authorise the

Government, – as per section 51- “to make laws for the peace, order and

good government of the Commonwealth with respect to”, amongst other

things, “currency, coinage and legal tender”, and it also includes, “the issue

of paper money”. In a monetary sovereign nation, such as Australia, our

fiat currency is actually backed by the physical assets of the

Commonwealth Government. This too is recognised in Section 51(iv),

which states, “Borrowing money on the public credit of the Commonwealth”.

However, the Constitution does not specify any parameters in respect to

controlling and quantifying the amount of currency the Government, and

the private sector, is allowed to create. As explained above, provided there

is a direct link to the productive/consumption capacity of the nation that

would be the basis of the necessary controls. The principle role of “money”

is to serve as a convenient tool for the exchange of goods – in other words, it

is a ‘ticket system’. Money facilitates trading in an infinite variety of ways

and provides people with the flexibility that is impossible with the barter

system. Increasing production is the definition of a growing economy and

that increase demands an expanding ‘money’ supply to allow for its

consumption. If the production is not going to be consumed, the end result

is a waste of both resources and energy. A ‘sound’ money supply really has

nothing to do with gold or silver, or any other physical metal, as it is

directly related to the physical assets associated with the production of

goods and services. Although gold and silver have played a historical role

in the issue of money, they did so because of their physical properties and

before the widespread adoption of the, more convenient, ‘paper’ money.

Initially, ‘paper’ money was convertible to designated ‘hard’ currency,

which traditionally, would have been gold and silver. With the development

of the fractional reserve system, the bankers found it very easy to create

‘paper’ money well in excess of the amount of gold or silver they had on

hand. It is this uncontrolled creation of “money” that is the fundamental

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flaw in the way the current financial system operates. The amount of gold

or silver available to a society is, actually, immaterial to the amount of

‘money tickets’ needed to cater for the production and consumption

requirements of any given society. It is quite ridiculous to say that a society

can only create a money supply if it has a store of gold. The productive

capacity of a society is what defines the quantity of money needed to ensure

consumption. The quantity of gold has nothing to do with the level of

production needed for a modern society. While the banking fraternity fully

endorse this argument, they do that on the basis of not wanting any

effective controls on the amount of money they can create. Too many

modern Governments have conceded to these demands of the bankers and

have allowed them free rein. If the process is reversed and the Government

becomes the source for creating ‘new money’, and that source is strictly

tied to the production capacity of the society, the whole scenario changes. A

growing economic activity does require an adequate source of capital

which, in the field of private enterprise, can be handled by the private

banking sector. Provided this sector observes prudent lending practices

and conforms to adequate reserve requirements, they should be able to

generate sufficient public confidence in their operations. What is needed

here is a very clear distinction between commercial banking and

investment banking. While defined limits could be placed on the operation

of commercial banking, particularly in respect to customer and project

credit worthiness, the marketing and speculatory practices of the

investment banking sector must be at the bank’s, and their customer’s,

own risk. Public finance should be reserved for the public banking sector,

which could provide the necessary investment funds, at cost to the

Government and municipal organisations, in accordance with

independently assessed cost/benefit analysis for any proposed projects or

services. If this financing is coupled to properly managed budgets, taking

into account loan repayments, the public sector would avoid the

commitment to unnecessary interest charges relating to bond issues and

borrowing from the private sector. The banking system currently enjoys

extensive Government protection because they are seen to provide an

essential public service. There is a need for these services and the places

where people can store their money, plus access certain types of debt

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products. Currently, Government protection is provided by way of

guaranteeing deposits, bailing out the banks when they are in trouble, and

granting privileged access to the Government bond issues. With proper

prudential regulations, and productivity related controls on the creation of

‘new money’, there would be no need for this type of protection. Since de-

regulation of the banking industry, it has become common practice for

banks to speculate in derivatives and other dubious financial products that

are flooding the market. Many deregulated banks have lost sight of any

public role and this provides a very strong argument to justify the

reintroduction of a genuine public banking option. The creation of the

original Commonwealth Bank of Australia, in 1912, proved highly

successful in demonstrating the benefits of a public banking service. Proper

examinations and legitimate audits would be part of the regulations

involving the operations of public banking besides specifying the services

they must provide. Public banking is totally supported by the assets of the

Government, and this creates a level of confidence divorced from market

speculation. Private Banks have fought hard to operate in a field of

minimum regulation and divorced from any restraints that inhibit their

ability to speculate for the purpose of maximising profits. In a free

enterprise economy, there is nothing intrinsically wrong with this, provided

it is done honestly and doesn’t involve fraudulent practices, insider trading,

or deliberate deception. However, if private banks wish to speculate in any

of the non-productive products created by their industry, they should do it

at their own risk and without Government support. They should take out

appropriate insurance with private insurance companies if they need to

protect their depositors. Such insurance companies, in turn, must comply

with adequate prudential and regulatory requirements. At present, banks

in this line of business are subsidised by their respective governments thus

benefiting directly from the public purse. This same proposition applies to

Hedge Funds whose initial primary purpose was for commercial protection

against price and exchange variations. Today, these funds have largely

become a form of speculation and the bulk of fund transactions are

motivated by speculative profit rather than protection.

The next step is to understand how the fiat currency system of a monetary

sovereign nation really works. Government finance in the macro economy

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cannot be compared to household finance in the micro economy. Private

and household spending can only occur through earning an income, using

savings, and/or borrowing, which means they must finance their spending

prior to the fact. Clearly, the private sector has budget choices and cannot

permanently sustain increasing debt. Government spending is exactly the

opposite because, a Government, as the issuer of the currency, is not

inherently revenue constrained and can simply spend without the necessity

of seeking funds in advance. That’s why it is completely irresponsible to

compare the micro budget of a household with the macroeconomic budget

of a government.

State Governments do not have monetary sovereignty, and therefore, are in

the micro economic category and need to operate their budgets on the same

principles as a household. However, each State has the right to set up their

own State Bank, and in effect, use the State government’s income as the

reserve for creating credit in exactly the same way as do the private banks.

Very few people inside the government, the economic profession, and

especially among the financial commentators, seem to have any

understanding of the distinction between the micro and macro economic

realities nor the tremendous benefits to be gained by each State having

their own State Bank.

In the same way a family provides for the future, all Government budgets

must include provision for servicing planned infrastructure projects,

allocating funds for committed obligations and having a contingency

account for emergency relief. Every sort of budget, whether it’s the State or

Commonwealth budget, does need to be related to a publicly announced

and approved 5 year plan. Such a plan would provide the nation with a

clear picture and direction they need to follow to achieve their future goals.

To date, Australian politics has never tried to deliver a road map for the

future, because the political culture seems incapable of thinking beyond the

next election. Most forward planning tends to be of an adhoc nature and is

seldom publicised as a comprehensive package, capable of garnering

popular public support.

If every budget is tailored to a clearly understood forward plan and

realistic growth projections, politicians would be curtailed in burdening

future generations with unserviceable debt.

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The third principle, if we are going to accept the proposition that a

government is essential, is to find a logical way to control the functioning of

this organisation. It seems a valid argument that everyone who has the

right to vote has a shared responsibility for the government they help put

in office. In consequence, that responsibility implies they should all share in

the burdens of government. In effect, the voters become stakeholders in the

government and this emphasises the need for people to have an awareness

of how important it is to know and understand ‘their’ Constitution. The

Constitution is the primary law for establishing what the Government, and

its instrumentalities, can and cannot do. This is why it is imperative that

the people should become involved in the formulating of any new

Constitution, if and when, we finally have the courage to properly divorce

our political ties to the British Parliament. The people’s assets and income

are part and parcel of their freedom. A man cannot have his liberty

without his property and the right to his earnings, and in every rational

sense; each person is their own best judge of how to use those assets and

abilities. One of the few good aspects of the present Australian Constitution

is Section 128. This requires a Referendum passed by a majority of the

voters AND a majority of the States, supposedly, for any changes to the

Constitution. As every politician will tell you, a successful referendum is

notoriously difficult for any Government wishing to increase their powers.

But, I am convinced, any referendum aimed at addressing the abuse of

those powers, or limiting the reach of Government, would have little

difficulty in being passed by the people of Australia

The fourth principle is to set out the essential controlling mechanisms in

our Constitutional to properly limit what our elected representatives, the

Government and a High Court, can legally do. In this respect, a practical

system of Citizens’ Recall would provide an excellent tool for the people to

take appropriate action against an elected, or appointed representative, if it

can be proven they have abused their authority or acted dishonestly.

Everything in this vision for a new age hinges on the people’s acceptance of a

practical, understood and viable Constitution that clearly spells out the philosophy

we wish to adopt for our nation. That Constitution is the primary law to which the

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elected representatives, the Government, and the Courts, must abide and stand

accountable.

That Constitution is the most important piece of paper in all our lives and, if we

wish to live in a democracy and cherish our freedom, each of us need to fully

understand the principles we endorse in that Constitution.

The Constitution is not a tool to be manipulated by politicians; it is not simply a

legal document to be interpreted by any High Court without reference to its

philosophic foundations, but it is the tool which must be used to protect the rights

and freedoms of the nation’s people.

The Constitution must always be the property of the people and serve as the

fundamental law by which the people can control and limit the ‘powers’ they are

prepared to concede to their elected and appointed representatives.

If a nation cannot create and live by a proper people’s Constitution, it will have no

choice but to live under the dictates of its Government, its public service and its

arbitrary legal system.

APPENDIX 1

A PROPOSAL

for a

CONSTITUTIONAL REVIEW PROCESS

Graham L. PatersonJune 1998

Draft No. 8 22/6/99

CONTENTS

INTRODUCTION

1. THE PROPOSAL

2. THE CONSTITUTIONAL REVIEW PROCESS

3. PROCESS DETAILS

4. THE SELECTION COMMITTEES

5. THE REVIEW COMMITTEES

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6. THE ADMINISTRATIVE PROCESS

7. AMENDMENT PROPOSALS

8. OVERVIEW

9. APPENDIX 1. - CASH FLOW PROJECTIONS

10. APPENDIX 2 - FLOW CHART

(All cost estimates used in this paper are based on 1999 figures)

INTRODUCTION

This paper describes a Constitutional Review Process in relation to the Australian

Constitution.

The aim is to create the opportunity for every interested Australian Citizen

to become involved in formulating changes to their Constitution.

This concept embraces a fundamental philosophy that must apply in our Democracy -

this philosophy is -

The Constitution of Australia is the exclusive property of the Citizens of

Australia - it is never the property of the Government.

It is therefore rejected that the Commonwealth Government has the sole right

to propose amendments to ‘our’ Constitution.

Unfortunately, this philosophy has not been shared by any Government since

Federation.

All Governments have consistently pursued the doctrine that they are the sole authority

with the power to propose changes to the Constitution.

Consequently almost all proposals put to Referendum so far have been aimed at directly

increasing the Commonwealth Government’s power over the States and, indirectly

thereby, over the people.

THE PROPOSAL

It is a fundamental truth that the Australian Constitution is the basic means

by which the people of Australia can control and limit their Government

and its instrumentalities.

Every Australian Citizen must have the right and opportunity to propose amendments to

their Constitution.

This goal can be achieved by an ongoing Constitutional Review Process

as outlined in this paper. This process would be undertaken at regular

prescribed intervals on an Australia wide basis.

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In addition to the above primary objective, the Australian Constitution should also

fulfill a number of other aims - such as

The protection of Individual Rights

The establishment and maintenance of a harmonious Society based on the

Rule of Law as opposed to the Rule of Force.

The establishment of a Democratic system of Government which must deny

the development of despotic or dictatorial regimes.

The continual and ongoing protection of our status as a Nation and

prohibiting any Government or High Court from undermining this.

The present Australian Constitution deals, to a very great extent, with the establishment

of a Federal Government system.

One of the principle purposes in forming a Federal (or Central) Government was to

provide 'peace', 'order', defence and 'good Government' for the benefit of the people

who agreed to form a Federated Nation.

This was an original purpose behind the formation of the Australian

Nation and, until otherwise decided at a referendum, it should remain as

relevant today as it was at our foundation.

However, our Society cannot remain static - we are in a state of ever-changing flux -

what may have been appropriate in 1900 may well have become less appropriate in the

year 2000.

Because of this continual state of change, there is a very real need to ensure that ‘our’

Constitution remains relevant.

Fundamental principles will not alter significantly over time, but, the system necessary

to properly protect ‘us’ from Government and High Court manipulation will need

constant monitoring.

To accomplish this 'we', the people, need a regular, periodic and

coordinated process to effectively amend the Constitution as and where

appropriate.

This Constitutional Reform Process is based on the above reasoning and supported by

the belief that Constitutional change must always be motivated and driven from the

perspective of the 'people'.

It should be understood that this proposed Review Process is aimed a working

within the framework of an existing Constitution.

It is not designed, or intended, to be used as a vehicle to effect a total rewrite of the

present Australian Constitution

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There is some that is good about the present Constitution and there is much that leaves

a lot to be desired. From the ‘peoples’ point of view many things can, and ought to be,

clarified and improved irrespective whether we adopt a Republican system or retain the

Westminster system of a Constitutional Monarchy.

CONSTITUTIONAL REVIEW PROCESS

A Constitutional Review Process aims to achieve a number of goals.

To provide a mechanism for regular periodic reviews of the relevance of the

Australian Constitution to the Australian Society. (It is suggested that the

Review periods should be at a minimum of 5 years and a maximum of 10-

year intervals. A 7-year interval is possibly a good compromise.)

The ultimate aim of the process is to arrive at a set of proposed

amendments (up to but probably no more than 4 at any one time) to be

presented to the Federal Government.

One of the key factors in this overall Review Process is that it must then

become obligatory on the part of the Federal Government to hold a

referendum within 6 months of receiving the National Review Committee's

proposals.

Another goal is to provide an opportunity for any Citizen of Australia to

participate in the Review Process. This includes any organisation, group or

interested body, including the State and Federal Governments.

The third goal is to establish a formal system to undertake such a review on a

Nation wide basis over a reasonable time frame of, say, 1 year.

Separate State and Territory Constitutional Review Committees will be

established at the outset of each Review period. These Committees would be

under the auspice of the respective Governors of each State or, in the case of

the Territories, an eminent person independent of the Territory Governments.

Each State and Territory Review Committee will have 9 months to promote

the review process, hold Regional forums, canvass proposals for

amendments, analyse, and assess these proposals.

This is followed by a 3 month period where a core of Representatives from

each of the State and Territory Review Committees convene a National

Committee Meeting. The purpose of this National meeting will be to debate

and assess the key proposals originating from the initial 9 month Review

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period. Their responsibility is to decide on the set of Amendments to be

put to Referendum through the Federal Government.

The Referendum would be held completely in accordance with the provisions

laid down in the Constitution exactly as every other Referendum has been

held in the past.

Both State and Federal Governments would use this process to submit

proposals. All such proposals would be treated in the same manner as any

other Submission.

It is not intended that this process be the only avenue available to the Federal

Government (or State Governments for that matter). These Governments

should still be free to organise referendum at any time between the

nominated Review periods if the urgency arose for such a course of action.

Because the present Constitution does not spell out any requirements in

respect to the originating of referendum proposals, this Review Process could

be introduced through Legislation without the need for any Constitutional

change.

What the proposed Constitutional Review Process would be doing is

simply codifying, and improving, an unwritten Convention to make it

more pertinent and relevant to a proper Democratic Constitution.

It is not proposed, or intended, to change the actual Referendum process

as currently defined in the Constitution, thus, appropriate Legislation

for raising proposals for Amendment would be completely legal from a

Constitutional point of view.

DETAILS OF THE REVIEW PROCESS

In spite of all the rhetoric spoken about Australian 'conservatism' and the difficulty in

getting Referendum passed, there really is only one reason for this supposed

‘reluctance’.

The reason is that virtually all Referendum proposals are put forward

for the express purpose of increasing the 'powers' of the Federal

Government.

There has never been a referendum aimed at limiting, let alone

reducing, the 'powers' of the Federal Government.

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Nor has there ever been a Referendum seeking to enhance the 'powers' of the

Citizens of Australia to better control the excesses of these Federal

Governments.

To counter the bias of the present ‘convention’ it is proposed to make the Review

Process as independent as possible from the Government.

This would also mean trying to keep it free from the political arena.

If the Review Process is set down for every 5, 7 or 10 years, each State

Review Committee could be funded by their State or Territory, respectively.

It is estimated that the cost would be approximately 30c per person per year

if the review were conducted on a 7 year cycle. (1999 estimate)

It is further envisaged that the Federal Government would fund the cost of

the National Review Committee for the 3 months of its duration.

The publication of the Reports and final Conclusions would be a joint State

and Federal project.

A Cash Projection Summary is attached as an Appendix (1) to this paper.

It is believed that the best way to obtain the degree of independence needed for the

process is to have it conducted under the auspice of the Governor of each State.

The actual mechanics of the Process would be in 10 Stages as outlined below

STAGE 1. - ADVANCE PUBLICITY

To provide adequate time for the preparation of Amendment submissions each State

and Territory should develop a publicity campaign for 3 to 6 months before the starting

date of the Review Process.

The purpose would be to alert anyone interested that Submissions will be

officially called for at a nominated date in the near future.

This publicity would provide a basic outline of the Review Process and a contact where

interested parties may obtain further information.

STAGE 2. - SELECTION PANEL

The next Stage of the process would be the installation of an independent Selection

Panel.

The purpose of this Panel is to select the people who will make up the

official Constitutional Review Committee.

Each State and Territory would have their own Selection Panel under the

Chairmanship of the Governor.

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The concept of using a Selection Panel to review and evaluate the candidates

for the Review Committees is an attempt to be impartial and be seen to be

impartial.

If the motivation of the Selection Panel is regarded as an opportunity to

provide a community service then there is every chance that the selection of

the Review Committee will be properly impartial and unbiased.

(see accompanying Flowchart.)

STAGE 3. - ADMINISTRATION

The third Stage of the process would be the appointment of an

Administration Manager, or Consultant, in each State and Territory to

establish the Administration function.

This appointment would be for a term of 12 to 15 months.

The Administrator would set up a Computer database to handle the

cataloguing, sorting and statistical reporting of Amendment Submissions.

The appointment of the Administrator would coincide with the installation of

the Selection Panel thus allowing the Administrator to assist in processing of

the nominations for the Constitutional Review Committee itself.

(See accompanying flowchart)

STAGE 4. - ELECTORAL COMMISSION

The Electoral Commission in each State and Territory will have an important

role to play in the preliminary stages of establishing and publicising the

Review Process.

Much of the pre-publicity described in Stage 1 will be the responsibility of

the respective State Electoral Commissions.

Likewise the Electoral Commissions will be responsible for defining the

respective State and Territory Regional areas specified within the Review

Process.

Each Constitutional Review Committee will be divided into Sub-

Committees and each Sub-Committee will be allocated a specific Region of

the State or Territory.

The establishing of these Regions is a part of the preliminary work which,

along with Stages 1 & 2, would be done prior to the commencement of the

actual 12 months allocated to the Review process.

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The determination of these Regions shall be completed within a 3 month

time frame.

STAGE 5. - STATE REVIEW COMMITTEES

All appointments to the State and Territory Constitutional Review

Committees will be made in the 2 Months allocated to the Selection

Committee for this task.

The Constitutional Review Committees would then be established under the

auspice and/or Chairmanship of the Governor of each State.

The initial task of the Review committee will be to form the Sub-Committees

and allocate one of the Regional Zones of responsibility to each Sub-

Committee.

They would also need to determine their method of operation and, in liaison

with the Administrator, commence the preliminary planning for the

forthcoming Regional visits as set out in Stage 6.

The Review Committee would probably need to allocate various areas of the

Constitution in accordance with the available expertise of its Members or in

relation to any areas of particular interest.

An advertising campaign to seek Amendment Submissions will have started

2 to 3 months before the formation of the Review Committee and would be

ongoing for a further period.

It is anticipated that the Review Committee would spend the initial 3 months

in analysing and assessing the submissions received up to that time.

STAGE 6. - REGIONAL VISITS

To promote the Review process and provide wide spread access throughout

each State and Territory a series of Regional forums and meetings will be

held.

The Sub-Committees would each be allocated a Region and they would plan

a series of meetings following a pre-publicity campaign for their Region.

This campaign, along with the logistics of the Regional Visits would be

organised, through the Administrator, to comply with whatever plans were

agreed to in Stage 4.

2 months will be allocated to this Stage to allow the appropriate degree of

access.

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STAGE 7. - SUMMING UP

The final 2 months would be allocated to summing up and analysing submissions by

each Sub-Committee and through combined meetings of the whole of the State Review

Committee.

The goal of this period is to arrive at a set of significant and agreed proposals, which

could be taken to the National Committee Meeting.

It would be essential that the Review Committee should have copies of all the Reports

from each of the Sub-Committees together with relevant statistical information on the

makeup and frequency of submissions and their relationship to respective areas of the

Constitution.

The Committee itself will largely determine the type, and quality, of data they will need

to short list and what they consider to be the more pertinent submissions.

One of the criteria that will probably need to be taken into account is the possible level

of success any Amendment proposal would have in passing a Referendum.

There is not much point in putting up a proposal if it if expected to fail at a

Referendum.

The program calls for one Member of each Sub-Committee to be selected to act as a

Representative to the National Review Committee Meeting.

Each State Review Committee would send a group of 5 members to the National

meeting for the purpose of finalising the set of Amendments that would be put to the

Federal Government.

It is believed that the selection of the National Delegates should be made near the end

of the State's Review process when the calibre and quality of the potential National

Representatives would be better assessed by the Committee Members.

STAGE 8. - CONSOLIDATION

This Stage is a one month interval between the conclusion of the State Review

Committee's final deliberations and the start of the National Review Committee

Meeting.

It is proposed that each State should take it in turn to host the National Committee

Meeting. It would then become the responsibility of the Administrator of the selected

State to arrange the details for this National forum.

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Amongst other things this would involve organising agendas and collating the

Amendment proposals from each State and Territory for consideration by the National

Committee.

It is also anticipated that each State and Territory would provide the services of

their Legal expertise to review the 4, or so, proposals that would be expected to

arise from the respective Review processes.

These legal opinions would then become available for consideration by the National

Review Committee.

STAGE 9. - NATIONAL REVIEW COMMITTEE

The National Review Committee Meetings forms the penultimate Stage of the overall

Review Process. It is expected to take place over a 2 month period.

This National Committee would comprise of, probably, 35 delegates and, ideally,

would be held under the auspice of the Governor General or the relevant State

Governor.

It is expected the National Committee would form Sub-Committees to review and

assess proposals in respect to delegated sections of the Constitution.

The aim of this National Meeting is to come to an agreement on approximately 4

of the most relevant and appropriate Amendment proposals.

These proposals would then be put to the Federal Government as the final outcome of

the Process.

There should be a fair degree of flexibility as to how this National Forum will operate

but it should be understood that the responsibility for the final decision will rest

with this Committee.

It may be considered appropriate to refer some issues back to the State Committees to

give them the opportunity for comment, but, it must not be to seek endorsement or

approval of such issues - this remains the responsibility of the National Committee.

STAGE 10. - REFERENDUM

This is the final Stage of the process where the selected proposals are handed over to

the Federal Government.

When this Process is introduced as Legislation, there would be a moral obligation on

the Federal Parliament to guarantee compliance with Section 128 of the Constitution.

This requires passage through Parliament of all recommended amendment proposals

put forward by the National Review Committee.

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The reason why this guarantee needs to be observed is because the proposals

emanating from this Process are a direct expression of the will of the people for

which Parliament is honour bound to observe.

The Government would then have 6 months to arrange the Referendum to put the

proposals to the people.

It would be the responsibility of the National Committee to include the reasons and

justification for each of the proposed Amendments when handing this over to the

Government.

These explanations would then form the basis of the arguments for the Amendments

when put to the Referendum.

The last part of this final Stage is the publishing of the Summary Reports from each

State and Territory Review Committee and from the National Committee, together with

a listing of all the Submissions received throughout the process.

THE SELECTION PANEL

PRINCIPLE CONCEPT

The concept of using a Selection Panel to review and evaluate the candidates for this

Committee is an attempt to be impartial and be seen to be impartial.

This concept is further enhanced by proposing the Selection Panel be appointed through

the Governor's Office rather than through the Government or the Public Service.

PRINCIPLE OBJECTIVE AND RESPONSIBILITY

It is proposed that the Selection Panel shall comprise of 6 independent appointees

vested with the specific responsibility of selecting the members of the State's

Review Committee.

If the motivation of the Selection Panel is regarded as an opportunity to provide a

community service then there is every chance that the selection of the Review

Committee will be properly impartial and unbiased.

MAKEUP OF THE SELECTION PANEL

In order to gain a cross section of community support a number of Guidelines are

suggested for initiating this Selection Panel itself.

The purpose of the Guidelines is to achieve a balanced representation and avoid

weighting the Committee in any direction.

The suggested Guidelines are:-

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That all appointees should be available to act in a voluntary basis for the 2 months

duration of the commission.

All expenses would be met during this period but no remuneration would be

payable.

It is suggested that separate appointees be selected from the following broad range of

Community groups

The Religious Community

Retirees

The Youth Community

The Unions

The Business Community

The Rural Community

The Governor's Office would canvass the peak organisations of each of these

Community Groups to seek a short list of candidates for consideration.

TIMING

It is anticipated that this process could be completed within a 2 month timeframe.

It is also proposed that the process commence 2 months prior to the designated starting

date of the Review period and the final appointments to the Selection Panel coincide

with this date.

(See Flowchart attached)

ADVERTISING

The advertisements calling for nominations to the Review Committee would also

commence 2 months prior to the official starting date of the Review period. The adverts

would run for a period of 6 weeks with the closing date set for 2 weeks before the

appointment of the Selection Panel. Thus all nominations would become available to

the Panel immediately it is formed.

ADMINISTRATION

An Administrator will also have been appointed prior to the formation of the Panel. He

or she would then be available to help in the processing of the nominations and the

arrangement of interviews, as appropriate.

SELECTION PROCESS

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It is envisaged that the Selection process for the Members of the Review Committee

would be conducted over a 2 month period.

While this 2 months will be part of the 12 month Review Period it is planned this

way to allow time for the receipt and cataloguing of Amendment submissions.

Ideally the decisions of the Selection Panel in determining the Review Committee

membership ought to be unanimous but, at the very least, there must be a clear majority

if a vote is necessary

Some indicative guidelines regarding the assessment and selection of candidates for the

Review Committee positions are set out in the next Chapter dealing with the Review

Committee itself.

THE REVIEW COMMITTEES

CONCEPT AND PURPOSE OF REVIEW COMMITTEES

The concept of having separate Review Committees in each State and Territory is four-

fold.

First and foremost, it will allow better and wider access to, and for, a greater number

of people.

Secondly, it will distribute the work load in respect to submissions over a larger

number of people and thereby reduce the time frame necessary in processing and

evaluating proposals for changing the Constitution.

Thirdly, it represents a much wider spread of Community involvement and reduces

the actual, or perceived, bias that would very likely accompany the installation of a

single National Review Committee from the outset.

Fourthly, it deliberately sets out to divorce the process from direct Government and

Public Service involvement in the selection and appointment of the Committee

Members.

The primary function of the Review Committees is to solicit suggestions and

proposals from the general community in respect to changes the Community

would like to see in the Australian Constitution.

The Review Committees then have the responsibility of evaluating and assessing

these proposals with the objective of submitting a selected number of these to the

National Review Committee for final consideration.

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As mentioned above, one of the principle factors in relation to this whole Review

Process is not to seek a total re-write of the existing Constitution. While this may

have considerable merit in the eyes of some people the purpose of the Review Process

is to work within the existing Constitution. The process does this by placing the

authority to propose changes in the hands of the ‘people’ and removes this

usurped prerogative from the Government.

GUIDELINES FOR REVIEW COMMITTEE APPOINTMENTS

There are a number of guidelines that need to be taken into account when determining

the final composition of the Review Committees.

These guidelines should not be construed as implying the need for any sort of bias in

the selection process. They are simply factors that should be weighed up and

considered as part of a logical assessment of candidates.

1. It would seem obvious and logical that all the selected Members should

have a reasonably sound knowledge of the Australian Constitution.

2. All members ought to be able to demonstrate an interest and concern for

the way the Australian Constitution functions.

3. This does not mean that applicants need a background in Constitutional

Law - the Constitution is, or ought to be, about people hence the Legal

aspects should not be a primary requirement in the appointment of

Members. By the same token a background in Law, Constitutional or

otherwise would not preclude the selection of any applicant.

4. All other things being equal, the final composition of the Review

Committees should strive to achieve a reasonable representation of the

population.

This is meant to imply that, provided the initial guidelines are met,

there ought to be a reasonable gender balance as well as a reasonable

attempt to cover the age spectrum.

5. In terms of the number of Members on the Review Committee this

would probably vary between the States and Territories. In part it would

depend on the number of Regions the State or Territory is divided into.

This is likely to range from one in the case of Canberra to 5 in the case

N.S.W. and Queensland.

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It is suggested Review Committees should have a minimum of 10 and a

maximum of 25 Members.

6. It can be reasonably assumed that applications will be received from a

wide range of interests and, hence, one of the factors that will need to be

taken into account is the person’s ability to work with other people.

All selected Members must appreciate that they are there to

represent the Community’s views on changes to the Constitution.

They are not there to push their own particular view point, no

matter what it may be or how passionate they may believe in it.

REVIEW COMMITTEE GUIDELINES FOR SUBMISSIONS

The Legislation setting up a Constitutional Review Process must not try to spell out

rigid or specific rules about how the Committees must assess Amendment Proposals.

It must be left up to each Committee to develop their own guidelines and process.

There are a number of possible principles that could be used to help in the evaluation of

Submissions. It must be left up to each Committee to arrive at their own set of

guidelines and priorities, but, with an ultimate aim of establishing some form of

consistency in their deliberations.

Amongst these principle issues (without conferring any priority) could be:

1. Frequency of similar types of Submissions

2. Constitutional ownership issues.

3. Distribution of ‘powers’ and their limits or control.

4. Involvement of individual Rights and freedoms.

5. Levels and areas of concern expressed by different groups of respondents.

6. Realistic appraisal of the chances of the Amendment being successful at a

Referendum. (There would seem little point in putting up a proposal for

Referendum if it is fully expected to fail)

7. Being open minded and trying to be totally impartial in assessing submissions.

8. Keeping Party Political issues out of Committee deliberations.

9. Not to reject any proposal on the sole basis of the number of like submissions.

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It may well be that some good ideas and valid reasoning may be associated with

infrequent proposals.

10. Addressing the future needs of Society, and how the proposals for Constitutional

change might best contribute to this.

11. The importance of making the Constitution pertinent by saying what it really means

and by describing ‘our’ system of Government as it actually is (or should be!)

As the Process develops, other issues of prominence will come to light. It will then

become the responsibility of each Committee to take these issues into account and

weight them according to their perceived levels of importance.

THE ADMINISTRATION PROCESS

There will be a considerable amount of Administration associated with the Review

Process itself, the appointment, firstly of the Selection Panels and then of the Review

Committees.

Because of this obvious workload and the limited duration of the Review it is believed

that the appointment of a contract Administrator, independent of the Government and

the Public Service would best serve the process.

APPOINTMENT

Probably the fairest and simplest method of seeking a suitable Administrator would be

to have the Governor General’s Office contract a suitably qualified Employment

Agency to advertise and short list applicants.

As it is envisaged that this overall Review Process would be carried out under the

auspice of the respective State Governor Generals, then they should be responsible for

the final selection.

Because the Administration will be a wide ranging commission, there is no reason why

a suitably qualified and experienced Firm could not apply for the job as a package deal.

Ideally, this would include all necessary Computer Services, compilation and possibly

printing of reports and the ability to bring in other short term Staff as appropriate.

TIMING

The appointment of the Administrator or Consultant should be made approximately 3

months prior to the commencement of the Review Process itself.

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This will allow the Administrator to assist in the processing of the Selection Panel and

commence the early planning for the advertising and subsequent processing of Review

Committee applicants.

SELECTION PANEL ADMINISTRATION

Once the Selection Panel is in place there will be a great deal of work in processing the

applications for the Review Committee. This will include arranging interviews, sorting

out any necessary travelling and accommodation arrangements, correlating results and

helping with the compilation of appropriate short lists.

ADVERTISING

Following on from the pre-publicity regarding the forthcoming Constitutional Review

Process the Administrator would be required to initiate the publicity campaign seeking

actual amendment proposals.

This campaign would require widespread advertising throughout the State in both major

newspapers and Regional papers.

The level of TV advertising would need to be determined from the budget that would

be allocated to the overall Review Process by the respective State Governments.

Because of the nature of interested parties and understanding the level of knowledge in

respect to the Constitution within the general public targeted advertising may well

prove the most effective method in generating proposals.

As Regional visits are planned for Sub-Committees from the Review Committee itself,

local advertising will be essential well in advance of these planned visits.

SETTING UP AN INFORMATION SERVICE

Because the concept of a People’s Constitutional Review Process is quite new to the

Australian political scene it is expected there will be a need to establish a formal

Information Service.

This Service would consist of both published material and an Information phone

Service.

There would also need to be a proper Internet link set up which will require periodic

up-dating as patterns develop in the more frequently asked questions.

ESTABLISH GUIDELINES FOR PROPOSALS

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One of the main reasons behind the Review Process is to open up the opportunities for

the people of Australia to have a direct say in the ongoing development of ‘their’

Constitution.

To provide this opportunity in a meaningful way certain guidelines would need to be

established.

Some of the issues to be addressed are :-

1. That the object of the Review Process is to promote the orderly and systematic

development of the Constitution as distinct from a wholesale rewrite of the

document.

2. It also needs to be recognised that a limit should be set on the number of

amendments that could reasonably be put to the Australian people at one time. What

this limit is should probably be left to the National Review Committee to decide. It

should never be a fixed limit and must remain an open question for each separate

Review Process to determine in the light of the responses they receive.

3. The legal impact of certain amendments will have to be considered as will the issue

of retrospectively.

4. There must be no restrictions placed on the initiation of any amendment proposals in

terms of who is permitted to make a submission.

5. A formal procedure would need to be set up and followed for the submission of

proposals but this must be kept as straightforward and simple as possible.

6. Each submission should deal with only one specific aspect of the Constitution at a

time.

7. Each Submission would need to provide a reference to the Chapter, Section and/or

Clause to which the proposed amendment relates.

8. Each submission should include an outline of the reasons, purpose and desired

objective of the proposed amendment.

9. All submissions must be acknowledged by the Administrator.

CLASSIFYING AND CATALOGUING PROPOSALS

The classifying and cataloguing of the amendment submissions will be a significant and

important function of the Administrators duties. It is anticipated that this process will

be done under two principle Divisions.

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1. DIVISION 1.

This will involve sorting all the submissions under the specific Chapter and Section

of the Constitution to which they relate.

This cataloguing will also include cross referencing as well as defining new additions

to the Constitution compared to changes of the existing wording.

2. DIVISION 2.

This second Division will sort submissions in relation to the Regional Zone from

which they are initiated. Each zonal list will be catalogued in the same manner as

used for Division 1. Each Sub-Committee will receive a list of all submissions from

their Regional Zone. These lists will be progressively updated on a routine basis as

further submissions are received.

3. As the process develops other forms of sorting and classifying will probably be

requested hence it is essential that an adequate Data Base system be used. There are

a number of suitable, proven, systems available in the market which obviate the need

to consider any customised software for this exercise.

STATISTICAL ANALYSIS

As the sorting and classifying process will be done on a normal computer Data Base

program it will be readily possible to extract a set of Statistics.

One of the principle statistics that will be utilised is the frequency of proposals in

relation to specific areas of the Constitution. Obviously, this would indicate the areas of

most concern from a State to State basis and also from a National point of view.

It will be the responsibility of the Administrator to provide such Statistical analysis as

maybe requested by the Review Committee.

Furthermore, the State/Territory Administrators will be required to liase in order to

produce a coordinated set of statistics for the National Review Committee near the end

of the various State/Territory programs.

AMENDMENT PROPOSALS

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The main purpose for proposing this Constitutional Review Process is to open up the

opportunities for the people of Australia to have a direct say in the ongoing

development of ‘their’ Constitution.

To provide this opportunity in a meaningful way certain guidelines ought to be

considered for the submission of Amendment Proposals.

The issues that would need to be considered are:

1. As mentioned in the previous Section the object of the Review Process is to promote

the orderly and systematic development of ‘our’ Constitution.

The Process is not intended to be means for promoting a wholesale rewrite of the

Constitution.

If, at some stage, a rewrite were to become the intention of the people of Australia

then it would require quite a different Process to that envisaged here.

By the same token, if such a rewrite were to be achieved, there would still be a need

for some form of periodic Review Process to ensure that, whatever Constitution is

adopted, ‘we’ have the opportunity to keep it current.

‘Our’ current Constitution, while it is by no means “perfect”, does have a hundred

years of experience behind it, coupled with several hundred more of tradition and

heritage.

If ‘we’ can acquire the opportunity to start systematically developing and improving

on the foundations ‘we’ already have this would seem infinitely better than

“throwing out the baby with the bathwater.”

2. Because the basic concept of this Review Process endorses, and retains, the

Referendum process set out in the Constitution, this tends to imply there will be

some sort of limit on the number of Amendments that could be put to the people at

any one time.

Just what this limit is, probably, should be kept flexible.

For example, it might be appropriate to propose 5 or 6 Amendments if all such

Amendments dealt with the one issue and formed a logical and progressive

sequence.

On the other hand, it might be completely inappropriate to propose 3 or 4

Amendments dealing with totally different areas of the Constitution especially if the

overall impact of the changes are not clear.

The responsibility for deciding how many Amendments should be put to the

Australian people is, probably, best left to the National Review Committee.

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3. It would be imperative to consider the legal impact of any successful Amendments

on past decisions of the Courts.

In this respect, it would seem prudent that any future changes to the Constitution

could not be applied retrospectively. Certain guarantees would need to be put in

place to prevent this happening.

4. There should be no restrictions placed on the initiation of any Amendment proposal

in terms of who is permitted to make a submission.

This means the process would be open to individuals, to groups, to special interest

organisations, political parties and to both the State and Federal Governments.

5. All submissions would be required to follow a basic formal procedure for

consideration by the Review Committees.

Some of these formalities might include:

(a) That each submission provide a specific reference to the Chapter,

Section and/or Clause to which the proposed Amendment relates. This

would apply, either to Amendments to existing wording or, where

completely new proposals might be inserted.

(b) Each submission should only deal with one specific aspect of the

constitution at a time - it should not incorporate different and separate

issues.

There is no limit on the number of submissions that any nominee might

wish to make - the only stipulation is that each one must be on its own

separate submission.

( c) Each submission will need to include a reasonable explanation of the

purpose and reasons behind the proposed Amendment. This explanation

should incorporate an outline of the desired results which would

represent the aim of the Amendment.

This supporting information is very important in helping to verify the

intent and purpose of the proposed Amendment.

This is especially so from a legal context where the interpretation of

words themselves may alter the intended purpose.

(d) It is probably not necessary for submissions to include a definitive

example of the wording of any proposed Amendment provided the

supporting information explained in ( c) above is included.

There is no reason why any nominee should not include specific

wording if they so wish. The Review Committees, both State and

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National, will have the right to decide on the final wording in the light of

other submission and legal opinion where sought.

6. All submissions must be acknowledged by the Administrator and any that do not

conform to the formalities that might be adopted should be returned to the sender

explaining the non-conformance and requesting re-submission.

7. All accepted submissions would be given an Identification Number which would be

sole means of Identification when passed on to the Review Committee.

It is believed that keeping the identity of the proposer confidential will add to the

element of independence when proposals are assessed by the Review Committees.

8. Amendments relating to ‘Conventions’ may well involve a significant percentage of

other proposals. As virtually all the ‘Conventions’ are unwritten and are largely

based on historical precedent defining them in the Constitution will warrant

considerable thought and consideration.

The problem with ‘Conventions’ is that they tend not to be specific - generally they

are deliberately and preferably vague and flexible.

This allows the Politicians and Lawyers to interpret ‘Conventions’ in a number of

different ways to suit the expediency of the situation at any given time.

It is precisely because of this flexibility that there is a very strong case for making

certain of the ‘Conventions’ far more specific.

Virtually all such Amendment proposals would involve adding completely new

wording and/or Clauses to the Constitution.

Tightening up ‘Convention’ practice will almost inevitably reduce the flexibility of

the Politicians and strengthen the control that the people have over their elected

Representatives.

9. The Review Process should become the conventional vehicle for both the State and

Federal Governments to make submissions. It would be anticipated that the bulk of

such submissions will deal with the division of powers between these two entities.

As stated above, it is not intended that the Review Process would necessarily be the

exclusive means for Governments to propose Amendments. Governments would

retain the right to propose Amendments at any time should the urgency for such

action arise.

There would be nothing to stop the Government from adding their proposals to the

final submissions put forward by the National Review Committee.

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OVERVIEW

As the Constitutional Review Process is an entirely new concept it is impossible to

anticipate the level of response that might be achieved in Amendment proposals.

What is possible though is to project some of the broad categories of proposals that are

likely to result. This does not imply that there is any question of ‘right’ or ‘wrong’

about any form of submission.

This Overview is simply an indication of the type and extent of proposals that logically

would be expected to be raised.

In essence the categories would be as follows:-

1. Technical and Legal

It is almost certain that there will be a number of technical and/or legal

proposals received, which, while having merit, may need careful presentation in

order to relate to the broad population.

2. Legislative

It is also highly likely that there will be a number of proposals that will overlap

or encroach into the area of Legislation. It will need careful assessment to

determine whether such proposals are proper for a Constitution or whether they

are better dealt with through Legislation.

3. Philosophic

There will most likely be a number of submissions dealing with the Philosophic

approach to the Constitution.

In essence such proposals would involve defining matters of principle which

people see as crucial to the whole question of interpretation of the Constitution.

The Constitution should be viewed as the ‘home of principles’ rather than the

place to expound detailed Law. Sometimes there is a necessary stage between

pronouncing a ‘principle’ and making sure the intent and purpose is clear.

Where such explanations are deemed necessary, to avoid misinterpretation, they

should be included in the Constitution.

4. Single Issues

It is almost certain there will be a number of proposals promoting Single Issue

items that are obviously considered very important to the groups, or individuals,

making the submission.

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Part of the advantage of the Review Process is that it allows the

Constitution to be assessed in its entirety. The Review Committee can

evaluate Single Issue items in the context of the overall Constitution and

also in the context of Society’s concerns at the time.

5. Subtle Amendments

One would expect a number of Amendment Proposals suggesting minor

changes to either the Constitution itself or to the wording of certain Sections.

Some of these proposals may involve quite profound changes in Legal

interpretation when fully analysed.

It will be in situations such as this that the accompanying explanation of the

proposer’s purpose and intent of the amendment will help in assessing the

importance and effectiveness of the change.

6. Frivolous Proposals

Very likely, there will be a percentage of irrelevant and/or frivolous proposals

submitted. Depending on the extent of supporting argument that may or may not

accompany the proposals, the Review Committee should be able to assess

whether there is any foundation in the submission.

7. Major and Significant Proposals

It is guaranteed that there will be some submissions proposing major and

significant changes to the Constitution.

The Review Process should be able to evaluate these proposals on their merits.

In most cases it would be expected that these submissions would be

accompanied by properly argued supporting documentation.

These proposals will require a considerable amount of discussion and evaluation

to determine their value, importance and likely success.

CONCLUSION

It is obvious that the Constitutional Review Process will open up the

Constitution to a wide ranging and thorough scrutiny.

This will be achieved in a way that has never been done previously.

What is more important is that the final outcome of the Process will be

translated into definite action.

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Of equal importance is the fact that the people of Australia will be the ones

driving the changes and not the Government.

The People will be in a position to reclaim ownership of the Constitution which

should have always been theirs from the start.

The further benefit of the Review Process is that it will develop a thorough and

systematic evaluation of the relevance of the Constitution to current and future

conditions.

This type of evaluation will be done from the People’s perspective and not from

the vested interests of the Government.

Another very pertinent benefit will be the message passed on to the High Court

of Australia.

The High Court has tended on many occasions, and particularly of late, to spuriously

assume an insight into so called “public opinion”. These assumptions have been made

without any supporting evidence to back them up.

The deliberations, submissions and results of the ongoing Constitutional Review

Process will now be able to give the High Court a much truer picture of “public

opinion” as far as perceptions of the Australian Constitution are concerned.

There would seem to be justifiable grounds to insert in the Constitution a

number of limitations on the High Court restricting their ability to arbitrarily alter the

principles and intent of the Constitution.

Nobody, and certainly no unelected group of people, should be able to place

themselves above the Constitution as appears to have happened on a number of

occasions throughout the history of the High Court.

The right to alter the Constitutional intent rests solely with the People and not

with the Government and certainly not with the High Court.

The High Court is there to interpret the Constitution and the Laws derived from the

Constitution within the context of the original intent.

The High Court is not there to make new laws or radically change the intent of the

Constitutional meaning.

APPENDIX

CASH FLOW PROJECTIONS FOR EACH STATE

(These were based on 1998 costs)

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PRELIMINARY PERIOD

MONTH 1. Advertising through the Electoral Commission

MONTH 2. Continued Advertising as above

MONTH 3. Appointment Advertising for Review Committee $150,000

REVIEW PERIOD

MONTH 1. Appointment of Administrator

On going Advertising

Contracting Computer Cataloguing

Organising Acknowledgments to Adverts.

Selection Committee Expenses $200,000

MONTH 2. On going procedures as above $200,000

MONTH 3. Appointment of 25 Review Committee

Members progressively during this period. $250,000

Administration and on going Advertising $150,000

MONTH 4. Review of Submissions by Sub-Committees

Computer cataloguing and Administration $400,000

MONTH 5. Continuing on as above

Planning and preliminary arrangements for

Regional Visits of the Sub Committees. $500,000

MONTH 6. Regional Visits by the Sub Committees $500,000

MONTH 7. On going Regional visits $500,000

MONTH 8. Coordinated Review Committee meetings

for analysis of Submissions and evaluation

proposals along with statistics. $350,000

MONTH 9. Continuation of Review Committee appraisal

and compilation of final proposals for

submission to the National Committee

Forum.

Selection of 5 delegates to represent the State

on the National Review Committee. $350,000

MONTH 10. Establishment of the National Review

Committee in the nominated State.

Winding down of the State Review

Committees except for the 5 selected

representatives.

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Collation of each State Report and

implementation of the planning and

Admin. Procedures applicable to the

National Review Committee. $125,000

Proposed Federal Government contribution

to the cost of the National Forum $200,000

MONTH 11. Each State to be responsible for the cost

of their Delegates to the National Meeting

plus a share of the Administration. $125,000

Federal Government contribution $200,000

MONTH 12. Winding up of the National Review

Committee deliberations and the drafting

of a final Report covering the Resolutions

to be forwarded to the Federal Government. $125,000

Federal Government Contribution $200,000

MONTH 13. Publication of the Final Reports from each

State and the Final Report from the National

Review Committee. $150,000

Estimated Total Cost for each State $4,075,000

Estimated Commonwealth Govt. Cont. $ 600,000

(Estimated Administration Costs included in each State Expenditure $1,700,000)

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