The French political philosopher Montesquieu, one of the greatest figures of the Enlightenment, declared England in the seventeenth and eighteenth centuries to be a ‘republic hiding under the form of a monarchy’. He praised the English constitution as an ideal model for republican government.
He saw the separation of the three powers, the executive, the legislature and the judiciary as ensuring political liberty. The essential part of this is that the judicial power only be separate. Since Montesquieu, the Westminster model has emerged where the executive and the lower house are intertwined. This has advantages and retains the independence of the judiciary.
[ Her Majesty's Judges at the Service for the Opening of the Law Term, 2009: The Great Synagogue, Sydney ]
...principle challenged....
The separation of the judiciary had, he believed, to be real, and this was certainly the case in England since the Glorious Revolution. Until then the judges held office at pleasure. Thereafter judges held office efuring good behaviour. They could only be found to have breached this bya resolution of the two houses of parliament, yet another argument for having more than one house.
The principle is under threat in some jurisdictions through an increasing reliance on acting and untenured judges. One former British colony, Singapore, was once criticised for an excessive reliance on the use of acting judges, especially in the use of younger acting judges. With the unwise rule that judges must retire by a specific age, there has been an increasing reliance in some Australian jurisdictions on commissioning recently retired judges as acting judges.
....New South Wales tests the principle....
NSW judges must retire at 72, but can then be appointed as acting judges on a full- or part-time basis until the age of 77. Those acting had by early 2010 made up about a fifth of the judges on the Supreme and District courts. This is a useful device, but open to the temptation to for politicians to award some and punish others. This creates the situation where a judge will know that if he rules aginst the government he will not be rewarded. It is not suggested that a judge would be affected by this. But it is an unhealthy situation.
As a Land and Environment Court judge last year, Justice David Lloyd is said to have embarrassed the government by ruling that the Minister for Planning Frank Sartor was biased when he approved Catherine Hill Bay and Gwandalan land developments by the Rose Group. The developer's contribution to the state of 300 hectares of conservation land, in exchange for the minister's sympathetic consideration of the developments, amounted to a land bribe, the judge ruled. Now the government has failed to appoint him as an acting judge, notwithstanding the recommendation of the Chief Justice and the problems associated with the shortage of judges in New South Wales.
This is a thin edge of the wedge and should concern all constitutionalists. Rather than having untenured judges, it would be better if the retirement age were extended to 77 or better, removed altogether. It is unfortunate that at the federal level, there was no opposition to the Fraser government proposal in 1977 to require judges to retire at the now too young age of 70. It should have been at an age to be determined by Parliament, rather than being made a constitutional rule.
There was a failure by the politicians in 1977 not to present a case against the proposal. There was a failure by the media not to test it. Fortunately in 1999, there were those who would argue against the bien pensant consensus.
[In “Malcolm Fraser recalls what wasn't said,” published in The Australian, 15 March 15, 2010, Sir David Smith* recalls what actually happened on 11 November, 1975 when Gough Whitlam was dismissed as Prime Minister by the Governor-General, Sir John Kerr.
Sir John had explained that Mr. Whitlam was dismissed for his continuing breach of the constitution, that is, attempting to govern without a grant of supply from the Parliament.
Sir David was responding to a claim by Malcolm Fraser that before the dismissal, Sir John Kerr had telephoned him to obtain certain assurances when he was appointed prime minister ( see this column, “Why, Malcolm Fraser, why?” 27 February 2010).
Sir John Kerr had always denied this. Sir David demonstrates that Malcolm Fraser had until recently also denied any prior knowledge of the dismissal.
Mr. Fraser was once a strong supporter of the Crown. But in 1999 he campaigned with Mr. Whitlam for the introduction of a politicians' republic. He argued that had Australia been a republic in 1975, the prime minister would not have been dismissed. That is true. The president would have been dismissed instead and the prime minister would have continued to be in breach of the Constitution.]
[ Sir David reads the proclamation dissolving the Parliament, 11 November, 1975 ]
In the second extract from Malcolm Fraser's political memoirs (The Weekend Australian, February 20-21, 2010), Fraser claims that he received a phone call from the governor-general, John Kerr, on the morning of November 11, 1975. That is true. Fraser goes on to describe what the governor-general said to him. Fraser's account is not true.
On that morning I was with the governor-general in his study and we were going over the documents that might be needed later in the day when he received a phone call.Since it was from a member of his family I left the room and returned to my office.When the governor-general called me back into the study he told me that he had just received a phone call from prime minister Gough Whitlam to say that he would be coming out to see him before lunch to recommend a half-Senate election, to be held on December 13.
Kerr also told me that he had then phoned opposition leader Fraser, who confirmed that there had been no change in the opposition's position and that it would continue to block supply in the Senate.
[ Immediately after the caretaker government was sworn in : 11 November, 1975]
There was no mention of any other matter being discussed. The governor-general and I then completed our checking of the various documents that had been prepared for any of the eventualities that might occur that day.
...no mention of claimed immunity....
These included a letter that I had drafted on instructions from Kerr which Fraser would be asked to sign in the event of a change of government.In signing that letter, Fraser would undertake to seek to ensure the passage of the appropriation bills then before the Senate, and to observe the customary caretaker conventions between the calling of an election and polling day, and would make no appointments or dismissals or initiate new policies before a general election was held.
Contrary to Fraser's claim in his memoirs, that letter made no mention whatsoever of a "guarantee that no action would be taken against the ministers of the Whitlam government over the loans affair, and that there would be no royal commission", nor were such matters ever mentioned to me by the governor-general as we considered the drafting of the letter that Fraser would be asked to sign.
[Still unchallenged]
The letter simply set out the standard caretaker conventions that had been observed by every government before every election that I had been associated with in my public service career.
...Whitlam could have remained PM...
The governor-general had prepared for every eventuality, including the possibility that Whitlam might choose to go into the election as prime minster by changing his mind at the last minute and recommending a dissolution of both the Senate and the House of Representatives - a double dissolution.
After all, he did have 21 bills, apart from the appropriation bills, that had been blocked by the Senate, which could constitute double dissolution triggers.A half-Senate election on its own would have done nothing to resolve the deadlock between the two houses of the parliament because it would have resulted in the election of Senators who would not take their places until after July 1, 1976, and thus could not alter the balance of power in the Senate until then, by which time the Australian economy would have been destroyed and the system of government would have collapsed.
...Whitlam insists on governing without supply...
In the event, when Whitlam entered the study he told the governor-general that he intended to govern without supply from the parliament; but before he could present his defective advice, his commission as prime minister was withdrawn by the governor-general.
Fraser claims that, in the early morning phone call from the governor-general, as well as confirming that the opposition stood firm, he was asked to agree to observe the standard caretaker conventions, plus the two quoted above that were not included in the letter that he was later asked to sign, thus giving him early warning of what the governor-general would do later that day. Kerr denied this claim, and what I saw and heard that morning supports that denial.
As soon as Whitlam had left, I escorted Fraser into the study and remained in the room until after he had been sworn in as prime minister.I heard the governor-general tell Fraser what had just transpired and ask him if he would accept a commission as prime minister, and read him the letter that he would be asked to sign.
As I told the Sydney Institute in November 2005, I had the clear impression that Fraser was hearing these conditions for the first time.
.....what the contemporary records say...
Kerr's memoirs were written just two years after the dismissal, and he had the benefit of meticulous contemporary records kept at Government House and now in the Australian Archives.
Fraser's contemporary records make no mention of the note that he now claims to have made of the phone call he received from the governor-general, and the note on which he now relies in his memoirs is a handwritten note scribbled on the back of a scrap of paper, and obviously signed and dated later with a different pen.
Finally, there are the reports published by two of Australia's leading political journalists: in 1976 by Alan Reid that Fraser had told him on November 11, 1975, that he had no knowledge of the governor-general's intentions when he went out to Government House earlier that day; and a report in 1995 by Paul Kelly that Fraser had told him that he had not kept the piece of paper on which he had recorded his phone conversation with the governor-general.
The miraculous appearance of the piece of paper in Fraser's memoirs in 2010 smacks of what lawyers would call "recent invention".
*Sir David was the Official Secretary to Sir John Kerr and four other Governors –General. He is the nation’s leading expert on matters vice-regal – his 2005 book, Head of State, is the most authoritative work in this area.
A picture of the young Queen Victoria in an intimate and alluring pose indicates may not have been the prude many believed her to be, reports Lulu Sinclair, of UK Sky News Online, 12 March 2010 The rarely displayed portrait by FX Winterhalter shows the Queen leaning against a red cushion with her hair half unravelled from its fashionable knot.
Victoria commissioned the painting for Prince Albert's 24th birthday as a surprise and refers to it in her journal as "my darling Albert's favourite picture". It shows the Queen was once a lively, romantic and open-minded young woman, the exhibition organisers said.
[ Royal Family : Franz Xaver Winterhalter ]
The portrait is on display as part of the Victoria and Albert: Art and Love exhibition which runs from March 19 to the end of October.Ms. Sinclair reports that another by the same German artist shows Florinda and her companions preparing to bathe, unaware they are being watched by King Rodrigo from the bushes nearby.
The picture was inspired by the Spanish legend set in medieval Spain. According to the legend, it was the King's jealousy that led to the Moorish invasion of Spain. The painting, along with several others in the exhibition, also dispels the idea the Queen disapproved of nudity in art.
Victoria herself bought the painting as a birthday gift for Prince Albert, saying: "It is a most lovely picture containing a group of beautiful women." The exhibition, being staged in The Queen's Gallery at Buckingham Palace, displays 400 works from the couple's collection, including paintings, drawings, photographs, jewellery and sculpture. It concentrates on the monarch's love life, from her engagement to Prince Albert in 1839 until his death in 1861. The couple used art and beautiful things as an expression of love - their enthusiastic collecting was on a scale unique among members of the British Royal Family.
"Collecting was central to their relationship," a spokeswoman told Sky News Online. "It tells a different story of Victoria to the one that so many people imagine."
The following trailer is of the excellent film, Young Victoria.
The Commonwealth Parliament was opened on 9 May 1901 in Melbourne by the Duke of York, subsequently King George V. The only building in Melbourne large enough to house the 14,000 guests was the Royal Exhibition Building. After that the Parliament met in the magnificent Parliament House, Melbourne, which it borrowed from the Parliament of Victoria.
The Victorian Parliament then moved to the Royal Exhibition Building.
On 9 May 1927 the Commonwealth Parliament moved to the new national capital at Canberra, where it met in what is now called Old Parliament House. This was meant to be temporary, but which housed the Parliament for more than 60 years. It was opened by the next Duke of York, subsequently King George V.
In what had become a Royal tradition, the present Parliament House was opened on 9 May 1988 by the Queen of Australia, Her Majesty, Queen Elizabeth II.
...visit to Australia not delayed...
When Queen Victoria died the planned visit by the Duke of York, later King, to open the Australian Parliament was to be delayed in the light of the bereavement and the King Edward and Queen Alexandra’s’ close attachment to their only surviving son, recounts Simon Heffer in his fascinating study, Power and Place, The Political Consequences of King Edward VIII, Weidenfeld & Nicholson, London 1998. However it soon became clear that this would be a disappointment to Australians. Australia had already assumed considerable importance in the thinking of the Royal Family. The visit went ahead.
The book also demonstrates the significant role The King played in public life and world affairs. Should you wish to acquire this book, you may order it from the London based Book Depository at an excellent price and free of VTA tax and postage. Follow the links for either a hardback copy at $32.69, or a paperback copy at $21.23.
Australia could be seriously affected if Argentian invades the Falklands again, warns Dr.Hal G. P. Colebatch (“Obama needs to support Brown over Falklands”, The Australian 5 March). He writes that BHP has been warned it will face sanctions in Argentina if it pushes ahead with oil exploration offshore of the Falklands. If Argentina got away with such an invasion, he believes, it would damage the whole framework of international law in a manner ominously reminiscent of the way the international order began to unravel in the 1930s.
[ The Falklands War 1982: clockwise from top left: The sinking of the ARA General Belgrano; the RFA Sir Tristram; Argentine prisoners of war; Margaret Thatcher; British cemetery at San Carlos; Satellite image of the Falkland Islands; War memorial in Buenos Aires; Members of the Argentine Third Military Junta; British Royal Marines surrendering at Government House.]
“Of course Argentina would be mad to invade the Falklands, which could still be made very costly for it, but it has shown itself capable of such irrationality once before in similar circumstances, and conquering them seems a widespread national obsession,” he says.
“A strong Anglosphere stance, a strong statement by Obama or Clinton now, would be the end of the matter. Argentina will probably not launch another war over the Falklands. But if it does, Brown and Obama, as well as Kirchner will have a full share of blood on their hands for letting the situation come about.”
...special relationship damaged?...
Dr. Colebatch argues that that in releasing the Lockerbie bomber Abdel Baset al-Megrahi and allowing him to return to Libya, where the Libyan government gave him a hero’s welcome despite assurances it would, and British courts ordering the release of US intelligence deemed sensitive by the Americans, Britain has infuriated the US.
And President Obama shows little interest in maintaining any special relationship.
But Dr Colebatch says the US should be “big enough to swallow the Brown government's antics and to recognise that supporting Britain in so serious a matter is of paramount importance.”
He sees no evidence of any assurance that this is the case.
....Daily Telgraph readers on Falklands readiness.....
SIR – It is questionable whether the Fleet Air Arm is ready for the renewed threat to the Falklands from Argentina (report, Issue 971).
Not only is it down to one operational mini-carrier, but also the Harrier FA2 fighters that so ably defended our fleet in the Falklands in 1982 were decommissioned in 2006 to save the £700 million cost of upgrading them for an extra six years' service until their replacements arrive. The GR7/9 versions in service are not fighters. This £700 million is less than one month's subscription to the Brussels talkfest. Priorities?
John Parfitt, Painswick, Gloucestershire
SIR – It was not, of course, aeroplanes, ships or Trident submarines that sank the Belgrano.
It was, in fact, a nuclear-powered submarine, the HMS Conqueror, which is probably in the South Atlantic now, along with others of the same type.
All the Argentines need to know is that they are there (they are not easy to detect) and that they will be used if an invasion fleet comes anywhere near the islands.
The Argentines also know that, if the need arises, it would not take several weeks to get troops and munitions to Port Stanley, where there is now an airfield that can take wide-bodied aircraft.
Before they do anything silly, they would be well advised to take odds from bookies on the likely outcome. I know where my money is.
Roger J. Arthur, Storrington, West Sussex
SIR – Sixty billion barrels of oil sounds like quite a lot. Why can't we share the development costs and the proceeds with Argentina?
The recent visit of Prince William was by any measure a great success not only for him and those core institutions, the Australian and New Zealand Crowns, but financially for Australia and New Zealand.
Despite the ungracious complaint about the visit by the republican leader, as the video below shows, the republican movement glosses over the fact that unlike a political president and vice president and similar politicians at the state and territory level we pay nothing – nothing - to the Royal Family. · ·
...extraordinary return from Royal Visit...
Even in the United Kingdom the Royal Family more than pays for itself. The monarch’s properties in the Crown Estate more than cover the funds provided by the British Government, not as salaries, but for state expenses properly incurred. This also covers the running costs of The Queen of Australia as well as providing a very handsome profit for the British government. And that government has behaved appallingly, leaving heritage buildings in a dangerous state. That ought to at least remind people never to increase the power of the politicians in a politicians’ republic.
There is another factor which trumps the predicable republican whingeing over the costs of a visit which was paid mainly by The Queen. Tourism returns for a Royal Visit are substantial – Australia gets worldwide attention at this time, and unlike tourism advertisements, it is free.
Tourism Australia spent about $100 million on tourism promotion last year, the industry earning about $25 billion from overseas tourism. Professor Noel Cox from Monarchy New Zealand points out a single full page advertisement in The Times in London is expensive – Aus$45,000.
[ Prince William in the Royal Botannic Gardens, Sydney ]
Imagine what we gained from the international media attention about the visit, and just recall the effect of the “Where the bloody hell are you?” campaign and you will understand what I mean.
The coverage by Sky News meant, along with the BBC that the visit was followed on their networks and then by others. The radio, newspaper and magazine reporting was impressive, and not only in the English speaking world.
Two videos follow from the State Visit to New Zealand. They are on the opening of the Supreme Court of New Zealand, and the speech delivered there.
...constitutional understanding in France...
The leading French weekly Point de Vue had an illustrated report which described the visit as a triumph beyond all hopes. The Royalist site Gotha de France reported that he was given an enthusiastic reception. It was interesting that they grasped immediately the constitutional position in Australia, reporting that the Prince was received by the Governor-General, “chef d'Etat de l'Australie, une monarchie constitutionnelle”, the head of state .
In the meantime the London Sun (28/1) decided to be creative. Using a photo of the Prince beside a vacant throne, the journalistic imagination created the headline: “ Wills eyes his future job.” The story began “Prince William casts a longing glance at an empty throne yesterday - looking like he was dreaming of the day he'll sit on one.”
This is fiction, not fact. Are you surprised?
[The Prince's Table in the royal Botannic Gardens Sydney , left to right: Ian Thorpe, Prince William, Premier Kristina Keneally, Jai Martinkovits, Major.Lowther-Pinkerton]
The latest possible date for a general election is Saturday, 16 April 2011, although almost everybody thinks it will be this year. But a double dissolution election cannot be granted after 11 August; the actual election would be later.
I think it unlikely that the Prime Minister will go to an early election. He will hope as, Crikey’s Bernard Keane does, that Tony Abbott has peaked. That is unlikely, but advisors will warn the government that the public prefers a government to serve close to its full term, something the Prime Minister has repeatedly affirmed.
The particular interest for constitutionalists is not so much the timing of the election. It is that the path to the election is governed by a number of constitutional provisions, and that there will no doubt be calls for a simultaneous vote on a politicians’ republic.
[ The first Double Dissolution took place on 4 June 1914, when the Governor-General approved Prime Minister Joseph Cook's request for a double dissolution of parliament. This was the first use of this vice-regal power granted by Australia's Constitution: The National Australian Archives ]
...referendum this year?...
The Prime Minister has said that if the states refuse to sign up to his health plan, “we will take this reform to the people at the next election – along with a referendum by or at the same election to give the Australian government all the power it needs to reform the health system”. (Paul Kelly, The Weekend Australian, 6-7 March 2010. At the time of writing this was not on the web)
If a referendum to increase the Commonwealth’s power with respect to hospitals is held by or with the election, there will be demands addressed to Mr. Rudd from republicans to hold a referendum or plebiscite on Australia becoming a politicians’ republic.
Seasoned political advisors will tell Mr. Rudd not to touch this.
[ Sir Ronald Munro Ferguson, Viscount Novar, Governor-General 1914-1920 ]
...the Senate and the referendum....
First, polling trends indicate a republic referendum or plebiscite will be lost. More importantly for the government, it would soak up too much media time which will be diverted from other issues. If the Senate rejects the referendum, or fails to pass it or passes it with an amendment unacceptable to the House, and three months passes, the government may try again.
If the Senate rejects it or fails to pass it or passes it with an unacceptable amendment, the Governor–General may submit the referendum to the people (Constitution, section 128). , An undecided question is whether this is part of the reserve powers, i.e., does the Governor-General make this decision in her discretion? There is good reason to suggest that the Governor-General should consider the government’s advice, but come to a decision which she considers correct.
The analogy I would suggest, is in the deadlock provisions concerning a double dissolution where the Governor-General comes to an independent decision as the Australian constitutional head of state.
....a double dissolution?....
Second, the prime Minister may advise a double dissolution, which is not a routine matter. Two referendums would complicate the situation.
In exercising the power to dissolve both Houses, the Australian Electoral Commission (AEC) says the Governor-General acts on government advice.
True, but the Governor-General is not bound to accept the advice. That was the view of the Labor Party in 1914 when Sir Ronald Munro -Ferguson granted Joseph Cook a double dissolution, to which they strongly objected. it remained their view in 1951. The other parties have always agreed that this falls within the discretionary reserve powers.
A double dissolution cannot take place if the term of the House of Representatives will expire within 6 months. This means a double dissolution can only be granted on or before 11 August 2010. (section 57)
The writs must be issued within 10 days of dissolution ( section 32) , and polling day follows between 33 and 58 days after that.
The AEC advises that while a double dissolution must be proclaimed by the Governor-General by 11 August the actual election could occur as late as 16 October 2010 (based on maximum timetables), but with the usual minimum timetables, the latest date would be 18 September 2010.
The question is how likely is the Prime Minister to want to close down the Parliament on or by 11 August and have up to two months of campaigning and perhaps losing the chance of having a referendum. On the other hand he may prefer that, particularly if he thinks he would lose the referendum.
More than one Bill may provide the basis for a double dissolution. It is possible for a government to save up (or "stockpile") double dissolution bills as ‘triggers' during a term of Parliament, in order to get them all passed at the same time.
Just because an election is called on the basis of a rejected bill or bills does not of course mean that will dominate the electoral campaign. If the trigger were, for example the rejection of the bill to means test the private health insurance rebate, this is hardly likely to be the dominant issue in the election.
...six double dissolutions.....
There have been six double dissolutions since federation and one joint sitting.
In 1914 and 1983, the government lost the election that followed the dissolution and no further action was taken on the disputed bill or bills.
In 1951 the government won the election with a majority in the Senate and so the deadlock was broken in that way.
In 1974 and 1987 the government won the election but did not have a majority in the Senate. In 1974 the six bills that had been the basis for a double dissolution were passed by the one and only joint sitting. One was subsequently found to have been invalidly put to the joint sitting.In 1987 the Hawke government decided not to proceed with the bill which triggered the double dissolution.
The double dissolution in 1975 was unusual. More than 20 double dissolution bills had been stockpiled when the Senate delayed three other money bills, including a key appropriation bill.
The Governor-General (Sir John Kerr) eventually dismissed the Prime Minister (Mr Whitlam) and asked the Leader of the Opposition (Mr Fraser) to take over as Prime Minister on condition that he would advise the Governor-General to dissolve both Houses and call an election held on 13 December 1975).
Each year, The Queen attends the Commonwealth Day celebrations in London. Since 1977, Commonwealth Day has been celebrated throughout the Commonwealth on the second Monday in March.
The Queen attends an inter-denominational service held in Westminster Abbey, followed by a reception hosted by the Commonwealth Secretary-General.
The Royal site recalls that modern communications technology allows The Queen to speak to every part of the Commonwealth through her annual Christmas and Commonwealth Day messages.
Both messages are delivered by The Queen as Head of the Commonwealth to the peoples of the Commonwealth as a whole. They are special in that they reflect Her Majesty's personal views and are not drafted on ministerial advice.
In the video below Her Majesty speaks about the role of science and technology in the Commonwealth in her annual address. Commonwealth Day was celebrated throughout the Commonwealth.
Iin Sydney, the Commonwealth Day Council arranged a major function at Parliament House involving schoolchildren. A report on this will soon be posted.
The American Commonwealth, a two volume study by James Bryce, 1st Viscount Bryce of Dechmont was published in 1888. It was the first study in which the institutions of the United States had been thoroughly discussed from the point of view of an historian and a constitutional lawyer, and it at once became a classic.
Lord Bryce was a celebrated British jurist, international lawyer, constitutional expert, historian, diplomat and politician. He was a minister of the Crown and British Ambassador to the United States. He was a friend of prime ministers and presidents
[ Robert Baden-Powell, President William Taft and James Bryce at the White House in 1912 ]
He was the author of the Bryce Report into German atrocities in Belgium published in 1915, and he later strongly condemned the Armenian Genocide in the First World War.
He served at the International Court (the Permanent Court of International Justice) at The Hague, supporting the establishment of the League of Nations, and published a major two volume study in 1921, Modern Democracies.
...Lord Bryce on Australia...
This remains a major resource in the study of comparative constitutional law and practice. In Modern Democracies, Volume II, he devotes seven chapters to Australia, which he praises for the standards and success of its system of self governance.
In the course of this he writes at page 194:
“In its practical working from year to year, the Commonwealth [of Australia] is, and each State also continues to be as a State what it was as a colony, a Crowned Republic, i.e., a community monarchical in form, but republican in its sprit and operation, and indeed more democratic than many republics are.”
[Modern Democracies is published in two volumes. These can be acquired through the Book Depositary, London, post free, at the following prices, Volume I, $42.12 and Volume II, $51.48. To order click on each volume.]
Even with the approval of all the states to the diversion of the GST, the Prime Minister’s Rudd’s hospitals plan may hit serious constitutional difficulties.
In a public interest case courageously brought in 2009 by law academic Bryan Pape, the High Court recently indicated that there are real limits to the power of the Federal Parliament to appropriate moneys ( see this column, "High Court Performing Well," 14 September, 2010)
The case related to the Tax Bonus for Working Australians Bill, 2009 which was to provide, at a cost of $8.2 billion, financial support to about 8.7 million taxpayers. This support was to take the form of one-off payments ranging from $950 to $300 according to the taxable income of the recipients in the year ended 30 June 2008. The stated purpose was to “immediately support jobs and strengthen the Australian economy during a severe global recession."
....appropriations power....
[ Just how was this German hospital funded in 1682 without a GST? ]
While the court upheld this, there was a discussion concerning the appropriations power. This is to be found in section 81 of the Constitution which provides:
“All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution.”
In a leading case in 1975, the AAP case, there was a challenge to a Whitlam government plan to transfer moneys to regional councils for social welfare payments which the Commonwealth itself could not make under the existing social services powers in the Constitution.
....”purposes of the Commonwealth”....
In upholding the plan by a 4:3 majority, the Court was divided as to the meaning of the crucial words “purposes of the Commonwealth.”
Three judges thought this was to be determined by Parliament. Three judges thought the purposes were those set out in the constitution and could be reviewed by the court. In the Pape case, the view emerged that the power to allocate money to say, regional hospital boards (rather than the states) is restricted to the purposes of the Commonwealth ( section 81).
Put simply, deciding what is a purpose of the Commonwealth is no longer a matter for the politicians. .In seeking to bypass making grants to the states (section 96) the conditions for which are unlimited, the Commonwealth could leave itself open to a serious constitutional challenge. The Commonwealth could avoid this by making payments to the states on condition that they then paid the money as the Commonwealth directed. But this would require that the states co-operate.
[I received the following important memorandum from the prominent journalist and author, Mr. Peter FitzSimons. As it was in the Sydney based Sunday newspaper, The Sun Herald, 7 march 2010, so did well over a million people according to the excellent Roy Morgan readership survey . Mr. FitzSimons conceived the Mate for a Head of State campaign, which frankly worried us, particularly the centrepiece which is described below.
That campaign demonstrated once again how the Australian head of state issue was, is and will always be central to the republican case.]
Memo Professor David Flint,
I’ve gone deep undercover on this one but I think I’ve pulled it off.
On Tuesday I had a meeting with Ray Martin (see this column “Ray Martin and Malcolm Turnbull: Grow Up!” 2 February 2010) in a Neutral Bay cafe on the subject of what he sees as the urgent need to change the Australian flag and I think I have made him believe I am on his side!
This is amazing when truly, as you know, I can think of no greater pleasure in life than wrapping myself in the Australian flag, with the massive Union Jack uppermost, while I grovel before English royalty as they tickle my tummy....
and sorry, I digress. Anyway, things are moving. Can’t say too much right now but you can count on me to report back.
Yours in grovelling to all things English,
Peter FitzSimons
[ Bondi Beach: the high point of the mate for head of state campaign ]
...mate for a head of state high point...
The high point of the mate for head of State campaign was to be a series of “sausage sizzles” on the Sunday before Australia Day, 22 January 2006. And what publicity they had had in the media! It must have been worth millions.
They had Peter FitzSimons and other media celebrities on side with substantial media promotion. Some reports were balanced, for example, 2GB’s Jim Ball and Channel 7’s David Koch, both of whom ran stories where the other side is allowed to speak.
So you would think with all that , in a city of over 4 million people and a state of about 7 million people, a few interested members of the public would turn up for the main feature of the day, the widely advertised “Beachside Brunch & Sausage Sizzle” between 10:30am-12:30pm in the Biddigal Reserve, a pleasant grassy rise just a hop step and jump to North Bondi Beach?
The republican movement’s big guns duly arrived for their sizzle, commandeering the only public barbecues at the end of the beach. We wonder whether Waverley Council, still mired in the controversies over its ban on our Australian flag flying over the Bondi Pavilion, and charging lifesavers to park their cars, actually consented to moving out ordinary Australians for the purposes of this political campaign?
So who turned up? An observer told us forty six, and a journalist who interviewed me said “about fifty.” But that included the republican big guns and the media!
Later, when my description of the fiasco at Bondi Beach was published in The Australian, these figures were challenged by an extremely irate and prominent republican.
After some exchanges, when I asked him how many actually came, he insisted there were 300. But he was referring to the number of sausages, not the number of people. (And in any event we do not know whether the sausages were republican or monarchists.)And the public?
Hardly anyone, it seems, notwithstanding the massive publicity. Not even for a free sausage!
And in the meantime, crowds were queuing up a few yards away for a sausage sizzle at the North Bondi Surf Club. But these non-republican sausages weren’t free- they had to pay $1.30 for one sausage. But this was for a good cause, and Australians are interested in good causes.
Rank and file Australians are obviously not at all interested in a republic. Not at all. As we said, who will they blame for this fiasco?
