Showing posts with label Australian Consitution. Show all posts
Showing posts with label Australian Consitution. Show all posts

Sunday, 23 July 2017

Aboriginal Australia seeks more than the symbolic recognition of first peoples status on offer from the Liberal-Nationals Federal Government

“The Australian story began long before the arrival of the First Fleet on 26 January 1788. We Australians all know this. We have always known this.”


The Council recommends:
  1. That a referendum be held to provide in the Australian Constitution for a representative body that gives Aboriginal and Torres Strait Islander First Nations a Voice to the Commonwealth Parliament. One of the specific functions of such a body, to be set out in legislation outside the Constitution, should include the function of monitoring the use of the heads of power in section 51 (xxvi) and section 122. The body will recognise the status of Aboriginal and Torres Strait Islander peoples as the first peoples of Australia.
It will be for the Parliament to consider what further definition is required before the proposal is in a form appropriate to be put to a referendum. In that respect, the Council draws attention to the Guiding Principles that emerged from the National Constitutional Convention at Uluru on 23–26 May 2017 and advises that the support of Aboriginal and Torres Strait Islander peoples, in terms of both process and outcome, will be necessary for the success of a referendum.

In consequence of the First Nations Regional Dialogues, the Council is of the view that the only option for a referendum proposal that accords with the wishes of Aboriginal and Torres Strait Islander peoples is that which has been described as providing, in the Constitution, for a Voice to Parliament.

In principle, the establishment by the Constitution of a body to be a Voice for First Peoples, with the structure and functions of the body to be defined by Parliament, may be seen as an appropriate form of recognition, of both substantive and symbolic value, of the unique place of Aboriginal and Torres Strait Islander peoples in Australian history and in contemporary Australian society.

The Council recommends this option, understanding that finalizing a proposal will involve further consultation, including steps of the kind envisaged in the Guiding Principles adopted at the Uluru Convention.

The Council further recommends:
  1. That an extra-constitutional Declaration of Recognition be enacted by legislation passed by all Australian Parliaments, ideally on the same day, to articulate a symbolic statement of recognition to unify Australians.
A Declaration of Recognition should be developed, containing inspiring and unifying words articulating Australia’s shared history, heritage and aspirations. The Declaration should bring together the three parts of our Australian story: our ancient First Peoples’ heritage and culture, our British institutions, and our multicultural unity. It should be legislated by all Australian Parliaments, on the same day, either in the lead up to or on the same day as the referendum establishing the First Peoples’ Voice to Parliament, as an expression of national unity and reconciliation.

In addition, the Council reports that there are two matters of great importance to Aboriginal and Torres Strait Islander peoples, as articulated in the Uluru Statement from the Heart, that can be addressed outside the Constitution. The Uluru Statement called for the establishment of a Makarrata Commission with the function of supervising agreement-making and facilitating a process of local and regional truth telling. The Council recognises that this is a legislative initiative for Aboriginal and Torres Strait Islander peoples to pursue with government. The Council is not in a position to make a specific recommendation on this because it does not fall within our terms of reference. However, we draw attention to this proposal and note that various state governments are engaged in agreement-making.

Pat Anderson AO
Mark Leibler AC
Megan Davis
Andrew Demetriou
Natasha Stott Despoja AM
Murray Gleeson AC
Tanya Hosch
Kristina Keneally
Jane McAloon
Noel Pearson
Michael Rose AM
Amanda Vanstone
Dalassa Yorkston
Galarrwuy Yunupingu AM

The Australian, 18 July 2017:

Two indigenous Labor MPs have expressed doubts about the Referendum Council’s proposal for indigenous constitutional recognition, saying the councils’ final report, delivered yesterday, does not provide a clear line of sight to constitutional change.

Malcolm Turnbull yesterday cautiously backed what he called “a very big new idea” put forward by the Referendum Council he and Bill Shorten appointed 18 months ago, namely their sole recommendation of a special indigenous advisory body to the parliament.

But WA Labor Senator Pat Dodson said the recommendation had surprised some people, while NSW Labor MP Linda Burney said the sole recommendation was “limiting”, and most Australians would be “shocked” to learn that it has ruled out addressing race powers in the constitution.

Prime Minister Turnbull yesterday promised to consider the Referendum Council’s proposal, but indicated he was cautious about putting it to a national vote.

“We do not want to embark in some sort of exercise of heroic failure. I have some experience in trying to change the constitution and know better than most how hard it is.”

Senator Dodson said he wasn’t sure that progress is being made on the recognition of indigenous Australians.

“Unfortunately I think we’re going in circles a bit at the moment,” he told 7.30.

“I don’t think we’ve got a clear line of sight as to where any constitutional change whether it’s going to take place or not. Certainly on our side of politics we’re open to that. I’m not sure whether the government side is quite open as we are to the proposition.”

UNSW Dean of Law George Williams said a strong process would be needed to convince the Australian electorate that the Referendum Council’s proposal is worth voting for.

The Guardian, 18 July 2017:

These powers, s.51xxvi, were inserted into the constitution as part of the 1967 referendum and give the commonwealth power to make laws for “the people of any race for whom it is deemed necessary to make special laws”.

That allowed for the construction of laws such as native title and Aboriginal heritage laws but it also allowed the federal government to make discriminatory laws.
Burney said while the idea of an Indigenous voice to parliament was huge and important, it was limiting to consider it as the only option.

“I think that is very limiting,” Burney told the ABC. “I think that is more of a minimal approach when ... they don’t want us to address the issues of the race powers and recognition of first peoples in the constitution.

“I think the Australian community would be shocked to think that we are not going to deal with the archaic race powers in the constitution but that is what the Referendum Council is instructing the parliament.”

Burney underlined that it was unclear what the Indigenous voice would do, its structure or how people would be elected. 

She said the Coalition and Labor needed to consider the report. Labor’s Indigenous caucus meets on Wednesday. She warned that any idea needed to be passed in the parliament and the idea of enshrining a national body would be a “challenge for some people”.

Sky News, 20 July 2017:

Indigenous Liberal MP Ken Wyatt has expressed disappointment at the decision to abandon the push for constitutional recognition, saying the timeline for a referendum has now been pushed back to beyond this term of government.


(xxvi)  the people of any race , other than the aboriginal race in any State, for whom it is deemed necessary to make special laws;

Government of territories
                   The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

Friday, 26 May 2017


We, gathered at the 2017 National Constitutional Convention, coming from all points of the southern sky, make this statement from the heart:
Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs. This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from ‘time immemorial’, and according to science more than 60,000 years ago.
This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.
How could it be otherwise? That peoples possessed a land for sixty millennia and this sacred link disappears from world history in merely the last two hundred years?
With substantive constitutional change and structural reform, we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood.
Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future.
These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.
We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.
We call for the establishment of a First Nations Voice enshrined in the Constitution.
Makarrata is the culmination of our agenda: the coming together after a struggle. It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination.
We seek a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history.
In 1967 we were counted, in 2017 we seek to be heard. We leave base camp and start our trek across this vast country. We invite you to walk with us in a movement of the Australian people for a better future.
26 May 2017

Tuesday, 2 May 2017


BROWN & ANOR versus THE STATE OF TASMANIA, High Court of Australia, Canberra on 2 May 2017 at 10.15 am before the full court:

Date Special Case referred to Full Court: 13 December 2016

The issue in this proceeding is whether the Workplace (Protection from Protesters Act) 2014 (Tas) (‘the Act’), in whole or in part, contravenes the implied freedom of political communication in the Commonwealth Constitution.

The plaintiffs were each arrested and charged, purportedly under the Act, in early 2016 as a result of their onsite political protest against the proposed logging of the Lapoinya Forest in Tasmania. The respective criminal proceedings against them were abandoned by the police after the commencement of this proceeding. The plaintiffs contend that the Act is either wholly invalid or, at the least, is invalid in so far as it applies to forestry operations on forestry land as defined in s 3 of the Act.

The Act allows police officers to prevent the commencement or continuation of an onsite political protest that they reasonably believe is preventing, hindering or obstructing or is about to prevent, hinder or obstruct a "business activity" at any "business premises" or "business access area" as defined in s 3 of the Act, anywhere in Tasmania. The key provisions empower police officers to prevent the commencement or continuation of onsite political protests by directing the protesters to leave and stay away from business premises and business access areas for up to three months under pain of arrest and of criminal penalties if they do not do so.

The plaintiffs contend that ss 6 and 7 of the Act target and single out for prevention and punishment onsite political protest and protesters without any broader purpose of preserving, enhancing or protecting political communication. Further, they contend that no reasonable provision has been made in the Act to preserve or protect political communication.

The defendant contends that the Act protects (amongst other things) business activity lawfully carried out on land in the lawful possession of a business operator, and that the plaintiffs are seeking to prevent, hinder or obstruct activity of that nature. They submit that the Act does not restrict protest activity on land other than business premises or business access areas; it has a narrow operation and effect; it is compatible with the freedom and is in any event reasonably and appropriately adapted to the fulfilment of a legitimate purpose.

On 13 December 2016 Gordon J referred the Special Case for consideration by the Full Court. Notices of Constitutional Matter have been served. The Attorneys-General for the Commonwealth, Victoria, New South Wales, Queensland, and South Australia have filed Notices of Intervention. The Human Rights Law Centre has been granted leave to appear as amicus curiae, limited to submissions in writing.

The question in the Special Case is:
• Is the Workplace (Protection from Protesters) Act 2014 (Tas), either in its entirety or in its operation in respect of forestry land, invalid because it impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution?

Monday, 3 November 2014

Tony Abbott's strange view of Australian history strikes again

The Abbott Government is now turning its ideologically blinkered eye towards ‘reforming’ the federation of states which underpins the Commonwealth of Australia.

Then we had no national government. Then, as we’ve been reminded earlier this evening, we had six colonies, each of them with a prime minister.....
A hundred years ago the states were clearly responsible for funding and operating public schools, public hospitals, public transport, roads, police, housing and planning. Under our constitution, the states are still legally responsible for them...
[Prime Minister Tony Abbott, Sir Henry Parkes Commemorative Dinner speech, 25 October 2014]

Oh dear, Australia had six prime ministers prior to Federation? Under the Australian Constitution the states are clearly responsible for funding public hospitals?

No, Mr. Abbott. The six colonies had six premiers, which headed governments with more limited power than a post-1901 federal government headed by a prime minister, because they were legally obliged to take direction from the British government of the day and a federal government is not so obliged.

As for who is responsible for providing public hospital services, the constitution clearly states that Commonwealth has the power to make laws for the provision of pharmaceutical, 
sickness and hospital benefits, medical and dental services and it was under Part V – Powers of the Parliament that the federal parliament created universal health care including inpatient/outpatient free care in public hospitals. So the federal government has accepted that it is responsible in large measure for funding public hospitals and clearly in broad control of health service delivery.

Thankfully it will take a majority of people in a majority of states and a majority of people across the nation as a whole vote 'yes' to whatever question our historically illiterate prime minister decides to put to the electorate in any national referendum seeking to dismantle the federation model in the Australian Constitution.

With his tin ear, I cannot see him convincing the average voter that 'reforming' the constitution to further cost-shift towards the states is a good idea.

Friday, 10 October 2014

It is time to be afraid, very afraid, in Abbott's Australia

There are realistic and credible circumstances in which it may be necessary to conduct coercive questioning of a person for the purposes of gathering intelligence about a terrorism offence….
The existence of other, less intrusive methods of obtaining the intelligence will continue to be a relevant but non-determinative consideration in decisions made under subsection 34D(4).
[Australian Security & Intelligence Organisation (ASIO), October 2014, submission to to Parliamentary Joint Committee on Intelligence and Security Inquiry into the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014]

ASIO detention powers should be repealed not extended. Detaining non-suspects for up to seven days, virtually incommunicado and without effective review at the time, removing the right to silence on penalty of imprisonment, and criminalizing any disclosure of detention, is excessive and disproportionate in view of existing powers, the level of terrorist threat, and the absence of any declared public emergency justifying derogation from protected human rights. The regime violates the freedom from arbitrary or unlawful detention under Article 9(1) of the ICCPR and the right to effective judicial review of detention under Article 9(4) of the ICCPR.
[Ben Saul, Professor of International Law (Syd Uni), 1 October 2014, submission to Parliamentary Joint Committee on Intelligence and Security Inquiry into the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014]

If you reveal it, you’re guilty. If it goes to court the question is whether a journalist revealed information, not whether they’re justified in revealing that information. 
[Professor George Williams, Director of Public Law, University of NSW, Statement to Media Watch re National Security Amendment Bill (No 1) 2014, 1st October, 2014]

Australia now stood alone as the only country in the world with the types of control order and preventative detention order the government wanted to keep, after Britain substantially amended its regime.
[Professor George Williams, The Guardian, 3 October 2014]

But the key provision is section 35P, which bans disclosure of any information that relates to a SPECIAL Intelligence Operation.
This ban applies to any person.
So journalists, whistleblowers, bloggers and even tweeters could all end up behind bars. 
[Paul Barry, ABC Media Watch, 6 October 2014, re National Security Amendment Bill (No 1) 2014]

[North Coast Voices, preview of An Untold Story insert which will be displayed every time this blog judges that Abbott Government laws make it unsafe to mention or debate an issue of importance]

Monday, 12 August 2013

Australian Federal Election 2013: the howling begins over caretaker period conventions

ABC News 9 August 2013:

The Opposition has lashed out at the Government's decision to continue an ad blitz about its asylum seeker policy, accusing it of trashing the caretaker conventions.
The ad campaign warns asylum seekers they no longer have the option of being settled in Australia if they arrive by boat.
Special Minister of State Mark Dreyfus has given approval for the ads to continue to run in Australia and overseas, despite the election campaign being in full swing…
Shadow attorney-general George Brandis says the Government has broken the "unwritten rules of the Constitution", and committed an "unprecedented and flagrant breach" of the caretaker convention.
He says Opposition Leader Tony Abbott wrote to Mr Dreyfus saying that while the Coalition agreed to most of the proposals, it did not agree to any onshore ads during the election campaign….
Mr Burke says there is a precedent for government advertising to continue during election campaigns.
As an example, he cited a 2004 ad campaign designed to encourage Australians to report signs of terrorism following a bombing near the Australian Embassy in Jakarta.
"On that occasion under the Howard government, the leader of the opposition put forward suggestions. Some of those suggestions were taken up, some were not and the campaign went ahead," Mr Burke said….
Opposition immigration spokesman Scott Morrison says the asylum seeker campaign is a "shameless and desperate" grab for votes….

According to Rupert Murdoch's Opposition Leader Tony Abbott's formal response ran thus:

In a letter to the Prime Minister, Mr Abbott made clear he would not give the green light to such a campaign.
"We do not support the continuation of a multimillion-dollar taxpayer-funded campaign aimed at Australian voters, rather than people residing overseas," the Opposition leader wrote.
"If the government wants to stop people getting on boats overseas, then it should advertise overseas. But advertising in Australia, to Australians, in an election campaign is nothing more than a blatant misuse of taxpayer money for political purposes," he said.
"All asylum seeker advertising for Australian audiences and paid for by the taxpayer is opposed and under the caretaker conventions must cease immediately."

By 10 August, Murdoch's The Australian was reporting:

Opposition legal affairs spokesman George Brandis said the caretaker conventions were "part of the Constitution" and "it is unlawful to violate them".

So what are Scott Morrison and George Brandis howling about?

The general definition of the 'caretaker period' is a period which occurs when the House of Representatives expires or is dissolved ahead of a general election or there is a simultaneous dissolution of both the Senate and House ahead of a general election - a double dissolution. The period ends when the incumbent Government has been re‑elected or a new Government has been sworn in.

Practical implementation of this caretaker period is set out as a series of conventions which officially commence when election writs are issuedThey are neither strict rules nor law but guidelines and, are not directly enforceable by the courts.

Such conventions do not form part of the Commonwealth of Australia Constitution

6.1 Advertising and Information Campaigns

6.1.1 The Department of Finance and Deregulation and PM&C reviews all advertising campaigns at the beginning of the caretaker period and recommends whether those campaigns should continue or be deferred. Bipartisan agreement is sought for campaigns that are to continue. Campaigns that highlight the role of particular Ministers or address issues that are a matter of contention between the parties are normally discontinued. Campaigns that are of an operational nature, such as defence force recruiting campaigns or public health campaigns, usually continue.

Tuesday, 10 July 2012

Tony Abbot under the influence of one of his many political delusions

ABC TV Lateline  6 July 2012:

TONY ABBOTT: Admiral Barrie, along with all other serving members of the armed forces, understands that the armed forces are under the direction of the government of the day. That's what civil control of the military means.

Oh dear, here is Opposition Leader Tony Abbott displaying his ignorance concerning the constitutional implications of the oath set out below.

Because when push comes to shove over turning back the boats, it is convention not law which has naval vessels on operational duty strictly obeying policy directions from the government of the day.

Mr. Abbott would also do well to remember that the Australian Constitution places the Queen’s representative, the Governor-General, as Commander-in Chief of the Armed Forces, not the Prime Minister or any other politician.

Something both Whitlam and Fraser had to come to grips with during their epic battle for control of the Australian Parliament.

Oath or affirmation for enlistment of member
(regulation 24)
I, (insert full name of person) swear that I will well and truly serve Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law, as a member of the
(insert Australian Navy , Australian Army , or Australian Air Force )
for the period of (number of years) , and any extensions of that period,
until retiring age, )
and that I will resist her enemies and faithfully discharge my duty according to law.
(person's signature)
Taken and subscribed before me on (insert date)
(insert signature, name and title of the person before whom the oath is taken and subscribed)
Note The oath may be taken before an officer of the Navy, Army or Air Force, a Warrant Officer of the Navy or Air Force, a Warrant Officer Class 1 of the Army, a Justice of the Peace, a Commissioner for Affidavits or a Commissioner for Declarations.
I, (insert full name of person) promise that I will well and truly serve Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law, as a member of the
(insert Australian Navy , Australian Army , or Australian Air Force )
for the period of (number of years) , and any extensions of that period,
until retiring age, )
and that I will resist Her enemies and faithfully discharge my duty according to law.
(person's signature)
Made and subscribed before me on (insert date)
(insert signature, name and title of the person before whom the affirmation is made and subscribed)
Note The affirmation may be made before an officer of the Navy, Army or Air Force, a Warrant Officer of the Navy or Air Force, a Warrant Officer Class 1 of the Army, a Justice of the Peace, a Commissioner for Affidavits or a Commissioner for Declarations.