Queensland
Constitutional Review
Commission

First Submission ~ see also Submission 26 and Submission 31

Graham L. Paterson
86 Edgewater Village
David Low Way, Bli. Bli.
Queensland. 4560
7th. Sept. 1999
Phone 07 545 00080

Queensland Constitutional Review Commission,
P.O. Box l 85
Albert Street,
Brisbane.
Qld. 4002

Dear Sir,

In response to the proposed consolidation of the Queensland Constitution I am sending you this Submission in line with your invitation in the Courier Mail of the 31st July 1999.

My submission is based on what I believe to be the essential philosophy of any Democratic Constitution and, consequently, will probably be seen to be at odds with the Commission's approach.

There does not appear to be any real attempt to define the underlying philosophy in any of the issue papers. This is in spite of the considerable historic discussion and numerous references to supposed Constitutional "experts".

The fact that there seems to be little agreement between these "experts" and bearing in mind the period, and culture, in which many of the comments are made simply emphasises the lack of understanding for a sound philosophical foundation.

I would appreciate your comments on this issue and especially that of ownership of the Constitution.

To me this question of ownership is crucial to any rational and common discussion on the aims and format of how the Constitution is written.

Thank you for this opportunity to comment on the Constitution which I believe should belong to every citizen of Queensland and not just the Government..

Yours sincerely

Graham L. Paterson

28th. August 1999
- by
GRAHAM L. PATERSON

86 Edgewater Village
David Low Way.
Bli. Bli.
Queensland 4560.
Version 4 519199 Phone 07 54500080

CONTENTS

1. INTRODUCTION  - Page 3
2. PHILOSOPHY  - Page 5
3. OUR PRESENT CONSTITUTION  -  Page 10
4. PEOPLES' RIGHTS  -  Page13
5. PREAMBLE  - Page 17
6. GOOD GOVERNMENT  -  Page 24
7. SUPREMACY OF PARLIAMENT  -  Page 27
8. SEPARATION OF POWER  -  Page 30
9. CONSTITUTIONAL REVIEW   -  Page 33
10. THE GOVERNOR'S ROLE  - Page 36
11. THE JUDICIARY  -  Page 40
12. CHRISTIAN FOUNDATIONS  -  Page 43
13. REFORM FOR A L1VING CONSTITUTION  -  Page 45

This submission is made to the Queensland Constitutional Review Commission in response to the Advertisement in the Courier Mail dated 31st July 1999.
Having read the literature currently on issue I find an absolute silence on the foundation Philosophy upon which all arguments should be based.
 

Certain questions need to be answered - among these are
1. Who 'owns' the Constitution - the 'people' or the Government? ( for 'Government' read 'the political party in 'power' at any given time')
2. What is the source of all 'political power' - is it the 'people' or is it the Government?
3. What is 'the Governments' primary responsibility in respect to all the people of the State over whom it is supposed to govern?
4. Can any Government ever provide a guarantee of provisions laid down in Legislation. The only honest answer is "no they can't".
5. Where are the checks and balances that ought to be integral to a democratic Parliamentary system?
6. It becomes essential, therefore, to retain the principle of Referendum in relation to the Constitution. This is absolutely crucial.

To exclude the details of Chapter 10, referring to the manner in which the proposed consolidated Constitution can be amended, tends to be a very cynical and underhand exercise on the part of this Commission. This is a crucial element in the drafting, of any Constitution.

The fact that the Government is holding a Referendum in September to try and eliminate the need for Referendums shows an appalling contempt for the people of Queensland.
It is akin to the motivation in which the politicians of the day brought about the demise of the Upper House in Queensland.

To use the common expression "we might as well give Dracula the key to the Blood Bank" if this referendum is successful.
My premise is the Constitution of Queensland ought belong to the 'people' of Queensland - it should not be considered as being the property of the 'Government' and it certainly does not belong to any political party just because they happen to be in power at any particular time.
In my view, all changes to the Constitution should originate from the 'people' - changes should not originate from the Government who, as history has shown, only propose amendments when they have something to gain from the change.
All these issues relate directly to the Philosophy which ought to form the basis for any discussion on the Constitution.
Until such time as there is some sort of general agreement as to the Philosophy that must underpin the Constitution there will be little hope of ever reaching any reliable consensus.
The following notes set out some of the ideas and issues that should be addressed well before any meaningful consideration can be given to the Constitution itself.
 

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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 that 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.
 

It is disappointing that the Review Commission does not seem to grasp the, fundamental importance of this issue and treats it almost as an afterthought.
"Should it be put in the Preamble " - (if there is one) knowing fullwell that the High Court of Australia already treats the Federal Constitution's Preamble with disdain. Or "should we let sleeping dogs lie andcontinue to hide it in some obscure phrase in a legislative Act which the future Governments canchange whenever they want?
This seems to be the approach of this Review Commission and tends to show a rather disquieting lack of understanding of the proper foundations upon which this, and any Democratic Constitution must be based.
If we are going to discuss the Constitution we must make the 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 Society own the Constitution and define in it what 'powers' (i.e. control of their affairs) 'they' wish to delegate to 'their' elected or 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 Supreme Court of the State in that they must not have the right to infringe the fundamental philosophy of the Constitution.
In spite of this Commission's restricted Terms of Reference I do not believe that the recognition of the people's Rights can be divorced from the discussion concerning the Rule of Law.

The Constitution should enshrine the basic fundamental Rights inherent from the entrenched laws provided from our inheritance of the principles of British Common Law. The Constitution must specifically guarantee this protection to each and every citizen of the State and must forever preclude any Government from tampering with these Rights by way of Legislation.
 

I believe the entrenched laws covered by our heritage of the Great Charters of British history and the bulk of Common Law principles developed over the centuries will adequately cover the 'rights' of the citizens of Queensland, provided, this heritage is recognised and acknowledged in the Constitution.
I do not believe it is necessary to develop a separate Bill of Rights if the above provisions are met.
If the 'people' so wish they may define which Rights they are prepared to compromise, but 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.

 All people of our State, and 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' hope '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 it's Society and no Nation of people can legitimately have an interest in a Government based on any other foundation.
 

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 Society wish to secure their Rights as Individuals and create a Constitution for this specific purpose.
 

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THE PRESENT CONSTITUTION
The present Queensland Constitution is apparently recognised as being incompatible with our modern Democratic Society. Quite obviously it has developed over the years without any real sense of coordinated approach and certainly with very little concept of modern democratic principles.
 To a large extent the Constitution is founded on the Colonial and Imperialistic concepts that the Government is the fountainhead of political "power". This concept of "power" relates directly to the Government's control over the 'people' and, unfortunately, this philosophy is clearly retained in the current attempt to consolidate the, various Acts that make up the Queensland Constitution.
This is evidenced from the Terms of Reference of this Commission when the Government sets the Agenda and specifically excludes certain major issues over which it deems, with a degree of arrogance, to have exclusive control.
If we are going to talk about Constitutional Reform then the issues of the Citizens Rights and the immoral origins of our Queensland unicameral Parliament must be on the agenda.
Whilst it is a worthwhile and sensible action to consolidate the several Acts into on better understood document there does not seem to be any attempt to address the imperialistic, philosophy that forms the basis of the respective Acts.
 

It will be a sad day if this opportunity is lost to clearly spell out the fundamental principles upon which our Society is based.
The Queensland Constitution, in effect, proclaims the philosophy that any political party in  'power' at any given time controls the 'people' and has the right to legislate as they see fit.
The only real and effective limitation on how far any party is prepared to go is their perception of the risks involved concerning losing 'office' at the next election.
This is not a good basis for decision making nor a logical basis for pursuing the implementation of so-called "good Goverment".
Nowhere in the present Constitutional Act does it declare that the 'people' are the fountainhead of all Authority in relation to any Government of the day.  Nowhere in the present Constitutional Acts 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' State, whether 'we' like it or not, is an expression of the basic philosophy by which 'we', as a Society, wish to live 'our' lies.
Until such time that the 'people' recognise 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 any increase in already excessive power which Governments have over our lives.
 

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 question therefore is, "how do 'we', the 'people', protect 'ourselves' from changes to the Constitution when these changes are engineered and dictated largely by the political party of the day?"
For far too long the Constitution has been a 'play thing' of the Politicians and Lawyers to use, and manipulate, for their own vested interests. It needs to become a "peoples Constitution".

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PEOPLES' RIGHT
While I realise and understand that the issue of "Rights" are not to be included as part of this Commissions duties I believe that it is important to clarify the relationship of "Rights" to the Constitution.
 

Much has been said about peoples' Rights but at the end of the day 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

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

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 3 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

Most of 'our' Rights are covered in 'our' inheritance of the British Common Law judicial system. Provided the' question of 'Rights' is properly addressed in the Constitution, and related to this heritage, then there is little real need for a separate 'Bill of Rights' as the Constitution should effectively constrain 'Governments' from encroaching too far.

The fallacy of trying to write a separate 'Bill of Rights' is amply illustrated by the 1992 Queensland Government's EARC report. After 432 pages of what turns out to be, the promotion of 'vested' interests, EARC came up with a 19 page draft for a 'Bill of Rights'.
This is then followed by a 37 page "Explanatory Memorandum" in a furtive effort to explain what the initial 'Bill' really means.
What is unfortunately, totally missing from this exercise is any attempt to spell out the responsibilities that go with any claim for 'Rights'. The other aspect that is also totally ignored is that the vast majority of the claimed 'Rights' come at a cost.
The 'Bill' omits to explain why certain people in  the Society should be held responsible for providing so many of the claimed 'Rights' just to satisfy the demands of other groups who seek to gain a special advantage.
 

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 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 fantastic example of the Government properly administering their responsibility in respect to the 'peoples'' ownership of 'their' power to create credit. Unfortunately, the States of the Commonwealth at the time, were completely unable to grasp the reality of the concepts behind the formation of a "people's" Bank and eventually caved into the threats and demands of the private and International Bankers.
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.
 

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 stock-pile 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.

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PREAMBLE
In essence the Preamble of the Constitution should contain a Statement of the Beliefs that represent the foundation of 'our' Society.
These founding beliefs should form the basic philosophy which, the majority of people of the State, accept as the basis for living together in a Society. If the Constitution does not attempt to define this philosophy then it will fail to providethe necessary protection for its' Citizens from the misuse of delegated 'powers'. One of the first issues that needs to be faced in any discussion on Government and politics is the definition of political, or Government, 'power'. What this always comes down to on the 'bottom line', no matter how much Politicians try to avoid, or distort, the question, is simply, 'control of people
 

This is why 'our' Constitution must contain the basic philosophic principles that will provide the guidelines to limit the use of Government `powers' through the Political process.
The present Constitution gravely lacks this philosophic content necessary for the protection of the 'people' of Queensland.
What is important here is to recognise, exactly, the origin of this 'power' referred to in the Constitution.
 

Even with the advent of self governing Colonies this same philosophy was earned over to the newly formed Parliaments.
There was no universal franchise in those days and, basically, only property owners were eligible to vote.
The other factor that reflected on 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 back-ground, coupled with the traditional class outlook imported from their English heritage, that fostered the view of the supremacy of Parliament in terms of the ownership of 'power'.
 

There is absolutely no doubt that the earlier authors of the various Constitutional Legislative Acts fully understood the implications of 'Conventions' in the Westminster system of Parliament and Government.
By choosing not to include these in the development of the Constitution documents they have delivered a system that bears very little relationship to the way Parliament and the Government actually operates.
On top of that, all our earlier politicians assiduously avoided any direct references to the 'rights' of people and to the inherited values contained in the huge body of history which goes to make up our Common Law heritage.

There is a supposed implication of this traditional heritage through reference to the Queen but, it is only there by implication - that this implication is, supposedly, without foundation was declared by none other than Queensland's former Premier in 1905, the then Chief Justice of the High Court of Australia, Sir Samuel Griffith, when he stated that

"The contention that a law of the Commonwealth is invalid because it is not in conformity
with the Magna Carta is not one for serious refutation"

The Magna Carta is one of the fundamental documents of our Common Law heritage which has been built up over the centuries from 1215 right through to 1892.
To deny the relevancy of this document is to deny the relevancy of all the other Great Charters of our history including the 1688 'Bill of Rights'.
To me this is a very clear indictment of the philosophical attitudes of the earlier authors of the Queensland Constitution and, unfortunately, most of the present day politicians there is virtually no concept of the 'people' being the rightful owners of all political power - to these politicians 'power' was, and is, vested in the Government and it is the Government's responsibility to control people in what the Government perceives to be the best interests of the State.
Unfortunately for the 'people', in modern day parlance, 'the best interests of the State' is now synonymous with 'the best interests of the Party!
The Preamble needs to clearly places the ownership of the Constitution in the hands of the 'people' where it should be.

Secondly the Preamble must clearly emphasise the fact that all 'Rights' are the property of 'the People' and thus can never be claimed by any Government as a possession which they have any authority to confer, or deny, at whim.

On the issue of 'Rights', the Preamble can identify the fact that, in the interests of Society, it is prudent for 'the People' to delegate the administering of certain of these 'Rights', to the elected Parliament but only in accordance with the provisions set out in the Constitution.
 

The Preamble for the Queensland Constitution must also confirm the ongoing relevance of 'our' British Common Law heritage and the Great Charters of British history that have contributed to the development of our freedoms over the centuries.

These Charters, and the development of 'our' Common Law heritage, stem directly from the fundamental Christian background of the English people. 'We' have these protections today only though 'the peoples' belief in the Christian religion.
This Common Law system represents the best legal system yet devised by people in their efforts to achieve Justice for all. It is a dynamic system that will continue to evolve, and improve, by adding to the inherited protections, rights, freedoms and obligations already included m the overall system.
It will not improve if Parliaments are permitted to tamper with the protections won so arduously over the Centuries.
This is why the Preamble must state that these existing Common Law values are 'inviolate' but, by so stating, this should not prevent any Parliament from improving, or adding to 'our' protections, as will become necessary, in 'our', ever changing, future environment.

The other important thing that the Preamble should do is to recognise the Parliamentary system that we have in place by referring directly to the Premier and the `real' makeup and authority of the Executive Government system .
Another point that ought to be made clear is that the three 'arms' of Government, namely, the Public Service, the Police Service and the Judiciary must all be maintained as 'independent' non-political entities dedicated to 'good', effective implementation of Government policy and Law.
A suggestion for the type of wording that is appropriate for a proper people's Constitution is as follows -
We the people of the State of Queensland which is hereby constituted under the Constitution of Queensland Bill 1999 have agreed to adopt this amended Constitution governing the State Parliament, the Government and all the Courts of Queensland in accordance with the beliefs 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.
            WEhold to the belief that all Queenslanders, including the descendants of the original Aborigine inhabitants, are created equal under the rule of Law, that we are endowed by our Creator with certain inalienable rights, these include the right to life, liberty and the pursuit of happiness.
AllRights are forever ordained as the possession of the people but may, from time to time be delegated in the interests of our society and the State of Queensland.
            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.
            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 State of Queensland shall have the right to deny, or rescind the inherited rights, freedoms and obligations of any citizen as provided by our Common Law heritage.
            WE,the people of Queensland, relying on the blessing of Almighty God, hereby declare that we are a sovereign independent State and part of the sovereign and independent Nation of the Commonwealth of Australia.
            WE,the people of Queensland, further declare that our Parliamentary system shall comprise of a State Governor and a Legislative Assembly which shall be formed in the manner set down in this Constitution.
            We also declare that the people of Queensland shall have the right to change the present unicameral system of Government to a bicameral system if so decided at a Referendum throughout the State of Queensland.
           WEalso declare that the Government of Queensland shall be vestedand maintained in the three principal, independent, non-political areas covered by the Public Service Departments, the Police Service and all sections of the Judiciary.
            AllMembers of the Queensland Parliamentary system and of each of the Government Services designated above, shall, at all times, be responsible to the People of Queensland and shall, as provided for in this Constitution,swear to such allegiance by the Oath of Office contained herein.
            WE, the people of Queensland, declare that the responsibility for the Government of the State of Queensland shall be vested in the Members of the Legislative Assembly whom shall appoint, or elect, from their membership, a Premier of the State.
The Premier shall then select an Executive Cabinet, comprising of Members of the Legislative Assembly, with the duties and responsibilities, as provided for in this Constitution.
Members from this Legislative Assembly shall be selected by the Premier 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.
We also declare that this Constitution shall only be amended through a Referendum system as contained herein.
The remainder of this Constitution shall be divided as follows:-
The above statement is the type, of draft that ought to be incorporated into a Preamble for the new Constitution.

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GOOD GOVERNMENT

Our present Constitutional Acts uses the term "Good Government" a number of times 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 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. It is the fact of life that 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 which 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 what we consider "good" and what 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 he based, therefore, on the Rights of the Individual.
 

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.
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 honorably and ethically. It has become quite obvious that ethical standards, particularly in politics and finance, have fallen to a very low standard in this day and age.
It no longer seems sufficient to rely on the force of unwritten Conventions to address this problem of unethical behaviour. Perhaps it may be prudent to include the remedies as part of the Constitution in the event of proven misconduct and/or parliamentary contempt. This way both the people and the politicians will be clear about the penalties and it may serve to reduce the manipulation and unethical rorting that is endemic in the current system.
It is an unfortunate but proven fact of human nature that "power" corrupts and, when this "power" to control the lives of other people is concentrated within a small group such a Government Cabinet, the tendency towards abuse of this "power" is greatly magnified.
 

The current election process is fundamentally useless in this respect because all it does is play musical chairs with participants. All politicians, apart perhaps for the occasional Independent, are imbued with the same motivation, the same type of vested interests and the same overriding loyalty to their political parties when the crunch comes.
Again we come back to the philosophic concepts that dictate how a Constitution is viewed, assessed and written.
Until this problem of the philosophy is addressed how are we going to define what is meant by the term "Good Government"

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SUPREMACY OF PARLIAMENT

Unfortunately the concept of "supremacy of Parliament" is one of the most deceitful and misleading myths of the Westminster system of Government.
To start with the "supremacy" does not refer to "Parliament" at all but only to the political party in "power" at any given time.'
What is even worse is that only a small group of politicians that forms the Cabinet are the ones who assume the mantle of "supreme authority".
As pointed out in the Issue Paper, the origin of this concept of "supremacy" stems from the conflicts between the Monarchy and the -fledgling Parliaments of early British history.
 

This is well and truly confirmed by the present Premier, W. Peter Beattie, when he promotes the proposed amalgamated Constitution to eliminate most Referendum requirements and, quote
"restore the supremacy of Parliament".
It is quite unclear as to the where the crux of this issue lies because the Constitution Bill does not directly address what is at stake. On top of that, most of the relevant details of the Parliamentary system are contained in the Parliament of Queensland Bill which appears separate and independent of the Constitution Bill.
Under the "majoritarianism" system of politics as practiced in Australia and, especially under the unicameral system which applies in Queensland, this small group of 12 of so Cabinet Members have virtual dictatorial control of Parliament.
The opposition, which represents usually around 50% of the electors, is largely meaningless under our Parliamentary system. The Government of the day can ram through Parliament any Legislation it wants as well as gag any debate if it gets too messy for its liking.
Under the rigid code of Party loyalty responsibility to a politician's electorate and their constituents becomes a distant second, if not last, in priority.

In addition, the need to bolster marginal electorates in an attempt to gamer votes at election times, leads directly to blatant and discriminatory malpractice by the Governments in "power" at the time.

In Queensland, over the past few years, we have seen the emergence of Independents holding the balance of "power". As a result Parliament has actually been allowed to operate in the manner which it was originally intended before it became corrupted by the development of Political Parties.

While party politicians have shed 'crocodile' tears about their loss of "power" and terror of "instability" that supposedly faced Queensland, the whole of Parliament got to be involved in the development of Legislation because the Independents listened to both sides of the arguments.
 

The advent of Independents holding the balance of power has, for the first time since the destruction of the Upper House, provided a semblance of the rightful checks and balances that ought to be essential to ant democratic system of government.
What we need in our Parliamentary system is a better way to communicate ideas and a better way to ensure that the diversity of views are better represented.
 

This way the views of a wider range of people could be expressed in the Parliamentary forum and it would mitigate against the stupid, ineffective and destructive adversarial system that is currently dominant.

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SEPARATION OF POWERS
This is an interesting concept which must start with the Constitutional definition of the "powers" of Government. This is described under Part 5 Section 49(1) which states that "The Executive Government of the State of Queensland (the State) has all the powers, and the legal capacity, of an individual."
As this is an example of "plain English" I would like to know just what it means - I am quite sure that no individual in Queensland has the "power" to make laws, so, where does that leave the Government?
Of course with typical political self preservation the politicians have added the rider under Section 49(3) that "this part does not limit the State's "powers"
This part of the Constitution seems to be deliberately written to avoid the necessity of defining, or specifying, any of the "powers" of the State Government while, at the same time, denying any limitations what so ever, to these powers.
 

On the one hand the Governments talk about the "Separation of Powers" as though this is some sort of 'holy grail" of Democracy and on the other hand they jealously guard their unwritten conventions and traditional habits of appointing the Governors of the State, the Justices of the Supreme Court and all the principle officers of the Public Service.
The "separation of Powers" is an illusion which all Governments are desperately keen to preserve.
As far as the Judiciary is concerned there are definite question marks about the way appointments are made to the Supreme Court because it leaves the responsibility for the appointments entirely in the hands of the Government.
Apart from being a Barrister or Solicitor with 5 years standing, there are no conditions on how appointees are selected or what other conditions should, or should not, apply. For instance, I believe that it is completely inappropriate to appoint a sitting politician or even ex-politicians unless there is an adequate grace period since their leaving Parliament, - at least a minimum of 5 years.
 

It is interesting to note that the Review Commission has included 'separation of powers' in the issue papers but the Constitution only refers to the Courts and the Governor.
All other Statutory Authorities are included in the separate Parliament of Queensland Bill which is not designated as part of the Constitution itself.
While Legislation is written setting up the various Statutory bodies there always seems to be ample provisions for the protection of politicians. As well there are always various escape clauses which allows the government of the day to use its 'discretion' to delay, or hinder, embarrassing investigations.
All appointments to Statutory bodies inevitably are under some degree of obligation for the patronage of the Government. It is an undeniable fact that only appointees approved by the Government of the day will ever gain selection.
To talk about "separation of powers" and the "'independence of Statutory bodies" is a myth because every Government uses, and manipulates, these bodies for their own benefit whenever they can.
Probably the only really effective way that truly independent appointments will be made to Statutory bodies is to have the selection made by a panel of people set up under the auspice of the Governor.
Because all Statutory bodies are created to provide a public service the Selection Panel should be made up of a cross section of the public. This could be achieved by asking the peak bodies from a range of community groups to nominate one or two candidates for consideration.
For example these community groups could comprise
· The Rural Community
· The Business Community
· The Unions
· The Religious Community
· The Youth Community
· Retirees
If such a process were to be developed it would be on the basis that separate panels would be used each time appointments are required for Statutory bodies. It would not be wise to have one panel set up on any sort of permanent basis.
I believe that a system such as this, would not only be independent of Government influence but would be seen to be independent by the community.

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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.
 

This mechanism must be designed to allow THE PEOPLE a clear cut method of reviewing its effectiveness at predefined, 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 Courts, the people must be able to censure both these organisations when they overstep the philosophical basis of the Constitutional guarantees.
There are many examples where Parliament has effectively changed the intent of the Constitution through Legislative avenues without seeking the approval of the people.
The people must be able to demand that Parliament put these issues to the State through a Referendum.
The type of Review system I would like to see in place is, at least once every 5-10 years, a State Constitutional Convention be held.
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 Court.
 

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 which result in increasing the power of the Government.
This mechanism will also give clear guidance to the Supreme 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 the State Government, ever intended to give arbitrary power to a group of people sitting in a Supreme Court, to make "landmark" decisions that effectively alter the Constitutional concept and intent.
 

If the Court sees 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.
No Constitution, 1 am sure, ever intended to hand over our sovereignty to a foreign power and the Government certainly has never had the 'peoples'' authority to bind this Society to the laws of any outside foreign entity such as the U.N.
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.
No Government can be trusted with any sort of "open cheque" that they inevitably seem to use in ways never mentioned, or indicated, initially.
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.

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THE GOVERNOR'S ROLE
There is a huge amount of hypocrisy surrounding the role and function of the Governor.
 

While technically it is true the Governor is appointed by the Monarch, the fact of the matter is that the appointment is made by the Premier, and similarly, so is the dismissal. There seems to be some sort of paranoid inability on the part of Politicians, and also this Commission, to honestly state the truth that the Governor only acts on the advice of the Premier of the day (except for Section 34 but, pity help any Governor brave enough to use this independently of the Government of the day!)

I just don't understand why it is so difficult to clarify this in the Constitution.

As for the Governor's Oath this is a classic in hypocrisy. There is absolutely no way that the Governor would be permitted to quote "administer justice" unquote in Queensland.
To start with the Courts would not permit anyone to adjudicate outside of the judicial system, and secondly, no Government would ever permit the Governor to act independently of the Government's wishes even if it were in the direct and obvious cause of justice.
The only latitude the Governor has, is supposedly, through the unwritten conventions of the concept of "reserve powers".
This "new" - "consolidated" - "modernised!!" Constitution still lives in some form of dream world where the Governor appears to be the pinnacle of Authority 'm the Parliamentary system of Queensland.
The Constitutional Review Committee seems to be totally incapable of summoning the courage to admit that we have a Premier in the State.
Nor do they seem to be able to comprehend that it is the Premier that has the Authority and that the Governor is merely a puppet that does what he, or she, is told.
 

Which brings us to the role of the Governor - what is the real relationship to the people of Queensland - is there, in fact, any relationship at all, - or is the Governor's Office nothing more that a 'rubber stamp' for theGovernment?
Should the Governor be able to act as the protector of the people against the arbitrary power of Government?
Should the Governor be source of last resort for ordinary citizens when their rights are trampled upon by the Government, the Government's Statutory bodies or even the Courts.
Should the Governor have the "power" to question publicly, the probity and Constitutionality of Legislation before being obliged to assent to same.
If the Governor is denied any of these roles then why do we bother to retain the position at all?
To perform any of these duties the Governor must be impartial and, most importantly, above politics.
In my view, any Governor must always have a set of reserve powers that ought to be spelled out as '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 iudgment.
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 Courts that is rendering these bodies less than reliable protectors of Individual Rights.
No Governor should be able to act in an independent political manner and, in this respect, the conventions on the Governor seem to work. 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.
I do not subscribe to the argument that the Government, that is to say the Premier, should have the sole right to appoint the Governor. 1 believe the appointment is a responsibility of the Parliament as a whole and, as such, a two thirds majority approval ought to be required.
 

I do not believe any Government of the day should have the power to remove the Governor at whim - the position should not be that of a vassal of the Government.
There is a defined procedure for the removal of Justices as well as defined reasons for initiating these termination procedures.
I see no reason to justify any less consideration in the case of the Governor who, theoretically, is a higher position that any Judge of the State. The removal of the Governor 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 Governor should only proceed through a defined process at least equal to, or more rigid, than that applying to Judges.
If a Parliamentary appointment system were to apply, along the lines suggested above, then the removal of the Governor should only be allowed by the same system as used for the appointment.
 

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THE JUDICIARY
Every Government attempts to politically load the Supreme Court in their favour by appointing Judges believed to be sympathetic to their line of thinking.
The Supreme Court's jurisdiction, as stated in the Constitution, seems to be without limit but this is dependent on the way one interprets the wording of Section 56(2)(a).
Does this wording mean that the Court's jurisdiction is "unlimited" only "at law" or is it "unlimited" as well in terms of "equity"' and "otherwise".
In our new "plain English version of the Constitution, might it not be prudent to define just what is meant by these terms "at Law" equity" and "otherwise"
If "otherwise" is a sneaky way of legitimising "judicial Review" then the people of Queensland have the right to know that 'their' Supreme Court is above the Constitution and has absolutely no restrictions on how they interpret or amend the Constitution.
Again the Constitutional Review Commission has adroitly side stepped the need to truthfully explain how the Supreme Court Justices are selected and nominated. They continue to deal in half truths and lack the courage to say that it is the Premier who decides and then tells the Governor what to do.
The Supreme Court should never have the authority to arbitrarily change the intent of the Constitution but it does have a duty to advise the Government if they see a need to for amendment.
Issues of conflict need to be dealt with through the political process and, if it involves changing the intent of the Constitution, then it must go to referendum.
The way the Constitution reads the Supreme Court seems to be set 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 Supreme 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.

When did Society pass a decree saying that the 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 Court's decisions are "wrong"?
If a relatively small group of learned people on a Supreme Court cannot reach an unanimous decision on really crucial Constitutional questions then surely that is proof that any decision is questionable?
 

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 Supreme Court and it is highly presumptuous if the Court to thinks so.
Under a Republican system (and even under the system we have today) the role of the Supreme Court, when dealing with Constitutional issues, needs to be clearly defined to ensure their decisions cannot be allowed to changethe purpose and intent of the Constitution.

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CHRISTIAN FOUNDATIONS

Christian principles form the basis of our Society whether we like it or not. For the large majority of Queenslanders, 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, this is because of International agendas, and pragmatic Governments, who deliberately deny the concept of Principles.
The Christian ideals of chilvary, 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 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 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 decadence 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.
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.
 

As Individuals, as citizens, as free people and as a Society, 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.

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REFORM FORA LIVING CONSTITUTION

Finally, if we are going to fundamentally change our governmental system by becoming a Republic, and alter "our" Constitution in what will be, a profoundly different conception, then we must make the Constitution a "living" document of which all Queenslanders 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 in our society by identifying the weaknesses and eliminating them from 'our' Constitution.
Our Queensland Constitution has never been a "living" Constitution - it has never had a sense of belonging - principally because it has never been a "peoples'" Constitution.
It is based on 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 it has effectively been hijacked by the legal profession and the politicians. 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.
It is absolutely imperative that proper definitions be determined at the outset so that everyone reading the Constitution will know exactly what is meant by the various terms, positions, bodies and entities that are discussed in the Constitution.
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 Public Service 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' society'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.

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