"In May 1998 Sir Anthony Mason delivered a paper at an Australian National University Law School seminar jointly sponsored by the Public Policy Program and the Centre for International and Public Law."

A more precise reference to that paper would have been nice.

Thank you, David Smith.

We should all be appreciative of the insights given to us by OLO and people who take the trouble to contribute.

Another recent contribution, plus articles in the general media, have given we members of the laity valuable information about activist judges.

We now know that democracy, always under threat from many directions, is also threatened in Australia by some arrogant, unelected judges with influence and public 'respect'.

Irrespective of political beliefs, we should all be supporting and demanding that elected governments root these characters out and, more importantly, be a lot more careful about whom they appoint.

I say again, perhaps we should be electing judges.

David

I remember you saying "God save the Queen" on the steps of Old Parliament House.

I still maintain my rage over this disgraceful act. Viva Le Republic.

"Well may we say God save the Queen, because nothing will save the Governor General!"

Sir Anthony Mason's seminar paper was entitled "The Republic and Australian Constitutional Development" and it was given on 11 May 1998.

David Smith

ruawake, kerr did the oz people a great favor, and a small favor: the small favor was to invite the electorate to judge the whitlam circus, which they did.

the big favor was to demonstrate that oz is not a democracy, nor even close. not many ozzians have learned that lesson, then or now. like the perpetual adolescents they are, they prate endlessly about their democratic rights, but they are totally unwilling to put in the effort to create a democratic state.

i have come to feel a little sorry for kerr. what i've read about him is entirely unfavorable- but don't believe all you read. he probably was a drunk,and a fool. but his main problem was he read the constitution, and believed it. so he did what he thought was his duty under the law, and was ostracized by a society that was determined to ignore it's fundamental law.

Well, it's reassuring to know that a former member of the High Court, tasked with interpreting constitutional law, has such a sterling knowledge of it.

It certainly explains a few of the High Court decisions of the past years.

"Certainly there's an implied freedom of speech in the constitution!"
"But there's no implied freedom from indefinite detention without charge or trial."
"Well of course the corporations power of the Commonwealth covers every last company in the country, down to the last fish and chip shop."
(etc)

Excellent job, chaps.

Fascinating stuff, Sir David! The insight you have given along the way into the self-serving exercise of whim and fiat in the treatment of the then Governor-General is most revealing. Was it not the Frazer government that recommended the appointment of Sir Zelman Cowen as Governor-General in the first case? Why then was it that Sir Zelman was treated so shabbily on this occasion? Could it be that the underlying reason is that those making such recommendations in their heart of hearts see themselves as being above those appointed to this office, above the person actually making it, and indeed above the Constitution that such appointees are directly charged with upholding?

You seem to be a great one for noting anniversaries with revealing insights into the events concerned. Was it coincidence that the posting of your OLO article occurred 19 years to the day after another event of a potentially much more serious nature involving not orders of precedence and positions upon daises, but issuance of an instrument of Constitutional significance? Monday 25 July 1988 was the date upon which the four writs for the 3 September 1988 referenda proposing alteration of the Constitution were purportedly issued.

Careful consideration of the requirements of the Referendum (Machinery Provisions) Act 1984, and several gazetted official notices relevant to those referenda indicates the possibility that then Governor-General Sir Ninian Stephen may have been by-passed, and his authority unlawfully usurped, with respect to the issue of those instruments on or about that date.

In the official notice of the results of the referenda conducted on 3 September 1988 published in Commonwealth Government Gazette No. S 324 dated Thursday 27 October 1988, the Electoral Commissioner referred to having received the writs from "the Administrator of the Government of the Commonwealth of Australia". Such mode of address would normally indicate that someone was standing in for the Governor-General. A check of the Parliamentary Handbook reveals, however, that no such deputising for the Governor-General had been proclaimed for the date in question.

Any more insights for us all, Sir David?

(cont)

The Referendum (Machinery Provisions) Act 1984 does not require the publication of facsimiles of actual writs themselves. The schedule to that Act, however, does set out the form such writs are to take, as Sir David is no doubt well aware.

Interestingly, what would appear to be facsimiles of the four writs for the 1988 referenda were nevertheless published almost a year to the day after their purported issue, on Monday 24 July 1989 in Commonwealth Government Gazette No. S 254. (See http://forum.onlineopinion.com.au/thread.asp?article=5496#71787 and following post for more detail with respect to that publication.) In what may well be contravention of the form of the writ specified in the Schedule, those facsimiles show the following enfacement:

"ENTERED ON RECORD BY ME IN REGISTER OF PATENTS, NO. , PAGE NO. , THIS TWENTY-FIFTH DAY OF JULY 1988.

SECRETARY FEDERAL EXECUTIVE COUNCIL"

Any signature of the then Secretary, or any Acting Secretary, of the Federal Executive Council is spectacularly absent. It is my understanding that no copies of these instruments can be found in the records of the Federal Executive Council. Enquiry of the office of the Governor of NSW as to copies of the writs (required under the provisions of the Act to be supplied to each Governor of a State immediately upon issue of the originals to the Electoral Commissioner) has, I understand, drawn a similar blank. Nor, I understand, is the Australian Electoral Commission able to shed any light on the matter of copies supplied to State Governors.

I would be greatly surprised, given his normal meticulous attention to strict legal propriety in such matters, if Sir David Smith had presented an important instrument for the Governor-General's signature that bore enfacements other than those required by the relevant Act. Had the Official Secretary to the Governor-General been kept out of the loop with respect to the preparation and issue of this instrument? Did the Governor-General attend a meeting of the FEC on the morning of Monday 25 July 1988 and sign now missing writs that day?

The public should believe writs for the 1988 referenda to have been issued by the Governor-General on Monday 25 July 1988. The reason is that in an official notice notifying the issue of the writs, published in Commonwealth Government Gazette No. S 212 dated Monday 25 July 1988, the Electoral Commissioner stated he had "...received writs issued by His Excellency the Governor-General...".

Inducive of some doubt as to this being the case, however, is the subsequent statement of the Electoral Commissioner in Gazette No. S 324 as to his having received writs from "the Administrator of the Government of the Commonwealth of Australia". Such doubt could be intensified by comparison of an undoubted signature of the then Governor-General, Sir Ninian Stephen, as represented, for example, in the preface to Year Book Australia 1988, with the signatures on the gazetted facsimiles of writs for the 1988 referenda. The seeming differences as between the four writ signatures amongst themselves, and between that in the preface, is on the face of it disturbing. But then again, I am not a handwriting expert, nor do I profess any extensive familiarity with variations in the signatures of past Governors-General. Perhaps others more familiar with such signatures could lay this latter concern to rest.

It is not inconceivable, however, that the Electoral Commissioner, knowing that the Act specified that it was to be the Governor-General who was to issue writs, and in expectation thereof, dispatched copy for his notice to the Government Printer (in all probable good faith, in order to meet publication deadlines) in advance of having actually received the originals of the writs. Imagine the consternation when the writs were actually received by the Commissioner should they have been found to bear the signature of someone purporting to be deputizing for the Governor-General after a gazettal claiming differently!

Could such have been an exercise of whim and fiat by a Minister, to the effect of usurping a function expressly assigned in the Act to the Governor-General, in the process prejudicing the propriety of a major electoral event?

Nineteen years ago today the rolls closed for the 3 September 1988 referenda. The Referendum (Machinery Provisions) Act 1984 provided in 1988 that the rolls were to close seven days after the issue of the writs: writs were notified as having been received in a gazettal on Monday 25 July 1988; the date of roll closure would seemingly thereby have been determined as Monday 1 August 1988. That this actually happened appears corroborated by publication in Commonwealth Government Gazette No. GN 38 dated 12 October 1988, of the statutory monthly report of the numbers of electors enrolled in each electoral Division, giving enrolments for all States and Territories as at the common date of 1 August 1988.

Interestingly, gazette GN 38 also contains, immediately preceeding the 1 August figures already mentioned, the statutory monthly report of enrolments for June 1988, as at various dates therein. No statutory report for July 1988, though. I wonder why?

A more useful question may be, in this climate of uncertainty as to date of issue and/or identity of the signatory to the originals of the now missing writs, which was the more effectively determinative: the administrative requirements of the AEC to effect a roll closure, or the date upon which the issuer (by law required to be the Governor-General) signed the writs? One would expect that it would have been the action of the Governor-General, upon advice from his Ministry, that started the electoral clock. I have a suspicion, however, that the then newly, covertly, and perhaps unlawfully centralized electoral roll management regime may not have been amenable to a sudden alteration to a planned roll closure date. Many thousands, indeed maybe hundreds of thousands, of enrolments under this system may have been in a state of flux at any given time: bringing them to rest in specific Divisions and reconciling enrolment accountancy may not have been something that could have been done without advanced notice for a particular date.

Could it have been originally intended to have closed the roll in July, but administrative or legal technicalities forced a postponement?

Buried in a mountain of detail in a submission to a JSCEM Inquiry (see www.aph.gov.au/house/committee/em/elect04/subs.htm for a list of published submissions) is a supporting document to Submission No. 161 called "Section 58 Enrolment Certificates Summary-October 1984 to May 1990".

On page 42 of the 1.6MB PDF that is Submission No. 161 (page number 1323 of the published submissions), Line 51 thereof lists what appears to be an (undated) statutory monthly enrolment report for the month of July 1988 identified not by a Commonwealth Government Gazette number, but as "GAZWEK", and further described in the "notes" column of that document as an "Unpublished draft found in Qld Supreme Court library". Curiously, this document shows that there was no change in the total number of enrolments recorded for all of Australia from this July 1988 unpublished draft to the 1 August 1988 printed total for Australia in the statutory monthly certification of enrolments published in gazette GN 38. Does this not smack of contrivance?

I ask again, could it have been originally intended that the rolls close in July 1988? Indeed, does it not appear, on the basis of this document, as if the rolls actually were closed some time in July 1988 and that the claims to having effected closure on Monday 1 August 1988 were nought but sham and pretense?

I note that this Enrolment Certificates Summary is not accompanied by copies of the actual Gazette notices, particularly that of the "unpublished" GAZWEK certificate. Perhaps the Joint Standing Committee on Electoral Matters should be pursuing the author of Submission 161 for more information on, or an actual copy of, this claimed document. Especially so given this Committee's current Inquiry is dealing with the consequences of what amounted to the covert substitution of a possibly unlawful centralized roll keeping regime for the tried and proven decentralized Divisional office structure mandated by law.

It looks horribly like the centralized system may be incapable of delivering a genuine roll closure at any time of the Governor-General's direction.

Forrest! Forrest, you come here at once! I want to talk to you! Right now, if you please!

It's my Alter-egotist! I just hate it when he comes round. I wonder what he's going to go on about now?

Found you, Forrest! You're going to cop it now, Forrest. How dare you say that someone forged the Governor-General's signature on writs! Lucky for you those writs are still lost!

But I didn't, Alter-egotist, I didn't.

Don't you dare interrupt me Forrest or try to tell me what you didn't do. Anyone who doesn't bother to read can clearly see what you've said! And if anyone wants an even more accurate knowledge of what you've said they only have to ask someone else who hasn't bothered to read carefully and they will have an even better understanding of what you think. Two mind readers are better than one any day.

Forrest, your own words condemn you. You just can't say things like "One way of gaining political power in a democracy is to alter electoral outcomes by fraud." You said this, Forrest, in this post: http://forum.onlineopinion.com.au/thread.asp?article=5598#73662 . You've been told and told and told again that such things can't happen.

You also posted this: http://forum.onlineopinion.com.au/thread.asp?article=5679#76479 . And then this concise piece of disgraceful broadbrushing: http://forum.onlineopinion.com.au/thread.asp?article=5087#60535

Really Forrest, you can't run around telling truths like this! Next thing you know you will be saying that the only really good representative of Australian electors at the Federal level, with an incumbency and policy bent untainted by the long-term presence of a thumb on the figurative electoral scales, is the Governor-General! Wash your mouth out with soap at once!

Urk, soap! Spit. Splutter. Spit. Burned again by my Alter-egotist! Would tae God th' giftie gie us, tae see oursel' as others see us (lang afore they dae).

It is interesting to note the collective description of the Australian Year Books in Sir Ninian Stephen's preface to Year Book Australia 1988 as "... that faithful mirror of Australia past and present, ...". The full text of Sir Ninian's preface can be viewed here: http://forum.onlineopinion.com.au/thread.asp?article=6100#89052 . The facsimile of his signature could not be reproduced.

Throughout all the years of their publication, right up until the year the Governor-General wrote his preface, Australian electoral and referendum results had been promptly, and repetitively, reported in the Year Books.

Curiously, half of that tradition seems to have been abandoned the very year after the Governor-General made his Bicentennial remarks. Year Book Australia 1988 was the last edition of the Year Books to report the results of Commonwealth referenda, those of the referenda held in 1984. Neither the results of the four 3 September 1988 referenda, nor the two 6 November 1999 Preamble and Republic referenda, have ever been reported in the Year Books.

I had been of the opinion that this represented two successive instances of a regrettable disregard for Australian traditions in public administration of which Australians could previously have been proud, and upon the upholding of which they could have previously relied. I now think this opinion to have been wrong.

In the light of the information in, and revealed by, gazettals mentioned in the preceeding posts, it now appears that failure to publish the 1988 referenda results in the Year Books, far from betraying a falling standard of reporting, constitutes a beacon witness to fidelity on the part of the Australian Bureau of Statistics! It would appear that with no source document for results, no publication was undertaken.

It is to be hoped that similar deficiencies in the availability of originals of instruments for verification of Year Book copy by the ABS did not lie behind the failures to publish the 1999 referenda results.

It is reassuring knowing that the non-judicial member of the three-person Australian Electoral Commission has, since its inception, been the Australian Statistician.