Letter To Lalor 20100826

H J AMES J OHNSON
A USTRALIAN H OUSE OF R EPRESENATIVES

I NDEPENDENT C ANDIDATE FOR L ALOR
Thursday 26 August 2010
My fellow constituents of Lalor By Twitter and Facebook

(and other interested Australians)
MY BLOG ON WHITLAM ON THE CONSTITUTION AND THE LIMITED ROLE OF THE GOVERNOR-
GENERALIN AUSTRALIA'S CONSTITUTIONAL DEMOCRACY AND CEREMONIAL MONARCHY
I am writing this letter to encourage and stimulate more open public debate over the role of the British Crown in
our Australian political and constitutional systems of parliament, courts and government. I have been fortunate
enough to read most of Australia's national and capital city newspapers for these past 4 days. I have to say that
the press coverage of our wonderful election result is amongst the best newspaper journalism in [my 46 years
of] Living Memory.
In particular I am writing to put in the public forums the opinions of the many distinguished constitutional
scholars, journalists, historians, lawyers and politicians who have shaped my views on the role of the Vice-
Regal delegate of the British Crown in Australia, Her Excellency Governor-General Lady Quentin Bryce may
play in our truly unique Australian system of constitutional democratic government.
My letter, and these present discussions are going on against the background of Australia enjoying its first 'hung'
parliament of the Post-World-War-II period. Over the past week many men and women, including distinguished
constitutional academics and professors of law have come forward to express opinions on the constitutional
functions, powers and duties of the Governor General of Australia.
I should say at the outset that I have very little original ownership of my views. My opinions I express in this
letter are largely a synthesis of ideas and insights from many of Australia's and the world's finest constitutional
scholars. These include Australians such as E.G. (Gough) Whitlam, Emeritus Professor Donald Horne,
MAIL: PO Box 6137 Point Cook Vic 3030 james@jamesjohnson2020.com :EMAIL

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DEFENDING THE AUSTRALIAN CONSTITUTION *** WORKING FOR TRUTH, JUSTICE AND A NEW AUSTRALIAN WAY
Professor Peter Botsman, Professor Bede Harris, Robert Hughes, and Professor Manning-Clarke. Further
afield across time and geography they include such luminaries as Sir Thomas Moore, John Cooke, Thomas
Paine, Thomas Jefferson, James Madison, Benjamin Franklin, John Adams, Abraham Lincoln and W Cleon
Skosen. I refer to some of the writings of and about these original thinkers and scholars in the reading list at the
end of this letter.
Opinion 1: Should or could the Governor-General be embarrassed in the present political circumstances
by reason of her son-in-law Mr Bill Shorten being a Member of the House of Representatives and a
member of the Australian Labor Party? Clearly Not, given the Governor-General's role and the
Monarchy's role in our government process is 100% ceremonial and zero percent functional
On 23 August 2010 Lady Quentin Bryce issued a formal media statement which, in its 18 words exactness
reads: “The Governor-General is seeking advice on concerns raised about her personal position in the current
political circumstances.”
My opinion is that Lady Bryce is 100% right to seek counsel on her position. It is proper and cautious for Her
Excellency to obtain legal advices (that she may freely choose to follow or to ignore) having regard to all sorts of
suggestions in the daily media (including today) suggesting an unavoidable conflict of interest in her (imagined)
functional role in Government. The suggestions that her Excellency the Governor-General should resign say
more about the egos of those suggesting such drastic action, than a true and impassionate assessment of the
constitutional situation.
In my opinion the Governor-General, Her Excellency Lady Quentin Bryce has no reason for fearing an actual or
potential conflict of interests arising from the fact of her being the mother-in-law of an ALP member of the
Australian parliament, so long as the Governor-General recognises that her role, and the role of the Australian
Crown Monarch whom she represents is purely ceremonial and devoid of functional powers. And whatever legal
or constitutional improprieties that her son-in-law might have committed for his role in the betrayal of Kevin
Rudd and the installation of Julia Gillard, those are Mr Shorten's improprieties and cannot reflect in any way on
the ceremonial role and dignities of the Governor-General's office.
In my opinion the extraordinary vice-regal intervention by the former Governor-General in 1975 (discussed
below, in former Prime Minister Gough Whitlam's own words) was an aberration of a less sophisticated
generation of governmen and governwomen. I believe that the wrongful interference by the ceremonial Crown
in the functions of the parliament that occurred in 1975 would not occur in the British political system today, nor
will they occur again in the Australian political system.
My reasons (including the published thoughts of former Prime Minister Gough Whitlam) are outlined below.
I believe that the advice that the Governor-General, Her Excellency Lady Quentin Bryce will in due course
receive will be to the effect that as the role of the Monarchy in Australia's constitutional democracy is purely
ceremonial she has no active governmental duties or functions to observe. Therefore her ceremonial duties
cannot possibly come into conflict with any of her family relations or family rights or responsibilities or privileges
or actions. Nor do her family relations disqualify her from accepting or performing or keeping her ceremonial
role as the Crown representative of the Queen Monarch for the purposes of the federal Australian government
and the ceremonial role reserved for the Governor-General's office under our federal Constitution.
If the advice that Her Excellency receives is as robust and wide-ranging as I expect it to be, it will include a
warning that Her Excellency should not think of exercising any functional governmental powers or intervening in
the Australian federal parliamentary processes, like her predecessor Sir John Kerr sensationally did on 11
November 1975. If Governor-General Lady Bryce did have active governmental duties to perform under the
Constitution, then their exercise would unquestionably raise concerns of apprehended bias according to High

Court judgments (such as leading case of Johnson v Johnson (2000) 201 CLR 488) which are of universal
application across all the arms and up and down all of the tiers of government, the judiciary the executive (the
Ministers and public service agencies) and the parliaments. On this mistaken view of a non-ceremonial role for
the Crown), these apprehended bias principles would apply to the Monarch and Her representative as well
(since they too are bound to comply with our Constitution).
Ordinarily, a government officer, if he or she is morally, ethically and legally correct in the circumstances, when
facing a situation of “Johnson principle” apprehended bias, would step down from exercising any
governmental powers in those circumstances. On this (mistaken) view of a functional, non-ceremonial role for
the Monarchy in Australia's system of government, the Governor-General could not simply step aside from the
task at hand as no other equivalent officer would be there to come forward to exercise those governmental
functions. On this mistaken view that Australia has a functional governmental role for the Monarchy (a view that
former Governor-General Sir John Kerr sensationally acted on) it might be suggested that Queen Elizabeth the
Second might step in and exercise regal functions directly in her capacity as reigning Queen of Australia. I
believe that this will never happen and would give rise to all sorts of disastrous consequences for the British
Monarchy, in Britain and in Australia (see below). The absurdity of the suggestion of direct Royal intervention in
the affairs of the Australian Parliament puts pay to the absurdity of the suggestions that the Governor-General,
or the Monarchy more broadly might have a functional role to play in Australia's federal government processes.
Opinion 2: Why does the Australian Monarchy, the British Queen's Governor-General play a purely
ceremonial role in Australian Politics, according to the Australian Constitution?
Complex issues arise under Australia's written and unwritten constitutional laws, under international law, under
divine law (We don't say “God Bless the Queen” as a panacea against the common cold), and under basic
principles of natural justice. These complex issues and conflicts have nothing to do with the final outcome of the
21 August 2010 election. They are structural deficiencies that were planted in our constitutional framework right
back at the end of the 19th Century, at the birth of Australian Federation.
None of these issues arise so long as the Australian Monarchy, including our Governor-General recognise its
purely ceremonial role in Australia's constitutional democratic government processes.
My opinion is that the [British/ Australian] Crown has no constitutional power to interrupt and therefore should
not interfere in the will of the Australian people, as reflected in the ballot outcomes from the 21 August 2010
House of Representatives General Election and Senate half election.
In times of constitutional crisis (which arise almost daily for me, given my line of work), I always refer back at
some point to our greatest constitutional scholar, E.G. Whitlam. 99 not out last month, Gough first distinguished
himself in 1957 when he delivered the Chifley Memorial Lecture at the University of Melbourne on “The
Constitution versus Labor.” His work “On Australia's Constitution” is the first and last word on the Australian
constitution and so-called conventions. And his words have only sharpened and not been blunted by the
passing years.
On pages 10 and 11 of his self-penned introduction to “On Australia's Constitution”, Gough Whitlam writes in
1977 (with the constitutional wounds of 11 November 1975 still fresh):
“That brings me to the question of the monarchy itself. I have, as I think is well known, the
greatest admiration for the Queen; her present style and title of Queen of Australia were
adopted at my instigation. It is certainly no reflection on her ability, her record or her
personality to point out that the actions of the Australian conservatives have made the position
of the monarchy in Australia untenable. Indeed it has been because the Queen's own conduct
has been above reproach that the machinations of her current representative in Australia, and

the irrelevance and inadequacy of the Constitution he embodies, have been so sharply
exposed. The monarchy was discredited, not by any actions of the Queen, nor even by the
actions of the Governor-General alone; but by the Queen's inability to act in a constitutional
crisis involving the exercise of her powers or powers assumed in her name. A letter from
Buckingham Palace to Mr Speaker Scholes on 17 November 1975 admitted that “the Queen
has no part in the decisions which the Governor-General must take in accordance with the
Constitution.” That letter dealt a mortal blow to the survival of the monarchy in Australia.
Whatever arguments there may be for the Queen as Head of State, it is difficult to sustain them
if the Queen herself is acknowledged to be powerless. Whatever arguments there may be for
the reserve powers of the Crown, they come to nothing if the Crown itself cannot exercise
them. In short, what is the use of a Head of State whose powers are not merely symbolic but
non-existent?
I do not think that we can avoid this question by arguing, as conservatives do, that the Queen's
powers are exercised in her name by her representative in Australia. That is a theory, of
course, but the problem remains: What powers do we mean? We cannot mean the powers of
the Queen of Britain, since no such powers have been exercised by a British monarch since
the days of George III, and in any case they are not specified in Britain's unwritten constitution.
It is absurd to say that the Governor-General is exercising in the Queen's name powers which
the Queen does not possess and would not presume to invoke. In purporting to exercise such
powers the Governor-General in 1975 destroyed the credibility of an institution which three
generations of the royal family had striven devotedly and conscientiously to establish...”
Within the confines of their party room on 23 and 24 June 2010, how badly did the Labor Government do to
itself and its supporters under “party rules” the same wrongful things that the “conservatives” did to the Whitlam
government on 10 and 11 November 1975 under “constitutional conventions”.
Opinion 3: One Man's Opinion on these questions carries little weight. Ultimately the only opinions that
matter are the opinions of those of the 7 Judges of the Full High Court of Australia as the 7 independent
umpires of the Constitution
Of course my opinion is only the opinion of one of more than 22 million Australian citizens. The political and
media powers that be, and even the voters at the next election, can dismiss my opinion, or even refuse to listen
to it, and I respect their liberty to do so.
However, I invite my fellow constituents of Lalor and my fellow Australians to think about the questions that are
being asked at the present time. Nobody has the answers. And the answers, if there are any, will take time to
find, to measure and to implement. The key thing for now is to try to find all of the right questions This is a time
for asking questions. The answers, many of them, may be years in the making.
I am a solicitor and barrister of twenty years good standing who for the past several years has been defending
ordinary Australian's constitutional rights and liberties. Some days, when arguing well co-ordinated and funded
constitutional class actions, I earn $11,000 a day on account of my seniority and knowledge of constitutional and
international human rights laws. On other days I am working for 'free' defending the constitutional rights and
liberties of ordinary Australians mothers, children and fathers on an individual grass-roots level. Quite often I
even find myself paying out of pocket costs (photocopying, printing even costs of other specialist services) and
even dubious if not outrageous Court fees – Government taxes to block people from access to justice – on
behalf of my clients, government fees and charges that they cannot afford to pay themselves.
I have a large log of constitutional and human rights cases currently before the Australian Courts, with a
collective value of more than $500 million. I also have instructions to issue more individual and class action

constitutional law claims which will be measured in $billions, if not $Trillions. Included amongst these are claims
which I call “Rocher claims” in honor of Former Deputy Speaker of the House of Representatives (Member for
Curtin, now held by Julie Bishop, the Deputy Liberal Leader) in honor of Mr Rocher's denouncement of
Australia's unconstitutional, killer Family Courts (Hansard, 17 June 1998).
I have drawn up papers to challenge the unconstitutional acts of the Australian Government (specifically, the
Australian Electoral Commission) contaminating both the 2007 and 2010 election processes and outcomes by
wrongfully manipulating voter rolls, by wrongfully manipulating candidate rolls, and by wrongfully manipulating
electoral boundaries – as the AEC again threatens to do for the 2013.
Should the Governor-General Lady Quentin Bryce do anything more than perform a ceremonial role, adding
pomp and ceremony but otherwise (without wishing to sound unkindly) little more than rubber stamping the
wishes of the elected parliamentarians (Members of the House of Representatives), I am in receipt of
instructions to issue Court proceedings immediately challenging the constitutional validity of Her Ladyship's
actions. Again, our society has matured far beyond the sensational and stressed circumstances of the 1970s,
when lawyers such as myself and civil and political rights organisations such as my instructors, were non-
existent so the Constitution and the constitutional rights of us ordinary Australians were pretty much an
exclusive club to be enforced or ignored, to be tested or forgotten about, only at the whims of either one or both
of the dominant political parties and their financially power-brokers.
So, from a practical perspective, it doesn't matters terribly much what reception my opinions on these
constitutional questions receive from the major political parties or the major media and forums of public debate.
The practical situation is that, should our Governor-General Lady Bryce act in any way majestically rather than
purely ceremonially, the constitutionality of her actions will be put before Chief Justice French and the other six
members of the Full High Court of Australia to be judged in due time and with due process according to
applicable written and unwritten constitutional, international, divine and natural laws under which the Australian
peoples allow themselves to be governed.
And the overriding practical reality is that it is unthinkable that our Governor-General might think that her role in
Government (or the role of the Queen whom she represents) is anything more than a purely ceremonial role
void of any genuine govermental duties or functions or powers. I don't see any High Court challenges arising
out of anything the Governor-General does in connection with the exciting political situation created by
Australia's so-called 'hung parliament' (spin) / 'healthy parliament' (reality).
Opinions 4 & 5: Australia has its own unique parliamentary system – a unique system of political
democracy that borrows most heavily from the United States model of Government. Australian
democracy borrows only marginally from the British. It is wrong to say that the Australia has a
Westminster system of government. It is wrong to say that there are clear Westminster conventions (or
British Conventions) that cover the present situation.
Opinion 4: The Australian Constitution is 'Federalism' not 'Westminster'
Australia does not have a Westminster system of Government, although this is the label that is almost
universally (“catholically”) and wrongly taught in our high schools and even in our University law courses.
The Australian constitution borrows two features relatively superficial features of the British Westminster system
of Government. The first of these is merely ceremonial and of no functional importance, however important it is
to some or even a majority of Australian passions and sensibilities for royalty. This is the 3 vertical tiers of
Government, The Crown, The (House of) Lords, and The (House of) Commons.

The British Crown (the first tier off government in the Westminster system) is itself a bizarre legal device – a
legal fiction. It combines the notions of divine right and divine law (God's chosen Monarch) who since King
Henry VIII's day has also been the head of the Government Royale sponsored Church. Hence the special
attachment to ceremony (almost a parallel to the papery of the Catholic Church). These divine powers, royal
prerogatives combine to form the modern British Crown centuries before modern international law (“world
constitutional law”) developed based on a rediscovery of principles of natural justice (freedoms and rights) that
were snuffed out by the Westminster system of government via the fusion of divine and regal powers in the
Crown.
But Australia borrows most heavily two and a half of the three key features of the United States of America
model of constitutional democracy. Australia's political system embraces two important American concepts.
 The first is Federalism. So instead of a middle-tier, hereditary house of parliament, The House of Lords,
Australia has USA-style Senate, a State's House.
 The Second is the doctrine (though it is largely lip service these days) of separation of powers. This is a
horizontal separation of Government into The Parliament (Chapter I of the Australian and the USA
Constitutions), The Executive (Chapter II of the Australian and the USA Constitutions) and The Judiciary
(Chapter III the Australian and the USA Constitutions).
Unlike the American and Australian models of government which are alike, the British (Westminster) political
system has no separation of powers – there is no Three Headed Eagle in the Westminster System of
Government. The British second vertical tier of government, its House of Lords is not just a house of parliament
whose membership is determined by birth right rather than popular election based on merit. It is also a court of
justice, the House of Lords, where the Law Lords exercise judicial functions of government.
In the British Westminster system of democracy, The House of Lords is in effect a house of 'mini Crowns', the
smugness of which would not be tolerated by the American constitutional fathers. Nor would it be tolerated by
our own Australian constitutional forefathers who insisted on a rigid separation of judicial and non-judicial
functions of government (even though our Australian constitutional forefathers, all State parliamentarians,
though nothing of fusing the parliamentary and executive arms of government rather than keeping them
separated as in the American constitution. Many constitutional scholars believe that in this decision the
Australian constitution took a backward step compared to the 124 year older American Constitution).
Opinion 5 (Australia is a Constitutional Democracy (like USA) with a Ceremonial Monarchy (like Britain)
attached to it)
The one similarity that Australia unfortunately shares with the Westminster system, there is no horizontal
separation of powers of the Executive Government (the Minsters who ad'minister the day to day running of
government) from the adversarial debaters, policy makers and legislators, the parliamentarians.
How could anybody, other than a 'mini Crown' inheritor of a seat in the British House of Lords could think that
the best people to run the day to day management of legitimate government public administrations are the ones
who attack, debate and ridicule their peers in adversarial style in the parliaments. Yet, generations of increasing
numbers of Mr Humphries (some even called Mr Humphries in real life) have made very successful mandarin
lives out of this.
The most obvious but also most irrelevant similarity Australia shares with the Westminster system of
Government is the ceremonial regard to the maxi-Crown. This harks back to Australia's penal colony days, a
penal government with a nation (the Australian experience) rather than a nation with a government (the USA
experience) nation.

The ceremonial role of the Crown in Australian government harks back to Australia's penal governor stain, the
brutalities of the colonial Governors, of which there are too many names to be mentioned in one sentence. We
should be clear that Australia has never suffered from a true convict stain. The so-called convict stain is just a
myth, 19th and 20th Century spin, political Big Brother 'newspeak' to cover up 18th and 19th Century human rights
abuses and other government corruption amounting according to some scholars to nothing less than crimes
against humanity. For example Irish-born so-called 'convict' Mathew Brady (a son of a liberty seeking upper-
middle-class Irish family of freedom seekers). Brady was transported to Australia (commuted from hanging).
Brady was transported 18,000 miles in a 6 month voyage as slave labor, for the dangerous crime against
property of stealing a picnic basket. 1820's transportation was the 19 th century equivalent in technology and
effort of sending a man (or a ship load of political prisoners) to Mars. Much better and much more intelligent
than building a prison (not) in Lord Marlborough's back yard.
The ceremonial role of the Crown in Australian government processes is also a reflection of the general
consensus of the 2 million Australians alive in the late 1890's who by overwhelming majority (83% plus) did not
want a constitution, did not want a federation, and did not want an independent nation but preferred instead to
remain as dependent British colonies and British possessions.
Of course, Australia does at the present time have the same Queen as the British. Queen Elizabeth the Second
is both the Queen of England and, separately and distinctly, the Queen of Australia. But there is no
constitutional reason why this had to be or needs to be in the future. The reasons are purely historical.
The written Constitution of the United States of America is a quantum leap (a 5,000 year leap, as W Clausen
Skousen puts it in his remarkable work of the same name),a quantum leap on the Westminster system of
Government. There are plenty of reasons why the Australian Constitution could and ought to be another
quantum leap over the United States of American Constitution.
The basic point is that there are no Westminster system conventions that assist an Australian Governor-General
(the top vertical tier of government) who acts on the instructions of a British Monarch (but does not commit
Australian treason in doing so) as to a situation where the Governor-General's son-in-law is a member of the
parliamentary and the executive wings of government (the first and second horizontal chapters of Government).
This kind of situation could never occur in a Westminster System of government.
It is purely an Australian (or, possibly, New Zealand) possibility. It could not happen, as far as I have had need
to check, in any of the other members of the Commonwealth of Nations (the former colonies of the British
Empire). It could not arise in Canada, Fiji, India (by far the biggest of all democracies), South Africa. Nor could it
happen in Timor L'Este with whom we share our northern continental shelves.
How, in the Westminster system of Government, could a HRH or a HRH-in-law of Queen Elizabeth Second
ever become a member of the House of Lords or, even more ridiculously, a member of the House of Commons?
More importantly, if Queen Elizabeth Second were to interfere in the workings of the House of Commons, or
even the House of Lords, or doing anything towards them other than purely popery and ceremonial, would the
British Parliamentarians stand for it? Would the British people stand for it?
If it is the wish of 22 million Australians in 2010, as it was (allegedly) the wish of the 2 million living Australians,
to have a ceremonial Monarchy role in our government processes and institutions, well this can be
accommodated even if we moved from 2 ½ of the 3 features of the US model of constitutional democracy – by
insisting on a separation of executive and parliamentary arms of government – such as (one of many options
available) via the popular election of our Prime Minister and/or other Ministerial positions.

There is no reason Australians could not fully embrace the USA model of a people's elected President and
separating Chiefs of State (Ministers) from Parliamentarians whilst keeping a ceremonial role for Monarchy (as
the USA of course did not).
There are nothings to stop the wishes of monarchists and the wishes of republicans being both granted.
Opinion 6: There are no Westminster or USA Conventions that “clearly” or even vaguely cover the
situation where an Australian Governor-General might play an active part in Australian parliamentary
politics.
This is tantamount to saying that Sir John Kerr was wrong in 1975 to actively remove Gough Whitlam and to
actively install Malcolm Fraser as care-taker Prime Minister. This is tantamount to saying that the Australian
Labor Party were wrong not to go to the constitutional umpires, the Full High Court of Australia, for a ruling on
the constitutional legitimacy or illegitimacy of Sir John Kerr's actions.
It is only necessary to read 3 more paragraphs from Gough Whitlam's introduction to his “On Australia's
Constitution” from 1977 to dismiss suggestions of 'clear constitutional conventions' as superficial, or even spin-
doctoring:
“... Much of Labor's problem with the Senate would be removed by an amendment providing
for simultaneous elections of both Houses. That is a realistic objective in the short term.
When I gave the first of these speeches, and indeed right up to 1972, neither I nor anyone
else had envisaged the degree of Senate obstruction, which could and did occur. Few
imagined in 1972 that Labor's lack of a majority in the Senate would seriously threaten our
legislative program, let alone the existence of the government. No one imagined that in the
election of 1972 we were doing anything other than elect a national government for a normal
three-year term. Of course we were wrong. We underestimated the conservative
ruthlessness and desperation. But the point is that if there had been a simultaneous election
for the Senate in 1972 there would almost certainly not have been a double dissolution in
1974. Labor would have completed a normal term, we would have passed our legislation
without serious obstruction and our chances of re-election in 1975 would have been greater.
Equally, had the conservatives in 1975 observed the convention that casual Senate vacancies
should be filled by someone of the same party as the former senator – a convention
introduced at the conservatives instigation and followed by all parties in all States for 25 years
– there would have been no deferment of supply, and in all probability no double dissolution.
Labor would again have survived a normal term without distraction, and consequently with a
better chance of being returned.
All of this seems to me the best possible argument in favour of the referendums to be held
next month. It is reasonable that elections for the House of Representatives and Senate in
Australia should take place on the same day, as they do in the United States; that a senator
who does not see out his term should be replaced by a person whom the electors would have
chosen instead of him at the time he was elected rather than by a person whom members of
the State Parliament would choose when the vacancy occurs; that electors in the territories
should have the same right to vote in referendums as electors in the States have; and that
High Court and Federal Judges should be subject to a retiring age as Supreme Court and
other State Judges have been since World War I. These reasonable proposals to alter the
Federal Machinery cannot be achieved unless the Federal Parliament submits them to
electors and the electors approve of them. (The proposals on judges could also be achieved if
the High Court were to reverse one of its decisions which has stood since 1918, but the

change will be more democratic, and more likely to endure, if it is made by the electors
themselves.)
There is no doubt in my mind that Labor will be the long-term beneficiary from the passage of
these referendums. We shall have taken a significant step towards electoral democracy. The
conservative record of hypocrisy, cynicism and tergiversation on the referendum questions
need not concern us. Of course there are short-term gains for the Fraser Government in
having the referendums passed; of course the replacement of casual senators should
preferably be treated as a convention as it always was. But when all is said and done
conventions can be broken, and a future Labor government would be just as vulnerable to a
breach as my government was. The only way to prevent the conservatives breaching the
constitution again is to write it into the Constitution. With the passage of these referendums
future Labor governments and Labor voters will have cause to thank us; the turmoil of 1975
will not have been in vain. I take some pleasure from the fact that had it not been for my
government these issues would never have arisen, the Constitutional Convention would never
have met in 1973, 1975 and 1976 and the referendums, whatever their fate, would never have
been putt to the people...”
Opinion 7: Constitutional conventions are dangerous. They are the unwritten rules of a game that is
played by the stewards of the day of the two major political parties, rather than seeking certainty of
written rules either via constitutional rulings from the High Court of Australia and/or new rulings from
the Australian peoples via constitutional reform
I refer to the previous exhibit. No one could demonstrate this more clearly, or with better humanity and wisdom
than Gough Whitlam himself.
For my part, whenever anyone mentions to me the words 'constitutional convention' I immediately think of
Chapters 11 (Who stole the Tarts') and 12 (Alice's Evidence) of Lewis Carroll's Adventures of Alice in
Wonderland. IN the midst of a (royal) family law case, the presiding err umm err King, who has already gone on
record as finding himself as eminently qualified to exercise judicial functions of government on account of being
clearly prejudiced and biased in favour of his wife (the plaintiff, Queen who sits beside him on the bench)
against his Nephew (the Naive/Jack who stands in the dock, within eye-shot of the clearly unstollen tarts) goes
on to refer to a convention for excluding Alice from the Court Room (Alice being a witness not a party to the
proceeding) by referring to Rule 42, which everybody in the Court Room knew (according to the King) was the
oldest rule in the book.
Opinion 8: Australia is a Constitutional Democracy with a Ceremonial Monarch. Australia is a

reasonably good It is possible for Australia to become a stronger democracy even without embracing a
separation of powers between the Parliament and the Executive, even without becoming a Republic,
even without embracing a popularly elected President or Prime Minister, even without abolishing the
ceremonial role attached to government processes and even without abolishing ties to the British
Monarchy, even without abolishing ceremonial monarchy altogether.
This opinion seems ironic since we have just witnessed, in effect, a 5 week political campaign by the two
dominating political party machines. The obvious goals and strategies of the two party machines were not to
see the election of 150 parliamentarians and a smaller number of senators, but in all presentation and delivery a
US-style presidential campaign to elect either Julia Gillard or Tony Abbott as the nation's preferred Prime
Minister. Julia Gillard, for example, campaigned in every State and in many of her colleague's Seats, but except
for a few hours the morning that she announced the election, and a few hours when she cast her vote, she did
not spend any time at all in her own electorate? Arguably, under Westminster government, and under
Australia's hybrid of USA federalism – UK Westminster government, our care-taker government was somewhat

in contempt of her parliamentary responsibilities to represent, to report to and to speak up in parliament for her
Lalor constituents (including protecting them from the kinds of abuses by judicial and executive arms and
processes of government that I have witnessed far too much of during the term of the recently extinguished
Rudd-Gillard Government).
The Crown is not an indispensable tier of government. Indeed, these are carbon- and environmentally-
conscious days when eco-saving and frugality is the new conspicuous 'non-consumption'. This applies to
individuals, to households, to communities and to nations and governments. The Lewis Carrollian pomp and
ceremony of Royalty is not only unnecessary but would seem to be totally out of place in modern times. One
cannot imagine a British Queen meddling in British parliamentary government to the extent that Sir John Kerr
did in Australia in 1975 – not without serious repercussions and an accelerated expiry date for the British
ceremonial monarchy.
Even if the British (or Australian) people wished to retain concepts of royalty and ceremony, they could do so as
a society thing without intruding concepts of royal blood lines into the structure of government. There are many
examples of nations around the world who recognise 'royal' families' without giving them governmental
ceremonial powers.
No one of Europe's grand royal families has an exclusive right to any one of Europe's crowns. The British
Crown has fluctuated since Roman days through Celtic and Anglo Saxon hands, from English heads, to Scottish
heads, to Dutchmen and Dutchwomen (William and Mary of Orange - sometimes included in the lists as Stuarts
to cover up their non-Englishness) to German heads (Queen Victoria, her Hanoverian descendants, and their
present day descendants, the Windsors).
Most of the former European empires, including Spanish, Portuguese, French, Italian and German, had non-
native born Kings and Queens at regular periods in their histories. Indeed, some royalists, including those who
see an active role for royalty in the running of Government in Australia, can make an argument that perhaps, if
Australia stays a constitutional democracy with a ceremonial monarch, then perhaps the Prince and Princess of
Denmark might be a better choice for Australian King and Queen on many grounds, compared to the Windsor
incumbents.
Eduard de Bono's book, “Why I want to be King of Australia” makes some wonderful points about the
Australian people in a many wonderful ways. Amongst De Bono's suggestions were ideas such as we could
vote on a Monarch to perform this ceremonial role for a specific period – like a Prom King or Prom Queen, like
an Australian of the Year. Eduard also offers himself as a possible King of Australia (he owns and lives on an
island off the coast of Queensland it seems – as real royalty should, and is also much closer than the Windsor
HRHs which would be an advantage from an accessibility and maybe even a security perspective). De Bono
also suggested we could invent a new Australian name for our Monarch – such as calling our Monarch a
Boomaroo (word sources being wonderfully obvious). Some great ideas to provoke and stimulate public
thinking.
Personally, I'd like to see a cost benefit analysis, a time motion study and a budget forecast that looks at
comparative advantages and disadvantages of keeping a ceremonial Monarchy element to our Constitutional
Democracy. In fact, I'd like to see three independent financial assessments so a judgement might be based on
a proper weighting of al three -hopefully ironing out the usual biases, unsatisfactory assumptions and
mathematical gaffs. On balance, and only if the numbers stacked up, I'd be inclined to an option that adds value
to the benefits and minimises the costs of the option. I suspect that on proper financial analysis it would be hard
to split any of the options of Prince Frederick and Princess Mary, the option of Boomaroo de Bono the First
(and only) or an Australian of the Year such as Patrick McGorry, whilst the keeping faith with the Windsors would
fall a fair way down the list, except on purely sentimental grounds.

Opinion 9: The Constitutional Role of the High Court of Australia needs to be enhanced (as in the
constitutional democracies in India and South Africa) by creating a separate Constitutional Court out of
the High Court. The constitutional umpiring role needs to be separated out of the federal criminal and
civil jurisdictions which the High Court of Australia has shared with the 'new' Federal Court of Australia
created by the Gough Whitlam government
We saw a small example of the governmental role of the High Court of Australia, as the umpires of the
Constitution, in the unprecedented and extraordinary Full High Court of Australia judgment (without reasons)
handed down at midday on 6 August 2010 in Rowe & Anor v Australian Electoral Commissioner & Anor.
Such cases normally take 2 ½ years. This one was Judged in as little as 2 ½ weeks. Curiouser and Curiouser.
How and why did this case get up in such an unprecedented and extraordinary hurry? And who were the
faceless men and women that were really behind it? True patriots? Fighters for democracy? Really?
The practical upshot of this case was that 100,000 (mostly 18 – 20 year old, and Green voting) eligible voters
were allowed to register and vote on 21 August 2010. It is not unreasonable to suggest that their votes (and
especially their final preferences) will be largely responsible for determining the election outcome for at least
one out of the 1550 seats that were up for election. These additional voters might well be responsible for
getting independent Andrew Wilkie elected in the Tasmania Seat of Denison, which takes in the University of
Tasmania at Sandy Point, Hobart (and lots of 18 – 20 year old voters).
But what of the other 1.2 million Australians who did not vote on 21 August 2010 and, significantly, whom the
Government would have refused to let vote on 21 August 2010 if they had turned up at a polling booth and tried
to do so? Is refusing to let eligible Australian's vote another class of Government violation of the Constitution?
What kind of government makes it a crime, punishable under criminal laws, to openly abstain from voting and
even then fails to do everything possible to enable eligible voters to avoid becoming criminals under those laws?
Are compulsory voting laws – criminalising non-voters with fines leading to jail terms once prosecuted –
constitutional? Very few of the worlds 194 nations use criminal laws to force citizens to vote – and the few that
do are not the sorts of nations that Australia or most developed nations like to be compared? Parliamentarians
do not become criminals, do not become punishable for contempt of parliament or under specific election laws
made by Parliament, for abstaining from voting inside the parliament house. So how can voters become
criminals punishable under specific parliamentary election laws if they abstain from voting in the voting house? I
am pleased to see many radio programs, newspaper articles and on-line forums discussing these basic issues.
In the very near future, the Full High Court of Australia will be given the opportunity to rule on these questions?
The Court will also be given the opportunity to rule on the duties and functions and actions of the Governor-
General, Lady Quentin Bryce, should it be desirable in the interests of democracy for them. Unlike the actions
of her predecessor, the late Sir John Kerr in 1975, it will not be left to the ruling liberal and labor party machines
to decide not to 'go to the constitutional umpires'. Fortunately there are enough concerned citizens in Australia
2010 to pursue proper constitutional involvement of the judicial arm of government, independent of the ruling
two-party political machines, should Lady Bryce act in any way non-ceremonially “in the present circumstances.”
Closing Comments
By way of closing comments I offer the words of Emeritus Professor Donald Horne (the last paragraphs of
Chapter 7 ('Men with Power' ) from his 1964 Australian best seller “The Lucky Country”, followed by some
opening comments from Gough Whitlam's 1957 Chifley Memorial Lecture “The Constitution versus Labor”
(which presumably Professor Horne had uppermost when writing his “The Lucky Country” some 5 or 6 years
later.

Emeritus Professor Donald Horne(writing in 1964):
“... The public emptiness of Australian politics comes from its lack of intellectual strength. Not
only, as in the United States, are intellectuals normally deprived of access to top policy
decisions, when elsewhere in the modern world they have considerable influence on political
events, they also lack the enormous range of opportunity, available in the United States, for at
least being hangers-on to those who decide top policy, ghosting speeches, testing opinions, and
so forth. Australian politics does without these frills; i f intellectuals want to walk down the
corridors of power in Australia they must leave their intellectuality at home. As in business, to
pretend to some stupidity is safest. However there is some reason for believing that some
intellectualization of issues now in Australia would not only interest people's imaginations in the
problems they might face; it might even win votes.
In both political parties, during the Age of Menzies there was an archaic flavour in political
affairs, a sense of this might have been happening at some earlier period in history. Even for
Australia the deadness was remarkable. Politicians seemed pompous and out of touch. They
seemed to be conducting a political debate that they had read about in an old book. There was
little sign of a breakthrough that could, in contemporary idiom, dramatize Australia's new
challenges. Politicians did not project the symbols of modern life. This may be partly because
men of the Menzies-Calwell generation became virtual exiles in their own century; and partly
because the distrust both parties have for intellectuals cuts them off from much analysis of what
the world and Australia are now supposed to be about. Australian politicians – especially the old
and powerful – do not keep up with their reading.
Parties, like human beings, need some 'philosophy', some sense of purpose and identity to
keep up their interest in their environment so that they can react to events in a contemporary
way. In both parties in Australia a contemporary sense of identity has been lost. that is why a
whole younger generation of Australians of the kind who normally might now be revitalizing
political life are more likely to despise the whole set-up.”
E.G Whitlam (speaking in 1957):
“What part is the Labor Party to play in Australian politics? The Party's humanitarian objectives
have met with considerable success. They are accepted by its political opponents. The
widowed and fatherless, the veteran and superannuated may still be poor but they are no
longer destitute. Society accepts the challenge of unemployment. Some of the more venerable
Liberals tell us from their counting houses that the Labor Party should henceforth accept the
capitalist basis of society. They say that the Liberals and Labor should be like the Republicans
and the Democrats in the United States or the Conservatives and the Liberals in Canada, who
have been described as being like two bottles, exactly identical in capacity, bearing different
labels – and both empty...”
Best wishes
JAMES JOHNSON
THIRTY-ONE RECOMMENDATIONS FOR FURTHER READING AND WATCHING
1. “On Australia's Constitution” by E.G Whitlam (1977, Widescope)

2. “Family Court” speech by Rocher, T, Deputy Speaker of the Australian House of
Representatives, 17 June 1997 (Australian Parliamentary Hansard, at page 5205):
http://www.scribd.com/doc/35318445/RocherAPHHansard19970617High-Res-A4
3. “1984” (1956 Movie Directed by Michael Radford and staring John Hurt based on the 1949 dystopian
political satire of the same name written by Eric Arthur Blair under his pseudonym “George Orwell”);
4. “Animal Farm” (1999 Animated Movie based on the dystopian allegorical novella of the same name
written by Eric Arthur Blair under his pseudonym “George Orwell”);
5. “Minority Report” (2002 Movie Directed by Stephen Spielberg and staring Tom Cruise, loosely based on
the science fiction neo-noir short story “The Minority Report” by Philip K Dick);
6. “Thought Crimes” (2003 Movie Directed by Breck Eisner, staring Navi Rawat);
7. “Alice's Adventures in Wonderland” (1865) by Reverend Charles Lutwidge Dodson (under his
pseudonym Lewis Carroll) (2010 movie directed by Tim Burton starring Johnny Depp and Helena
Bonham-Carter);
8. “Empire: How Britain Made the Modern World” (2003) Ferguson, Niall (Penguin Books);
9. “The Captive Republic A History of Republicanism in Australia 1788 – 1996” (1996) McKenna, Mark
(Cambridge University Press);
10. “Rooting Democracy: Growing the Society We Want” (1997) Rayner, M (Allen and Unwin);
11. “The Lucky Country” (1964) Horne, Emeritus Professor Donald (Penguin Books);
12.“Why I want to be King of Australia: Lateral Suggestions for a New Millennium” (1999) De
Bono, Edward (Penguin Books);
13.“The Fatal Shore: A History of the Transportation of Convicts to Australia, 1787 - 1868”
Hughes, Robert (Vintage Books);
14. “Fathers 4 Justice: The Inside Story” (2007) O'Connor, Matt (Weidenfeld & Nicholson);
15. “Police and Government: Histories of Policing in Australia” (1994) Finnane, Mark (Oxford University
Press);
16.“Politics on Trial: Five Famous Trials of the 20th Century” (2003) Kunstler, William (Ocean
Press);

17. “The Annotated Constitution of the Australian Commonwealth” (1900) Sir John Quick & Sir Robert
Garran;
18. “It's Your Constitution: Governing Australia Today” (1998) Saunders, Dr Cheryl (Federation Press);
19.“The Great Constitutional Swindle: A Citizen's View of the Australian Constitution” (1999)
Botsman, Peter (Pluto Press);
20.I Fear for my Country” Botsman, Peter (2010)
21.“The Five Thousand Year Leap: 28 Great Ideas That Changed the World” (2009 - 30th
Anniversary Edition) Skousen, W. Cleon (American Documents Publishing);
22. “A New Constitution for Australia” (2002) Harris, Bede (Cavendish Publishing);
23. “A Vindication of the Profession of Law and those who Profess it” (1643) Cook, J (private manuscript);
24. “Serial Liars: How Lawyers Get the Money and Get the Criminals Off” (2005) Whitton, Evan (Lulu);
25. “Inside Lawyers' Ethics”(2007) Parker, Christine and Evans, Adrian (Cambridge University Press);
26. “A Bill of Rights for Australia” (2004) Williams, Professor George;
27. “Justice Game” (1998) Robertson, Geoffrey (Vantage Books);
28. “Crimes Against Humanity” (2003) Robertson, Geoffrey (Vantage Books);
29. “The Tyrannicide Brief” (2008) Robertson, Geoffrey (Vantage Books);
30. “A Statute of Liberty: How Australians can get their Rights Back” (2009) Robertson, Geoffrey (Vantage
Books);
31. “The Magna Carta Manifesto” (2009) Lindbaum, Peter (UCLA Press).
- o0o -


Letter To Lalor 20100826

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H J AMES J OHNSON

A USTRALIAN H OUSE OF R EPRESENATIVES

Thursday 26 August 2010

My fellow constituents of Lalor By Twitter and Facebook

MAIL: PO Box 6137 Point Cook Vic 3030 james@jamesjohnson2020.com :EMAIL

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Opinion 4: The Australian Constitution is 'Federalism' not 'Westminster'

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This kind of situation could never occur in a Westminster System of government.

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Opinion 8: Australia is a Constitutional Democracy with a Ceremonial Monarch. Australia is a

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E.G Whitlam (speaking in 1957):

THIRTY-ONE RECOMMENDATIONS FOR FURTHER READING AND WATCHING

1. “On Australia's Constitution” by E.G Whitlam (1977, Widescope)

MAIL: PO Box 6137 Point Cook Vic 3030 james@jamesjohnson2020.com :EMAIL

MAIL: PO Box 6137 Point Cook Vic 3030 james@jamesjohnson2020.com :EMAIL

20.I Fear for my Country” Botsman, Peter (2010)

26. “A Bill of Rights for Australia” (2004) Williams, Professor George;

27. “Justice Game” (1998) Robertson, Geoffrey (Vantage Books);

28. “Crimes Against Humanity” (2003) Robertson, Geoffrey (Vantage Books);

29. “The Tyrannicide Brief” (2008) Robertson, Geoffrey (Vantage Books);

MAIL: PO Box 6137 Point Cook Vic 3030 james@jamesjohnson2020.com :EMAIL

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