4.  The Attack on the Federal Constitution


Melbourne Argus, June 11, 1949.

The Fourth in a series connected with a study course conducted by the Victorian League of Rights.

The fundamental British idea of government is not that it is an end itself, but merely a means to an end.  And, further, that although a majority vote, particularly in small decentralised political units, is a satisfactory way of electing a Government, it is essential to have constitutional safeguards which strictly limit the power of Govern­ments and which guarantee to the individual certain basic rights which no Government, irrespective of the size of its majority, can take away.

If the idea of the Omnipotent Government is allowed to grow unchecked, then the time will surely come when Governments, having gone through the procedure of obtaining a majority of votes, will claim, for example, that they have the “democratic” right to put their political opponents to death.  If Governments are not to be limited by any constitutional restrictions and by what our British fore­fathers termed [Natural] Law, then men will no longer hold their lives on lease from God but from the State.

Sir Hartley Shawcross, the Attorney-General of the British Socialist Government, epitomised the totalitarian conception of government when he said in 1947 that the power granted to the Government by the Constitution “depended entirely on convenience and expediency.”  Dr. Evatt, speaking at Canberra on October 1, 1948, put the matter even more bluntly: 

“I desire to make it per­fectly clear that the amendment (to the Constitution) I propose will give the decision to Parliament itself, and no person will be able to challenge the validity of Parliament’s decision.”

The Function of Government.

In considering the legitimate function of government, it is essen­tial to realise that British constitutional developments have always conceived of the powers of Governments as being a grant from indi­viduals to Governments for the purpose of clearly defined tasks.  The idea of Governments actually governing people as if it owned them, and of passing a never-ending stream of legislation to restrict their activities and liberties, is totalitarian and alien to genuine British tradition.  It has been wisely said that the best governed communities are the least governed communities.  Government should merely be a general committee for a community, with strictly limited and defined powers, through which individuals can lay down general rules, the fewer and simpler the better, which they consider necessary to govern their associations for their particular areas.  For example, it is not the function of Governments to provide the individual with security from “the cradle to the grave,” but to remove any artificial barriers, political, economic, and financial, which prevent the indi­vidual from providing himself with genuine independence.

Federal Governments should not meddle in matters which can be best attended to by local Governments, while no Government should attempt to do for the individual what he can best do for himself.  All policies should be designed to give the individual greater self-determination.

Those people who attack the Australian Federal Constitution ignore the fact that this Constitution was a grant of special powers from the States to the Federal Government.  The same as individuals are more important than government of any description, which exists to serve them, so was the Federal Government created to serve the States.  The framers of the Federal Constitution attempted to embody in it what their British forefathers had learned about Governments over centuries.  They realised the menace of centralised government, particularly in a large country like Australia, and the necessity of preserving local, decentralised Government.

Although the framers of the Federal Constitution did their best to produce a written Constitution which would effectively limit the powers of the Federal Government, from the very start of Federa­tion the natural tendency of all Federal Governments to centralise power has resulted in the powers of the States being weakened either by amendment to the Constitution or by the devising of ways and means to by-pass the Constitution.  The first major blow at State sovereignty was the passing of the 1928 Referendum, which severely limited the financial powers of the States.  Uniform taxation re­moved the last vestige of the States financial sovereignty.

The Constitutional Barrier.

In spite of the steady increase in Federal powers at the expense of the States, the Federal Constitution is still a major barrier to the creation of the Socialist centrally planned society in Australia.  Since their election to office early in the war, the Labour-Socialists, under the guidance and instruction of Dr. Evatt and the Canberra economic planners, have consistently tried in various ways to break down the constitutional barrier to their totalitarian proposals.  It will be re­called that Dr. Evatt insisted at the 1944 referendum, which he thought the people would support because of war-time conditions, that the power over employment was the major power sought.  Man­power control is a central feature of the complete Socialist economy.  Having been defeated at the 1944 referendum, Dr. Evatt went to the San Francisco United Nations conference in 1945 and campaigned vigorously for the inclusion of two articles, 55 and 56, which he had drafted in the United Nations Charter.  These two articles pledge all members of the United Nations to legislate for “full employment.”

Both while on the High Court and since becoming a Federal politician, Dr. Evatt has made it clear that he believes that the treaty-making powers of the Federal Government enable it to enter into international agreements on employment and other matters, and then to use these agreements as a basis for legislation for the whole Commonwealth.*

The framers of the Federal Constitution never visualised this type of back-door method of attack upon the Federal Constitution and States.  But then they knew nothing about the totalitarian nature of Socialism and the methods its advocates are prepared to use to further their aims.

Control of Banking.

In 1945 the Labour-Socialists opened up another avenue of assault on the Federal Constitution with their banking legislation.  The Federal Constitution prevents the Canberra Socialist planners from obtaining direct control of production and distribution, but it is hoped that by centralised control of the banking system and credit creation and issue, a major step can be taken towards the Socialist goal.  Clause 27 of the 1945 Banking Bill is a clear indication of the real intent of this legislation.  It states:

“(2) … the Commonwealth Bank may give directions as to the classes of purposes for which advances may or may not be made by banks and such banks shall comply with any direction given.”

The appointment of Dr. H. C. Coombs, advocate of the restriction of individual liberties and the centralisation of power, as governor of the Commonwealth Bank is significant.  The bank nationalisation proposals merely seek to extend the centralisation of banking policy initiated in 1945.

In 1946 the Labour-Socialists conducted another referendum for greater powers, this time shrewdly holding the referendum at the same time as the Federal election.  This strategy was very nearly successful, the proposed constitutional amendments concerning or­derly marketing and employment being only narrowly defeated.  However, the social services power was unfortunately carried.  It is this power that the “free” medicine and national health schemes are based upon.  The totalitarian intent of the national health scheme is alarmingly obvious.

Before the 1940 referendum the eminent constitutional lawyer, Mr. F. Villeneuve Smith, K.C., gave his views on the proposed social service amendment as follows:

“The proposed amendment would add immensely to the power of the Federal Parliament to legislate so as to limit the freedom of the individual.  Subject to whatever may be found to be the meaning of the words ‘but not so as to authorise any form of civil conscription,’ this power would authorise the Federal Government to seize complete authority over the legislative area of each of the specified subjects to the exclusion of the State Parliament, and impose such conditioning and restrictions upon the medical and dental professions as to make them indistinguishable in anything but name from nationalised professions, i.e., virtually ser­vants of ‘The State.'”

Guaranteeing Individual Rights.

All liberty-loving citizens must realise while there is still time that neither parties nor governments can guarantee them their indi­vidual rights.  It is a Constitution which guarantees the individual’s rights and liberties, and curbs the will-to-power which is inherent in all governments.

Every effort must therefore be made to encourage all electors to understand this fundamental issue in order that they can success­fully unite to protect existing constitutional safeguards and to have introduced any additional safeguards found necessary to halt the totalitarians.

On the Isle of Runnymede 734 years ago, our British forefathers successfully dealt with the totalitarian King John, who was com­pelled to sign Magna Carta.  The modern totalitarians must be confronted with an enlightened electorate demanding a restoration of their ancient traditional British and Christian rights.

A new Bill of Rights will have to be introduced before this matter is successfully resolved.

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*  In the Labor Conventions Case, the judicial committee of the Privy Council, at that time Canada’s highest appeal jurisdiction, stated that the federal government could not, by signing treaties, give itself powers not conferred upon it by the Constitution.  In other words, it could not assume powers belonging to the Provinces.