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The Australian nation and its stability exists despite our limited, vague and racially discriminatory Constitution, says managing editor David Donovan. We must seize the opportunity to create a relevant, inspiring and inclusive statement of Australian nationhood in place of this highly flawed document.
Rewriting the Constitution in 1891
Some people try to sell the outrageous deceit that the Australian Constitution is the best in the world; that it is the pillar our nation rests upon.
Nothing could be more absurd or untrue. Our nation exists despite the Constitution, which did nothing more than amalgamate the different Australian colonies into a super colony, largely for business reasons.
That’s right, our Constitution is really a slightly glorified trade document, written in the most banal and uninspiring way imaginable, put in place largely to removes tariffs between the various states. It was an early version of a free trade agreement, also including a loose Federal arrangement to administer the trade agreement, quite similar to the European Union.
It is a slightly startling fact, indeed, that the vast majority of the attendees at the 1898 Constitutional thought it was perfectly acceptable to discriminate in the Constitution on the basis of race. This was enshrined in the document they produced in s51 (xxvi), where the Parliament was empowered to make laws with respect to:
“The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws”.
One of the main architects of the Constitution, Australia’s first Prime Minister, Edmund Barton, expressed the prevailing view by arguing in 1898 that s51(xxvi) was necessary to enable the Commonwealth to
“…regulate the affairs of the people of coloured or inferior races who are in the Commonwealth”.
Some people will say that we should celebrate Australia Day on January 1, to recognise the day our nation came into existence. But this would be nonsensical, because Australia did not become an independent nation on January 1, 1901, the day the Australian Federation began.
The enacting provisions of the Australian Constitution – an Act of the UK Parliament from July 1900 – are quite clear about Australia’s status as a British colony after Federation, when it declares that the states of Australia had
“…agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland…” in a “self-governing colony”.
Let’s repeat that: a “self-governing colony”; that’s all we were in 1901.
These days, we often regard ourselves as a fully independent nation. In the minds of many people, despite what our Constitution actually says, at some stage since 1901, we have attained full sovereignty — so the argument goes . The parts of the Constitution that seem to indicate we are still a colony, such as that our Governor General is appointed by and answerable to a foreign monarch are simply ignored or forgotten. We are good at forgetting inconvenient facts in Australia — such as the genocide in Tasmania, or the fact that there were people living in Australia before white settlement — for a mere 60,000 years.
There is a group of people I like to call “Constitutionalists”, who sometimes try to hide their overriding enthusiasm for our foreign royal family behind the myth of our infallible Constitution. They call it “the envy in the world!”. The truth is, not a single country in the world envies our dismal, virtually unreadable, Constitution.
The main problem with our Constitution is that a literal reading of our Constitution simply does not yield a clear picture of our system. In fact, it is not even close. Constitutional lawyers and judges simply ignore or work around the parts that they don’t like, or think don’t really apply to us any more, creating a plethora of unwritten “Conventions” to fill the gaps.
For example, s.61:
“The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative….”
Then, in s.62:
“There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General…and shall hold office during his pleasure.”
In s.69, some Executive powers are listed, including communications and defence. The Governor-General (G-G) is also specifically declared to be Commander-in-Chief of the naval and military services (s.68).
So, anyone reading this would think that in our system the Queen is our supreme ruler and the G-G a mighty viceroy, while the Cabinet is but a toothless gaggle of advisors. And the Prime Minister (PM) is simply nowhere to be found.
In practice, the G-G does not exercise his express powers. By the so-called convention of ‘responsible government’, these powers, and others, are untilised by the Cabinet.
Conversely, although the G-G has express powers he doesn’t exercise because of some unwritten rules, he has some fairly limited powers (‘reserve powers’) he does sometimes use. But these powers themselves are unwritten and complicated, rather, by the fact no-one is altogether sure what they actually are.
The Parliament House website describes the situation:
“The scope of the reserve powers is uncertain and their use has proven contentious. This is in part because the Australian model of government relies on unwritten rules or ‘conventions’ to flesh out the ‘bare bones’ of the Constitution. It is thus (by convention) accepted that there must be an office of PM and a Cabinet even though their existence is not constitutionally mandated. Likewise, not all the powers of the G-G are codified in the written Constitution and many of them are similarly constrained by such unwritten rules. A further complication is the difficulty of determining when mere custom and practice attains the status of a convention.”
The reserve powers are generally seen as the powers to appoint a PM in a hung Parliament; dismiss a PM after a successful ‘No Confidence’ motion; and the (most frequently used) power to refuse to dissolve the House of Representatives contrary to Ministerial advice.
More doubtful are the powers to refuse a double dissolution; veto Bills Parliament has passed; use discretion to select a new PM when the outgoing PM resigns after a defeat in the House of Reps; and to dismiss a PM in circumstances where the Government cannot obtain supply and the PM refuses to resign or to call an election (the controversial Kerr power).
Thus, the Constitution is hazy: what it says is not always what it means, and what it has been held to mean, it frequently does not literally say.
The facts here make a mockery of a tired argument we often hear used to deter Australians from altering our Constitution — that it would somehow result in the downfall of Australia civilization. The Constitution is, quite self-evidently, an imprecise document that has flourished merely by being interpreted with common sense, and quite considerable creativity, by our legislature and jurists. Uncertainty exists – as it would if we created a new document – but still we remain one of the most stable nations on earth — because of who we are as a people.
Common sense, creativity, stability and restraint are keystones of the national character. And that, rather than our Constitution, is the real reason why we enjoy one of the oldest and most secure democracies in the world. To think that our greatest legal and legislative minds could not, or would not, swiftly place a sensible and fair interpretation on any amendment to our Constitution flies in the face of history, facts and reason. Claiming Australia would lose stability by changing the Constitution – a largely unwritten document – insults us all and mocks our intelligence, for it is totally and transparently untrue.
We should seize the chance to assert our sovereignty and nationhood in a forthright and unambiguous way, as also accept the long overdue opportunity to scrap our current colonial Constitution and write a Jeffersonian document that reflects the way we are truly governed – and the way we truly want to be governed. One that includes the input of Indigenous Australians, and may perhaps include a Treaty, or provide for a Treaty that works in conjunction with the document. One that is not divisive, or discriminatory, and allows Australia to move on from its shadowy colonial past to become a truly democratic, inclusive and unambiguously independent nation.
8 Comments
DAVID MENTIONS THE ‘C’WORD.
David, thank you for exposing the truth about our Constitution – and for exposing it as the racist and bigoted document it is.
It is shameful that this document that is beholden to a foreign monarchy that itself enshrines religious bigotry, has been allowed to represent our ‘ brand ‘ internationally.
Nothing in it is memorable. I doubt whether any Australian could quote a single word of it. Or would want to.
I’d love to hear what so-called ‘ ordinary ‘ people would like to see enshrined in our Constitution. As you point out, it is the Australian people who have somehow collectively got us to where we are today – rather than any adherence or even awareness of the inadequate and offensive Constitution.
It is offensive not only to our indigenous Brothers and Sisters – but to all of us who believe
that equality is the birthright of all human beings.
As soon as Billy Mc Mahon had the 1967 referendum settled. He seemed to have all sorts of Corporations lined up to tap into rescources that were on reservations. I remember Groote island manganese going cheap to the Swiss.
The 14th Amendment of the US Constitution has been abused by corporations and their personhood legal fiction that I fear your cause is confronted by untold power that has demonstrated this week that they can bring elected governments to heel.
When corporations can avoid criminal responsibility for their actions, and do so with the active or complicit support of governments, and whistleblowers and citizens who attempt to hold corporations and governments accountable, are criminalised and prosecuted by governments, democracy is nothing but hollow rhetoric.
The referendums held 1n 1911, 1913, 1919 and 1926 were designed to enhance the power of the Commonwealth over the economy, especially in relation to trade and commerce, corporations and monopolies. They were all rejected.
Yet The high court was able to amend by judicial decision, and enlarge the scope of Commonwealth in relation to corporations power (section 51 (xx) of the constitution). In Strickland v Rocla Concrete Pipes Ltd (1971), the High Court overruled its earlier decision in Huddart, Parker &Co Pty Ltd v
Moorehead (1908) thereby rendering irrelevant the four failed referendums at which the people had been asked to do the same thing.
My point is to stand any chance of denying corporate Directors any further control over the people’s rights, or indeed gather any more power to themselves.
Right now the people who run corporations hide from the law behind this legal fiction, to the detriment of the organisations they are bound to represent , society and their shareholders
As things stand, Corporations are defined as a ‘Natural Persons’, the very term you want to use to exclude corporations from the Tasmanian Charter.
The history of corporations’ powers go back beyond the first “tea party”. The Americans fought a war of independence over this issue. Yet they lost that war finally in 1886 when their Supreme Court handed the new rules over to Roscoe Conkling’s benefactors some 15 years before we had our constitution approved by Queen Victoria.
The idea that the average Australian will have any say at all in the exicution of a new constitution is just so ridiculous. The UN will write our new constitution no matter what you see on television. If you continue to listen to politician, give them any validity what so ever, you are going to be sorry.
Tess says that she’d love to know what the ‘ordinary’ Australian wants enshrined in our Constitution. Well, as an an ordinary Australian, my personal view is that the Constitution should guarantee absolute freedom from racial discrimination. Meaning that no person, of ANY racial background should be discriminated against – or for – on the basis of their race. Australians of all ethnic backgrounds should be regarded as equal, full stop.
So, does this mean we shouldn’t help those who are disadvantaged? No. But disadvantage is not the sole preserve of one racially-defined group or another – so if we’re going to address disadvantage, let’s not make it a purely racial issue. Fight the problem directly, rather than assuming it’s a problem that comes with your genes. Such approaches are outdated and have clearly failed.
Dear DAVE IRONSIDE, you put forward an interesting aspect, for sure – and one that needs to be considered and debated in full – thanks for bringing thissalient point to the conversation here.
Dear DAVE IRONSIDE, you put forward an interesting aspect, for sure – and one that needs to be considered and debated in full – thanks for bringing this salient point to the conversation here.
I couldn’t agree more David, the constitution is badly in need of rejuvenation to include both acknowledgment of our Aboriginal past and to update citizens rights including a bill of rights. It has served its purpose for 220 years however it is quickly arriving at its use by date.