Historian David Lewis, in reply to Graham Paterson''s recent IA article, examines the notion of Australia''s sovereignty and contends that the Constitution is in fine shape — but we should still be a republic.
IN HIS excellent and thought provoking article, ‘Let’s talk about Australia’s Constitution’, Graham Paterson makes the claim that the Australian Constitution lacks a few vital components.
Reading it, it seems to me that he is right on some things but he might have dug a little deeper to examine some of the things that makes up the sovereign nation of Australia.
Most of the things about which he is worried, have been dealt with. Whether sufficiently so is perhaps beyond my expertise but I will make the case that it is ego and incompetence, rather than a conspiracy, that have driven what he sees as a constitutional misuse.
Let’s briefly examine the great bugbear of republicans: convention. We have a prime minister through convention. The governor general does not dismiss parliament on a whim — except perhaps once (Whitlam, 1975) or twice (Lang, 1932). The leader of the opposition is a loyal opponent of the government – not an opponent of the Crown – rather than a nefarious figure that drives down everything. As this definition states:
‘A convention is an unwritten rule, not a law. It is an accepted way of doing something.’
Republicans tend to worry about conventions — they argue, not unreasonably, that conventions can and have been broken. I will return to this.
More seriously, perhaps, Paterson argues that Australia is deeply beholden to Britain. He claims that the Act of British Parliament known as the Australian Constitution does not give us sovereignty. I think here he is mistaken. Let me explain.
Certainly, he makes what seems like a fair point when he states the Queen is a foreign person and Australia lacks sovereignty while we pledge allegiance to her. However, the Queen is not “foreign”. She resides in England, yes — and her personal loyalties are likely English, or at least British. My assessment is that she is not British, she is not a British citizen — she is the Queen. But Australia actually sees her as a representation of the Crown.
Graham Paterson takes a look at Australia''s Constitution. https://t.co/wUx9zJDP6x
— IndependentAustralia (@independentaus) December 17, 2015
Some interpretations give her the nationality of the country she is representing. But this falls down at CHOGM. She has no nationality. The Crown is represented in Australia by the governor general. It must be said that some disagree and there is a legal interpretation which states the Queen can overturn a law assented to by the governor general within 12 months of its assent. For reasons I’ll soon get to, this will never happen.
Does Australia have sovereignty? This is a complex and convoluted question. We need to go back to 1901, 1926, 1931, 1943 (briefly), 1948, 1983 and even 1999. In 1901, Australia moved to a federal system: six independent states decided more or less to constitute a federal government to look after some of the challenges of a large continent, with a monolithic legal basis.
Certainly, despite the multicultural social fabric of Australia, all state governments based their legal approach on a British legal system. So, a Federal government based on British law, in a geopolitical context which was somewhat hostile including a United States which was not to be trusted, made some contextual sense to a quite but by no means completely patriotic British audience. In any case, the ruling elite favoured the British model.
Now, the Constitution is one document. For a country to be recognised as an independent sovereign nation, every other nation in the world must also recognise it. This is obviously not the place to discuss the pros and cons of Taiwan, Tibet, Palestine and other states.
So, how did Australia get legitimacy as a nation-state that was not just a part of Britain? The 1926 Imperial Conference was to sort this out. For all the wrong reasons, Keith Murdoch and C. E. W. Bean were correct — World War One did forge Australia as a nation, but not because of Gallipoli. The British Empire was broke and it couldn’t maintain an Empire any more.
Margaret Thatcher was wrong too — she attributed the Empire’s decline to World War II. The Balfour Declaration essentially was the first step in Australia’s recognition as a sovereign nation. It was warily accepted by conservative forces in Australia. It didn’t give too much away but allowed for the fact that the world had changed. What some Australians wanted was a safe empire, in which the empire was a mega federation, in which the UK parliament was primus inter pares, or first among equals.
The Statute of Westminster 1931 codified this. Now, pro-empire forces in Australia fought this. They prevented its ratification for 12 years but it was really a reflection of a world change. The UK was tired, broke and by 1939, involved in another war, which Australia also joined.
In 1948, The Chifley Government brought in another key element of independence: citizenship. Until 1948, you were a British citizen, despite the fact that Britain was trying to remove its influence on Australia. Australia was again “forced” into it. The ability to be an Australian citizen allowed for the great migration here, which was the beginning of a long process to revoke the first piece of legislation passed in 1901 — the White Australia Act.
This was finally revoked in the 1970s but the chipping away started in 1948. Both sides of politics did their bit, though it was the Whitlam Government that finally did it, with the stake driven through the heart by the Fraser Government.
In 1986, the Hawke Government introduced the Australia Act — they tried and failed to bring in an identity card via referendum. One point Paterson misses about the failed referenda, is how many of them were unfeasible and unwinnable. The Australia Act stopped all appeals to the Privy Council and prevented all Australian legislation from having to be ratified in the UK parliament. This placed an Australian court – the High Court – and not a British court as the supreme legal authority for Australian law.
Here is where Paterson stumbles — the Australian Constitution may have weaknesses, but it is one important document within a context of several others. Australia is a sovereign nation. It is independent, at least in theory. If it does not practice independence, it is not because it is not legislatively set up to do so but because our leadership has either been weak or stymied. This leads me back to convention.
What happens to those who break convention? Well, as no law has been broken, consequence is difficult to mete out. But another one of my research interests is the folk tradition and it seems to me, convention is the formal part of the folk process. Convention tells us what is right and what is wrong.
Those who flaunt convention, get punished. Look at Sir John Kerr and Tony Abbott. Both men threw convention out the window — Kerr in his dismissal of Gough Whitlam; Abbott in his approach to parliament, government and international relations. Kerr lived as a virtual exile, essentially disgraced. As for Tony Abbott, even having the softest press of any prime minister was not enough to see him crash out after a dismal not-quite two years. He is now writing angry letters to the Editor, rather than adding to the national debate after a dignified period away.
Am I a monarchist? No. I would like to see Australia free of all ties to the U.S. and Britain and not run by a wealthy elite who have their own interests at heart. But before we start changing a document that could work well if used properly, we should look at using that document to remove the leaners and “spivs” from our parliamentary representation and actually face up to our responsibilities as a sovereign nation. That might give us a republic worth living for.
David Lewis is an historian and musician based in Sydney. You can read more from David at dlew919.com or follow him on Twitter @dlachlan.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License
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