Our vaguely discriminatory colonial Constitution

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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.

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.

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