Law

Let's talk about Australia's Constitution

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(Image via abc.net.au)

Graham Paterson presents a hypothetical conversation analysing Australia's Constitution and sovereignty status.

Me: We, that is, you and I, have a problem.

You: Yeah, so what? We’ve all got problems.

Me: Actually, the problems I’m talking about, you probably don’t even know exist.

You: Well they can’t be a problem then, can they?

Me: If you don’t consider living your life in perpetual debt as a problem, then you’ve got no worries.

You: Yeah, that is a problem, but what can I do about it?

Me: If you were to read the British Act that we, Australia, use as our Constitution, you would see what you could do about it.

You: What, me, read the Constitution you’ve got to be joking?

Me: Why would I joke about that? The Constitution is the one single law that gives the government the authority to make the thousands of other laws that swamp our lives.

You: Yeah, but there’s nothing I can do about that.

Me: If you want to get out of perpetual debt, there are couple of things in there that could do that for you.

You: Don’t give me that crap. If that were true, why hasn’t anyone done something about it?

Me: History, I guess. Plus a lot of ignorance. Maybe, that’s not quite true. There’s been a pretty well organised cover up over the last hundred or so years, to make sure very few people ever got to read the Constitution.

You: I’ve never read it, in fact, I’ve never even thought about it.

Me: You, and probably 95 per cent of the rest of the population. As far as the government is concerned, ignorance is bliss, and the less you know the better it is for them.

You: You telling me this is deliberate?

Me: Were you ever taught about the Constitution at school?

You: No, but they taught us how the government works.

Me: Did they tell you about where the rules come from that allow the government to work the way it does?

You: No, not exactly. They just said, this is the way it works and that’s all we need to know.

Me: Well, the truth of the matter is, the rules come from the Constitution, but unfortunately, the rules in the Constitution are nothing like the rules the government uses to run the country.

You: That doesn’t sound right.

Me: Unfortunately for all of us, it is.

You: But we have a prime minister, and a governor general, and all the government departments. That’s good enough for me.

Me: What if I were to tell you there is no such position in the Constitution as a prime minister?

What if I were to tell you, the governor general, who also happens to be the commander in chief of all the armed forces, can open and close parliament when he likes? That he can withhold giving agreement to any legislation; that he only needs to take advice from some selected politicians – whom he chooses and appoints – but can make any decision he wants on any matters?

What if I were to tell you there was nothing about political parties in the original Constitution, and there is almost nothing about any rights for the people?

And, what if I were to tell you that this Constitution has never been voted on by the people in Australia because, the original draft that was part of the referendums in 1899 and 1900, was changed by the British government before they would allow the draft to be submitted to their parliament?

You: That all sounds like a heap of hogwash.

Me: Well, there you go ignorance is bliss.

You: So, what are you saying? Parliament doesn’t operate by the rules?

Me: Yeah, that’s right certainly not by the rules set out in the Constitution.

You: But that can’t be right. Isn’t the Queen supposed to be in charge and would stop that happening if it were true?

Me: Well, if you are going to bring the Queen into it, which Queen are you talking about?

You: What do you mean? The Queen of England, of course.

Me: Ahh, but one moment she’s the Queen of the UK and the next she’s the Queen of Australia. Which one do you mean?

You: Well, I suppose, the Queen of Australia.

Me: You must have been one of the lucky ones, then. Did you get an invitation to her crowning in Australia, and did you hear her promise to reign over all her Australian subjects, and make sure the government abided by the rules written and approved by the British parliament?

You: No, of course I didn’t. Did you?

Me: Well, no, because her crowning in Australia never happened. She has never been crowned as the Queen of Australia and has never had to make any promise on behalf of her subjects in Australia. The only promises she has made were to her British subjects, when she was crowned the Queen of England and all the Dominions of the UK. Australia happened to be one of the Dominions at that time.

You: This is getting weird. You aren’t trying to say we are still subjects of the Queen and that Australia is still a Dominion of Britain?

Me: Well, if you want to get all legal on me, yes that is what I’m saying.

You:That’s all bullshit. Australia is independent and has nothing to do with Britain anymore.

Me: Is that right? Just when were we made independent and how was that done?

You: I don’t know, but everyone says we are independent.

Me: Yeah but there must have been something, somewhere that changed us from the big colony we became in 1901, when the British Constitution Act was proclaimed in Sydney?

You: Well, I don’t know. That’s all legal stuff and I’m not a lawyer.

Me: Why should you have to be a lawyer to know whether you are an independent citizen of Australia, or a subject of the British Queen?

You: You are just confusing me with facts and its way off our subject anyway.

Me: Not really. It just went into what I see as our second major problem. The issue is, whether Australia is really an independent nation, or whether we are still a Dominion of the UK.

It’s simply a matter of commonsense. How can Australia be an independent nation as long as we use the law of a foreign country as our Constitution?

You: When you put it that way, it does make sense.

Me: As I said, it is really just a matter of commonsense; something that appears to be totally lacking in the minds of the legal fraternity, especially at the High Court level.

You: OK, how do we fix it?

Me: Technically, it is easy, but in practice it is a lot harder. All we have to do is to get Britain to repeal their Act, and that would force Australia to come up with their own home-grown Constitution.

You: Isn’t that is what the 1999 referendum was all about?

Me: No, that referendum simply asked if Australians wanted to become a republic, but on the basis we would automatically accept a few minimalist changes to the antiquated British Act.

You: What’s wrong with that? That Constitution has lasted for the last 100 years so, it must be OK.

Me: That’s the argument the Monarchists used and because of the ignorance about the Constitution, it proved a very successful argument.

You: So, are you saying that the Constitution hasn’t worked properly for the last 100 years?

Me: Oh, it has worked wonderfully for the politicians and lawyers but it hasn’t been anywhere near as effective for the people.

Our “founding fathers”, all of whom were politicians or lawyers (and many both) made sure there were 29 provisions in the Constitution that allowed the parliament to alter it without going to the people.

You: But we’ve had all those referendums over the last 100 years.

Me: And how many referendums have we had?

You: I don’t know. How many?

Me: If you really want the facts? There have only been 19 referendums, but the government has asked the people 44 questions in those 19 referendums. And those questions are always raised by the government and never by the people.

You: Well, 44 attempts to change the Constitution is a lot — so, that must have made a lot of difference.

Me: What does it tell you when only eight of those 44 proposals to change the Constitution were approved by the people?

You: That Australians are a bloody conservative lot and don’t like change.

Me: Boy, have you been brainwashed. That is exactly what governments and the media say and the monarchists.

You: So, why isn’t that true?

Me: Well, if you were to do a bit of research and look at the proposals put up by the government, almost every one of them was aimed at giving the government more control. Only a few of them could be considered neutral, or in the interests of the people.

You: So, it is only those few that got passed by the referendums?

Me: Exactly — and when you look at it that way, what does it say about the people?

You: I guess it says, the people don’t want to give the government any more power than they already have.

Me: Yes — and isn’t that more an act of commonsense rather than being conservative?

Graham Paterson is a retired engineer and author of two books on the Australian Constitution. You can read more about Graham on his website: aussieindepence.com.

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