Indigenous recognition - Part 3: Australia's illiberal and undemocratic Constitution

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In a majestic six part series, Dr George Venturini takes an in-depth look at the proposal to recognise Indigenous Australians in the Constitution, asking whether it will produce the positive effects on reconciliation hoped for.

[Read Part One by clicking here]
[Read Part Two by clicking here]

In this third part, Dr Venturini takes apart Australia's Constitution, which he finds is far removed from being the foundation for a modern liberal democracy.

On Recognising Aboriginal and Torres Strait Islander Peoples in the Australian Constitution: a belated homage or yet another swindle (Part 3)

Australia's illiberal and undemocratic Constitution

A quick look of the Australian Constitution reveals that, although it is technically an act of the British Parliament passed in 1900, the last vestiges of British legislative influence in Australia having been eliminated with the passage of the Australia Act in 1986.

The Constitution is, in fact, contained in Section 9 of “An Act to Constitute the Commonwealth of Australia”. The first 8 sections of the Act record that the people of the Australian colonies have agreed to unite in a federal commonwealth and that the new system of government was not imposed on the Australian people by the British Parliament.

Something else should be further said about this document, which is regarded – mostly by people who have not read it, or perhaps not understood it – as the foundation of a modern, liberal democracy.

One is reminded of Humpty Dumpty appearing in Lewis Carroll's Through the looking-glass (1872), discussing semantics and pragmatics with Alice, and saying in a rather scornful tone:
“When I use a word, it means just what I choose it to mean — neither more nor less.”

Firstly, a brief overview of the document in question.

The document is structured on eight chapters.

Chapter 1 - on The Parliament, establishes the Commonwealth Parliament as the Legislative Branch of government. In that Chapter, Part 1 establishes its legislative power in Australia and provides for a Governor-General, representing the Queen, with power to summon Parliament; Part 2 provides for the composition and election of the Senate, and the filling of Senate vacancies. It details quorums, voting arrangements and the procedure for election of a President of the Senate; Part 3 provides for the composition and election of the House of Representatives and the filling of House vacancies. It details quorums, voting arrangements and the procedure for election of a Speaker of the House of Representatives; Part 4 deals with matters applicable to both houses of Parliament, particularly the qualification of members and the privileges of the Parliament; and Part 5 deals with the powers of the Parliament and provides a list of 40 paragraphs of specific powers. This part also deals with the joint powers of the houses and the means of resolving disagreements between the houses.

Chapter 2 - on The Executive Government, deals with that branch of government which carries out and enforces the laws. It provides for the exercise of executive power by the Governor-General advised by an Executive Council. Section 64 stipulates that Ministers are to be Members of Parliament, the only section of the Constitution which refers to the system of ‘responsible’ Government.

Chapter 3 - on The Judicature, provides for the establishment of the branch of government dealing with the courts of law. Section 71 provides that the judicial power of the Commonwealth is vested in the High Court of Australia and other federal courts established by the Parliament. Other sections deal with the appointment, tenure and removal from office of judges of the High Court and other courts. Section 76 confers  power on the Parliament to determine the jurisdiction of the High Court.

Chapter 4 - on Finance and Trade, deals with these matters. One of the most important sections is Section 83 which provides that no money is to be drawn from the Treasury except under an appropriation by law. Other sections deal with customs duties, requiring that they be uniform throughout the Commonwealth.

Perhaps the most important section in the whole chapter, maybe in the Constitution, is Section 92 which requires that trade and commerce amongst the states shall be absolutely free.

Section 96 empowers the Commonwealth Parliament to grant financial assistance to the States.

Section 105A, inserted by referendum in 1929, deals with the taking over by the Commonwealth of States’ debts.

Chapter 5 - on The States, provides for the continuance of their constitutions, parliamentary powers and laws.

Section 109 provides for Commonwealth law to prevail over State law, but only in those cases where State law is inconsistent with Commonwealth law.

Other sections prohibit the States from coining money, raising armed forces or discriminating against the residents of other States.

Section 119 also requires that the Commonwealth is to protect the states against invasion or domestic violence.

Chapter 6 - on New States, deals with the procedures for the establishment of new States and provides for the surrender of territories to the Commonwealth by States.

Chapter 7 - on Miscellaneous, is made up of two sections, one dealing with the establishment of the seat of government, the other providing for the appointment of deputies of the Governor-General.

Chapter 8 - on Alteration of the Constitution, provides that proposals for constitutional alteration be initiated by the Parliament and approved in a referendum by a majority of voters Australia-wide and a majority of voters in a majority of States.

A Schedule attached to the Constitution contains the oath or affirmation to be taken by Members of Parliament before they take their seats. Presently, Members of Parliament who select to take an oath will say:
“I, A.B., do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Her heirs and successors according to law. So help me God!” 

Members who instead choose to make an affirmation will say:

“I, A.B., do solemnly and sincerely affirm and declare that I will be faithful and bear true allegiance to Her Majesty [et cetera]”

A Governor-General swears allegiance to the English monarch of the time, not to the Australian Constitution, as one would expect in a modern, liberal, democratic country.

The Constitution is interpreted and operates in two ways: literally – some sections of the Constitution are taken literally and followed to the letter; conventionally – other sections operate through a series of ‘constitutional conventions’ which vest real power in the hands of elected politicians.

Alongside the text of the Constitution, and Letters Patent issued by the Crown, such Conventions are an important aspect of the Constitution; they have evolved over the decades and define how various constitutional mechanisms operate in practice. Conventions are unwritten rules, not laws. They express an accepted way of doing something. The ‘Westminster parliamentary system’ is built around these kinds of unwritten rules. They presume that people of good reputation and character behave in an honourable way. By and large Australian ‘conservatives’ do not respect ‘labour’ people as persons of honour. This is one of the reasons why ‘conservatives’ have been preferred to the ‘labour people’ “rabble” on a three/fourth basis, since federation.

Conventions play a powerful role in the operation of the Australian Constitution because of its set-up and operation as a ‘Westminster System’ of ‘responsible government’. Some notable Conventions include the following:

1) while the Constitution does not expressly set up the office of Prime Minister of Australia, such an office developed a de facto existence as head of the cabinet. The Prime Minister is seen as the head of government. And that seems a small matter.

2) while there are few constitutional restrictions on the power of the Governor-General, by convention the Governor-General acts on the advice of the Prime Minister.

However, because Conventions are not textually based, their existence and practice are open to debate. Real or alleged violation of a convention has often led to political controversy.

The most serious and damaging case, so far, was the so-called constitutional crisis of 1975, in which the operation of Conventions was seriously tested and Conventions were violated. The ensuing constitutional crisis was resolved dramatically when the Governor-General Sir John Kerr dismissed the Labor Prime Minister Gough Whitlam, appointing Malcolm Fraser as caretaker Prime Minister, with a tacit understanding that there would be a 1975 general election. A number of Conventions were broken during this malpractice episode. These include:

1)  The Convention that when a senator from a particular State vacates her/his position during the term of office, the State government concerned would nominate a replacement from the same political party as the departing senator. This Convention was broken first by the Lewis ‘conservative’ government of New South Wales and then by the Bjelke-Petersen ‘agrarian socialist’ government of Queensland which both, ‘properly’, filled Labor vacancies: the first, with an independent and the second, with a Labor member notoriously opposed to the Whitlam Government,  respectively.

The Convention was codified into the Constitution through a national referendum in 1977. The amendment requires the new senator to be from the same party as the old one and would have prevented the appointment by Mr Lewis, but not that by Mr Bjelke-Petersen. However, the amendment states of the appointee that if
“before taking his seat he ceases to be a member of that party... he shall be deemed not to have been so chosen or appointed.”

Mr Bjelke-Petersen’s appointee had been expelled from the Labor Party before taking his seat and would therefore have been ineligible under the new constitutional amendment.

2) The Convention that — when the Senate is controlled by a party which does not simultaneously control the House of Representatives, the Senate would not vote against money supply to the government. This Convention was broken by the Senate controlled by the Liberal-Country Party coalition in 1975.

3) The Convention that — when a Prime Minister, who cannot obtain supply, must either request that the Governor-General call a general election, or resign. This Convention was allegedly broken by Prime Minister Whitlam, in response to the Senate’s unprecedented refusal.

In moment of need, the ‘constitutional monarchy’ of Australia could not lead to a ‘responsible government’ in November 1975. The unmentioned consequence of that Royal Ambush is that the Labor Party has lost the courage to counter a move from the unelected Governor-General, appointed by the Queen in London, allowed to dismiss an elected prime minister.

If there was a fault in the ‘System’, it was due to the dismissed Prime Minister adhering to the Constitutional practice required by the United Kingdom.

Perhaps Mr. Whitlam was unaware, when he proposed to the Queen the appointment of John Kerr, that Kerr had supported anti-Communist, anti-Labour organisations and parties; had dabbled in ‘intelligence’ long before becoming an ‘asset’ of the Central Intelligence Agency; and that, in addition to such a politically compromising situation, had serious problems of drunkenness, and a proven reputation for sexual preference for ‘young flesh’, propensities which, in themselves, could open him up to blackmail. Many Labor members who could read, write and correlate information were appalled by the appointment. The best that may be said about this monumental mistake by Gough Whitlam is that the Prime Minister – as a man of honour – firmly believed that “The Governor-General would do his duty.” And so he told his supporters, right to the very end.

In that, Mr Whitlam was perversely correct: Kerr remained ultimately loyal to the Seat of Privilege, in London.

The Australian Constitution makes no mention of the position of Prime Minister, the Cabinet, or political parties. With the Governor-General as a viceroy, the Prime Minister and the Cabinet are just glorified real estate agents.

There is no rule which stipulates that the Prime Minister must be a member of the House of Representatives.

A literal reading of the Constitution suggests that the Governor-General runs the government.

As Section 2 of the Constitution recites:
“A Governor-General appointed by the Queen shall be Her Majesty’s representative in the Commonwealth…”

Here is where a Convention comes in.

In practice, the Governor-General is chosen by the Prime Minister of the day, possibly – but not necessarily – in conjunction with Cabinet.

In the early years of the Federation, the Governor-General was appointed from Britain. In the early 1930s, Labor Prime Minister James Scullin visited London in order to apply pressure on the British Government to allow the appointment of Sir Isaac Isaacs as Governor-General, and thus overcoming the anti-Semitism ingrained in the English Court. Isaacs eventually became the first Australian to hold the position. Since the 1960s, all Governors-General have been Australian-born. This is a requisite which may amount to nothing in the frequent cases of sycophancy.

Section 5 of the Constitution reads:
“The Governor-General may appoint such times for holding the sessions of the Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue the Parliament, and may in like manner dissolve the House of Representatives.”

Not so — in practice the government of the day decides when Parliament will sit. These are intensely political decisions made by the Prime Minister and the most senior members of the government and its advisers.

Section 24, on the constitution of the House of Representatives, provides that:
‘The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of senators.

The number of members chosen in the several States shall be in proportion to the respective members of their people, and shall, until the Parliament otherwise provides, be determined, whenever necessary, in the following manner:

(i.) A quota shall be ascertained by dividing the number of the people of the Commonwealth, as shown by the latest statistics of the Commonwealth, by twice the number of senators:

(ii.) The number of members to be chosen in each State shall be determined by dividing the number of people of the State, as shown by the latest statistics of the Commonwealth, by the quota; and if on such division there is a remainder greater than one-half of the quota, one more member shall be chosen in the State.’

The provision, and particularly the real meaning of the words “chosen by the people” was tested in Attorney-General for Australia (at the relation of McKinlay) and others v. Commonwealth of Australia and others (1975) 15 C.L.R. 63. The central issue was whether the electoral boundaries set under the Commonwealth Electoral Act contravened the requirement of Section 24. The plaintiffs claimed that the section required that as nearly as practicable, the number of electors in each electoral division in a State be equal. The full court ruled that the section did not require equal number of people or electors in electoral divisions.

Mr Justice Murphy powerfully dissented. He began by saying that the main question before the Court was whether the Australian Constitution guarantees electoral democracy. The response was a resounding ‘no’. He shared the plaintiffs’ contention that the words emphasised guarantee equal representation — one head, one vote, with consequent honestly administered results.

The position has not moved one single centimetre forwards in the last 37 years.

The House of Representatives is composed of 150 members, elected in designated electoral divisions for 3 years with the preferential voting system and full allocation of preferences.

Only a person paid for her or his biased opinion could state that such a system does not leave Australians unequal by result, and weight, of their representation.

The results of the 21 August 2010 federal election for the House of Representatives led to a staggering comparison: the Australia Labor Party, with 4,711,363 votes and 37.99 per cent, obtained 72 seats.  The ‘Coalition’ (Liberal Party of Australia, 3,777,383 votes, Liberal National Party of Queensland, 1,130,525 votes, National Party of Australia, 419,286 votes, Country Liberal Party of the Northern Territory, 38,335 votes and National Party for Western Australia, 43,101 votes) — and thus for a grand total of 5,406,630 votes and 43.66 per cent, obtained 72 seats. The Australian Greens, with 1,458,998 votes and 11.76 per cent, obtained 1 seat. There were 312,496 votes for Independents and 510,876 votes for other groups. Four Independents were elected. A minority government was possible with the vote of some Independents and of the Greens representative.

How that result could be satisfactory, and above all democratic, is beyond belief. But self-willed ignorant, illiterate, innumerate, indifferent people, could be made to believe anything, if sufficiently and frequently lied to.

After distribution of the forced ‘preferences’, the results for the two parties of the system were: the Australian Labor Party, with 6,216,445 of the votes and 50.12 per cent, obtained 72 seats. The ‘Coalition’, with 6,185,918 votes and 49.88 per cent, obtained 72 seats.  It deserves repeating: the Greens, with 1,458,998 votes and 11.76 per cent, obtained one seat.

The consequence of this monstrously undemocratic and unrepresentative system is the axiomatic proposition that the ‘Labor’ Party cannot win anything close to a majority without the Greens ‘preferences’ and the Greens cannot win any seats without the ‘Liberals’ ‘preferring’ them in odium of ‘Labor’!

Section 28 of the Constitution says:
“Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be soon dissolved by the Governor-General.”

Well, not really — this section is interpreted literally in the sense that no House of Representatives may continue for longer than three years, but an earlier dissolution of the House is not exclusively decided by the Governor-General.

Officially, the Prime Minister calls upon the Governor-General ‘to request’ a dissolution. In most cases, the request is granted, but a Governor-General is not duty bound — to the Australian people, anyway.

There have been historical incidents of Governors-General rejecting or querying the Prime Minister’s advice. There were three occasions between 1901-10 when such requests were rejected by the Governor-General, and in 1983 when the Governor-General, Sir Ninian Stephen, sent Prime Minister Malcolm Fraser away with instructions to provide detailed argument in support of his request for a double dissolution of the Parliament.

Chapter 2 of the Constitution on the Executive Government sets out in Sections 61-70 how the Government of Australia shall operate. Significantly, it makes no mention of the Cabinet, political parties or the Prime Minister.

Government by cabal would be ‘constitutionally’ possible in Australia.  It often is.

An Australian federal ministry must meet a number of constitutional requirements and conventions.  Section 64 requires that all ministers must be Members of Parliament.

Furthermore, the ‘Westminster System’ requires that the ministry must command the support – that is to say, have the ‘confidence’ – of the House of Representatives.

This Convention is reinforced by the requirement of Section 53, whereby all appropriation bills must originate in the House of Representatives. Without the ability ‘to secure supply’ from the House of Representatives, a ministry is obliged to resign or call an election.

Then there is high-sounding Section 61:
“The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.”

Practically, it is the Cabinet, led by the Prime Minister, which performs this task.

Section 62 provides that:
“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 sworn as Executive Councillors, and shall hold office during his pleasure.”

In fact, the Governor-General, acting on the advice of the leader of the majority party in the House of Representatives, summons members of the majority party and swears them/or takes their affirmation in as ministers. The Executive Council operates in accordance with the Constitution, but the Governor-General always acts on the advice of her/his ministers.

The section locates the effective executive power in the Ministers of the Crown. It was that section upon which the ‘conservative’ Australian Government relied on in a well-known incident in 2001, when it prevented a Norwegian vessel, the Tampa, from bringing more than 400 asylum seekers on to the Australian mainland.

Government and Opposition were then half-way into that period of competition in meanness which animates the two opposing factions of the ‘Westminster System’ in Australia.

Since 1992 intending refugees – some of ‘the other others’ – have been mandatorily imprisoned if arriving in Australia by sea, undocumented. Such criminal treatment of poorchrists marks the systematic barbarism and violations of no fewer than seven basic international human rights treaties and conventions and no fewer than six optional protocols to those treaties that Australia has signed and ratified.

Only Australian governments enjoy the privilege of being ‘liberal’ and xenophobic at the same time!

Pursuant to Section 64:
“The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish. Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen’s Ministers of State for the Commonwealth.”

In reality, the Prime Minister is the person who leads the party with a majority in the House of Representatives. The ministers are chosen by the Prime Minister who advises the Governor-General of the names and portfolios to be allocated to them.

It was this section of the Constitution that the Governor-General misused in the Royal Ambush to dismiss the Whitlam Government in 1975. This is not the only instance in federal political history of the Governor-General exercising the so-called ‘reserve powers’ in this way.

Section 68 states:
“The command-in-chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative.”

In truth, the Prime Minister and the Defence Minister are in charge of the armed services. It is they who take charge of sending troops around the world.

It is unlikely that the armed services would accept orders from the Governor-General if they were not also Government orders.

Section 72 states:
“The Justices of the High Court and of the other courts created by the Parliament shall be appointed by the Governor-General in Council.”

In fact, judges are appointed by the Cabinet. The Governor-General simply rubberstamp the decisions made at a meeting of the Federal Executive Council.

There is a basic Convention of the ‘Westminster System’ which provides for cases of collective ministerial responsibility, and another by which individual ministerial responsibility is enforced — theoretically, that is to say.

Cabinet meets in secret and speaks with one voice. Ministers who are not prepared to accept the collective decisions of Cabinet are expected to resign. Ministers who speak out in public against Cabinet decisions can expect to be dismissed by the Prime Minister.

Cabinet solidarity is not always upheld.

Ministers are expected to take responsibility for the administration of their departments, the actions of their staff and themselves. This principle has become increasingly difficult to interpret and enforce, given the size and complexity of modern government. Often the political support of the Prime Minister is the most crucial factor determining whether ministers survive scrutiny and criticism of their conduct. With the support of the Prime Minister, there is no problem. Otherwise, personal responsibility is brought to work and the culprit must resign.

As for amending the Constitution, a referendum process is the only process available — although extraordinarily difficult. This is one of the reasons why constitutional referendums are relatively infrequent. There have been only 44 attempts on 19 separate occasions to change the Constitution. Only 8 of these have been successful — the most recent being in 1977.  Only 4 referendums have succeeded in the past 50 years.

Recognition of the Aboriginal and Torres Strait Islander Peoples in the Preamble to the Constitution could become quite difficult, if it is in any way associated with an unfavourable opinion about the Gillard Government.

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