By Dr George Venturini
Choices are open to the 40 per cent who complete secondary schooling in the private sector. It means, though, that state high schools are left to cater for a less affluent 60 per cent. Despite excellent exceptions, these schools achieve significantly lower rates of entry into university. This leads to a further discrimination: the richest 25 per cent of schools release almost two in five students in the top quartile of achievement; the poorest 25 per cent have one in five.
And that is not the end: students from wealthy family can secure a university place by paying full fees. And what is a student who just missed out on a publicly funded place to make of the entry of full-fee-paying students who scored say up to 10 points lower, in the case of some law degrees, and up to 20 points for less lucrative arts qualifications?
Public-private disparities in education are the most critical perpetrators of disadvantage through the generations, but are not the only ones.
Of course, no one can reasonably expect that people will not use the advantages that money brings to benefit themselves and their children. Australia is a market-based society. Money is everything and is responsible for ‘natural’ divisions. No exception to such iron rules may be even thought of.
At the same time, it is rarely considered that when wide-ranging disadvantage is reinforced from one generation to the next, the notion of a ‘fair go’ begins to look pretty tenuous, self-serving for those on the right side of the tracks, and in the end totally hypocritical.
One enters into the realm of political rhetoric on social justice. The latter is a concept difficult to grasp and organise into a programme of action. Here comes the game played by the two parties of ‘the system’, muddling though the difficulties of gaining the confidence of a part of the electorate without offending the other, which could very well be more powerful. It is not hard to understand why so many ‘ordinary’ Australians are disenchanted with politics and regard the two major parties as ‘out of touch’ – ‘all the same’ perhaps?
The projection of a future which looks an awful lot like a country of two classes goes unremarked. The plebs prefer the illusion of comforting myths, easy slogans, simple – often non sequitur – expressions of profound ignorance. Better still, the two classes may settle down for a sickened and sickening atmosphere better expressed in a famous quote by Amos Bronson Alcott: “To be ignorant of one’s ignorance is the malady of the ignorant.” Alcott was an American teacher, writer, philosopher, reformer and educator. He was a transcendentalist, friend of Ralph Waldo Emerson and, perhaps more famously, the father of Louisa May, the author of the novel Little Women in 1868.
It may be hard to accept that the vaunted spirit of ‘fair go’ is nothing but a myth.
And if one accepts that, nothing can be out of reach. Most tools of public life in Australia are designed to proceed with myths, tales, common places.
Another common insidious ‘value’ necessary to become ‘a real Australian’ is the acceptance that there is freedom of religion.
That freedom is predicated on the assumption that Australia is a secular society – another myth in everyday’s life. Not only is Australia a secular society, but the common ethic which united Australians is founded on the tradition of the ‘Judeo-Christian civilisation’. This cold ‘value’ has the result of excluding almost half of the Australian population, as noted. One who does not live by that tradition is not a good Australian.
In fact, the situation is more complex.
Australia is a religiously diverse country and, although it has no official religion, the frequent reference to the so-called ‘Judeo-Christian tradition’ is considered an omnibus blanket to cover all sorts of things, and not always welcome. In public life in particular one observes frequently a ‘special kind of hypocrisy’, for instance: the various governments of Australia refer to the Christian God in their ceremonies, as do the various Australian Courts. And on the same line, Christian symbols appear on public buildings, such as universities, not to mention publicly-paid-for hospitals bearing the name of persons connected with the Christian religion and/or the name of this or that ‘royal’ celebutante.
On taking her/his chair every day in Parliament the Speaker of the House and the President of the Senate deliver the following Christian prayer:
“Almighty God, we humbly beseech Thee to vouchsafe Thy special blessing upon this Parliament, and that Thou wouldst be pleased to direct and prosper the work of Thy servants to the advancement of Thy glory, and to the true welfare of the people of Australia.
Our Father, which art in Heaven, Hallowed be Thy name. Thy kingdom come. Thy will be done in earth, as it is in Heaven. Give us this day our daily bread. And forgive us our trespasses, as we forgive them that trespass against us. And lead us not into temptation; but deliver us from evil; for thine is the kingdom, and the power, and the glory, forever and ever. Amen.”
So much, one would comment, for the ‘values’ of ‘respect for the freedom and dignity of the individual’ and ‘freedom of religion’.
Most interesting, the text would conform with Catholic tradition, but rather with the Anglican liturgy.
A big parenthesis may go well at this point: in 2016 there were 3,101.200 Anglicans in Australia = 13.3 per cent of the population. Anglicans were a minority within a rather slim majority of Christians: Catholics, 5,291.800 (22.6 per cent) and Other Christians 3,808.600 (16.3 per cent).
Christianity remains the predominant practice in Australia, though this is diminishing, changing and diversifying. At the Census 2016, 52.1 per cent of the Australian population acknowledged to some variety of Christianity. Over the fifty years since 1966 the proportion of the population who self-identify as Christian, combining all Christian denominations, has fallen from 88.2 per cent. In 2016, 30.1 per cent of Australians declared “no religion”; a further 9.6 per cent chose not to answer the question. The remaining population is a diverse group which includes Muslims – 2.6 per cent, Buddhists – 2.4 per cent, Hindus – 1.9 per cent, Sikhs – 0.5 per cent, and Jews – 0.4. Result: Christians 52.1 per cent, Others 47.9 per cent.
Apart from all that, there are in Parliament persons clearly of the Jewish faith and several of the Muslim, in addition to those who cannot be classified because, among other reasons, they believe that what faith they may have, if any, is nobody’s business. Correct, but not sufficient; there have been several attempts, mainly by the Greens ‘to scrap’, The Sydney Morning Herald, 14 January 2014, to ‘letting go of the Lord’s prayer’, A.B.C., 17 January 2014, with renewed attempts in the federal Parliament as well as in state Parliaments – but all in vain. As an on line entry put it: “The Lord’s prayer in Parliament – what the hell?”, propertychat.com.au, 4 March 2016. Precisely.
But there are more serious aspects of Australia’s dependency on foreign symbols.
Consider for instance the flag. On the top corner of the Australian flag there is a Union Jack. Now, that symbol combines aspects of three older national flags: the red cross of St George for the Kingdom of England, the white saltire of St. Andrew for Scotland, and the red saltire of St. Patrick to represent Ireland. Ireland is now an independent republic and it is only a source of sorrow that six counties be occupied by Britain, and conveniently called Northern Ireland.
The last thing Australia should do is interfere with that problem. Trouble is that the present Australian flag suits the Englanders and their fantasies. The original union of England and Scotland goes back to 1606, and the addition of the Irish saltire goes back to 1801, both dates largely preceding the formation of Australia in 1901.
None of such moral ruins has (should have anyway) anything to do with Australia.
Symbolism it is, yes, but a matter which could be of painful concern to sentient ‘new Australians’, those who may prefer to be participants than lazily settle down as spectators.
Symbolism surrounds the opening of every session of the federal Parliament. Thus, a publication of the Parliament of Australia provides the history of the mace.
And that goes back a long time.
As a symbol, the mace is purely a monarchical one. It was back in medieval times that the Royal Serjeants-at-Arms were distinguished by their power of arrest without a warrant. To an increasing extent, their maces – originally ordinary weapons of war, similar to a club – became their emblems of authority. Authority?
Maces were stamped with the Royal Arms; and in an age in which few men could read or write, the Serjeants effected their arrests by showing their maces and not by producing any form of written warrant.
The evolution of maces from weapons of war to symbolic representations has seen the flanged head decrease in size into an ornamental bracket, while the butt end, which carried the Royal Arms, has expanded to accommodate larger and more ornate Royal Arms and an arched crown surmounted by an orb and cross. As a result of the expansion of the butt end, maces began to be carried upside down with the crown uppermost.
The mace of the Australian House of Representatives is the symbol not only of the Royal authority but of the authority of the House. Because it is held that “the authority of the Speaker and of the House are indivisible”, the mace also symbolises the authority of the Speaker.
When the Speaker is in the Chair, the mace lies on the Table, with the orb and cross surmounting it pointing to the government side, that is, to the Speaker’s right.
The Serjeant-At-Arms is custodian of the mace. Bearing the mace upon the right shoulder, the Serjeant-at-Arms precedes the Speaker when the Speaker enters and leaves the Chamber at the beginning and the end of a day’s sitting.
The fable surrounding the mace is so old that there is a view – taken seriously by the monarchists – that the House of Representatives may not be properly constituted unless the mace is present on the prescribed brackets in the Chamber!
The magic surrounding the mace is enhanced by the practice of travelling with the Speaker on formal occasions – such as when s/he appears to the presence of the Governor-General after election, when the House goes to the Senate to hear the Governor-General’s opening speech, and on the presentation to the Governor-General of the Address in Reply to the opening speech. On these occasions, the mace is covered with a cloth or left in an antechamber before entering the Governor-General’s presence.
The symbolism reaches a paroxysmal, divine point of loyalty of the subjects: being the symbol of the Royal authority, the mace becomes unnecessary in the presence of the authority itself. How un-free can monarchists be?
Beyond the theatricality which seems to enchant the plebs there is a more insidious way of ‘moving forward’ – as the jargon dictates – by looking backward.
Preserved for veneration much as a religious relic, there is in Parliament House in Canberra a copy of the 1297 version of the Magna Carta preserved in a lightbox style window.
The Magna Carta, or ‘Great Charter’, dates back to 1215. It is seen by some, mainly persons with eyes on the back of their head, as an important step in the development of democracy and the British Parliament, and has influenced the creation of founding documents such as the 1689 British Bill of Rights and the 1901 Australian Constitution.
The first version of the Magna Carta, written in 1215, was a peace treaty between King John of England and his barons. It was a ‘deal’; in modern jargon one could regarded it as establishing a ‘principle’: that all people, including the king, had rights and responsibilities under the law. This anyway is the favourite interpretation, convenient to people in power- without-responsibility in Australia.
Prior to the Magna Carta, King John had absolute power as a feudal monarch. He gave the barons their titles and estates (the land, boys!) in return for their loyalty. King John was an untrustworthy partner and a cruel tyrant, who expected the barons to give him money and troops to fight a long and pointless war with France. The barons had to tax their people harshly to pay for the war and force men from their estates to fight in the ongoing conflict.
By 1215 the barons were fed up with the king’s behaviour and many rebelled against him. They seized the Tower-Of-London and demanded the king listen to them. In June, in a meadow at Runnymede, the king and the barons met and agreed on the terms of the Magna Carta. As was common practice, the document was copied out, fixed with the king’s seal and sent to all parts of the kingdom to be read out to the people, many of whom were illiterate.
In return for the barons pledging loyalty to King John, the Magna Carta limited the king’s power, with most of the document detailing the rights of the barons under the feudal system. However, it also described what is commonly referred to as ‘the rule of law’, including the important point that the king was subject to the law, like all others. Individual rights and liberties were defined, with one of the most notable sections reading:
“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.
To no one will we sell, to no one deny or delay right or justice.”
No historian, no constitutionalist, no political scientist and most certainly no professional politicians in the Westminster System, no one who was not paid for her/his opinion would dare to interpret without blushing that document as a charter of rights for everybody – a foundation of the Australian ‘values’.
In fact, almost immediately after signing it, King John ignored the Magna Carta and broke his agreement with the barons. King John tried to butcher the authors of Magna Carta. (‘King John Tried to Butcher the Authors of Magna Carta,’ free.org, 15 June 2015).
He died in 1216 and his nine-year-old son, Henry lll, became the king. As he grew, his guardians made three more editions of the Magna Carta, in an attempt to win back the support of the barons. Some changes were made, but many of the original ideas stayed the same, perhaps just simply ‘ideas’.
In 1225 King Henry lll, at the old age of eighteen, issued the fourth, and heavily revised, version of the Magna Carta, in return for a kingdom-wide grant of tax. As his father had before him, the king fought with the barons. In 1264 Simon de Montford, a baron, overthrew the king and became the ruler. De Montford believed that the king’s power should be limited. He called together knights and some non-noble representatives from across the kingdom to meet in a parliament. Although it would be many years before parliament met regularly and included commoners in its ranks, the idea of the modern English parliament might have germinated then.
In 1265 de Montford was killed on the battlefield by King Henry’s son, Edward, who succeeded his father as king in 1272. Throughout the 1200s, the Magna Carta was increasingly quoted as laws were made and petitions were prepared against the unfair use of power.
Edward l ordered that an Inspeximus – from Latin, and to mean: “we have inspected”. It was the first word of ancient English charters confirming a grant made by a previous king. The word opens the edition of the Magna Carta reissued in 1297. In that edition King Edward declared that the Magna Carta would from then on be a part of common law and that any court judgements which went against it would be “undone and holden for naught.” This is the official Australian view, and from it the preceding information is taken.
Preserved at Parliament House, Canberra is a copy of the 1297 version.
Some comments seem appropriate.
As recently observed by Professor Tom Ginsburg, who teaches international law and political science at the University of Chicago, the Carta’s “fame rests on several myths.”
”First, it wasn’t effective. In fact, it was a failure. John was a weak king who had squandered the royal fortune on a fruitless war with France. Continually raising taxes to pay for his European adventures, he provoked a revolt by his barons, who forced him to sign the charter. But John repudiated the document immediately, and the barons sought to replace him. John avoided that fate by dying.”
His young son reissued the Magna Carta, without some of the clauses. It was reissued several times more in the thirteenth century. But the original version hardly constrained the monarch.
A second myth is that it was the first document of its type. Writing in 1908, Woodrow Wilson called it the beginning of constitutional government. But in fact, it was only one of many documents from the period, in England and elsewhere, codifying limitations on government power.
Consider, for instance, the history of Iceland. There, in 930 c.e. the ruling chiefs established an assembly called the Alþingi – correspondent to the classic Norwegian Althing. It was a parliament, convened each summer at Þingvellir – an early form of Senate, where representative chieftains – Goðorðsmenn or Goðar – made and amended laws, settled disputes and appointed juries to judge lawsuits. Laws were not written down but were instead memorised by an elected lǫgsǫgumaðr – ‘Lawspeaker’. The Alþingi is viewed by many as the world’s oldest existing parliament. Importantly, there being no central executive power, laws were enforced only by the people.
Iceland enjoyed a mostly uninterrupted period of growth in its so-called commonwealth years, between 874 and 1262 c.e.
A third myth is that the document was a ringing endorsement of liberty. Even a cursory reading of the translation into understandable English reveals a number of oddities. One clause prevents Jews from charging interest on a debt held by an underage heir. Another limits women’s ability to bear witness to certain homicides. A third requires the removal of fish traps from the Thames.
In fact, Magna Carta was the result of an intra-élite struggle – class war? – in which the nobles were chiefly concerned with their own privileges. When they referred to the judgment of one’s peers, for example, they were not thinking about a jury trial. Indeed, in 1215, the jury trial – as it is known at present – did not exist; guilt was often determined by seeing how suspects reacted to physical ordeal. The reference to one’s peers meant that nobles could not be tried by commoners, who might include judges appointed by the king.
Why then all the fuss about the Carta? Well, the veneration of the relic began in the early seventeenth century, when members of the English Parliament and the famous jurist Sir Edward Coke revived the document in their struggle with the Stuart monarchs. They argued that free Englishmen had enjoyed a set of rights and privileges until they were disrupted by the Norman Conquest of 1066. In their view, Magna Carta embodied these rights, so it was held up as a model of a glorious past and part of an ancient constitution. Consistency and objectivity did not seem to enjoy great popularity.
Throughout the tumultuous seventeenth century, Magna Carta was invoked by opponents of whoever was in power, leading Oliver Cromwell famously to refer to the document as “Magna Farta.” In the eighteenth century, parliamentary sovereignty replaced monarchical absolutism, but Magna Carta continued to be invoked by reformers, now focused on Parliament rather than the king. (T. Ginsburg, ‘Stop Revering Magna Carta’, The New York Times, 15 June 2015).
On both sides of the Atlantic the Carta is venerated by a kind of priesthood – and understandably so; why, it is old, it is English and, because no one other than philologists has read the original, which by modern standards in incomprehensible English, it is easy to invoke to fit contemporary needs.
George Henry Brandis, Q.C., since May 2018 His Excellency The Honourable George Brandis Q.C., the Australian High Commissioner to the United Kingdom, was very fond of referring to it, and in the process of ridiculing, while Attorney-General of the Abbott and Turnbull governments, any attempt at providing Australia with a Charter of Human Rights because Australia has had the good fortune of ‘inheriting from mother England’ the Magna Carta. Even admitting that George Brandis might have never read the Carta in its original version, such ‘good fortune’ leaves Australia as the only country of English language without any form of Bill of Rights. The common law, said Brandis is sufficient to uphold and protect human rights. It is the classical case of ipsedixitism – an unsupported dogmatic assertion.
Many Americans – and some of their vassals – are not alone in revering Magna Carta. Mohandas K. Gandhi cited it in arguing for racial equality in South Africa. Nelson Mandela invoked it at the trial that sent him to prison for 27 years. Americans, and Australians for that matter, are not the only ones, it seems, willing to stretch old legal texts beyond their original meaning. Like the Holy Grail, the myth of Magna Carta seems to matter more than the reality.
Continued Wednesday – Comedy without art (part 3)
Previous instalment – Comedy without art (part 1)
Dr. Venturino Giorgio Venturini devoted some seventy years to study, practice, teach, write and administer law at different places in four continents. He may be reached at George.email@example.com.
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