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A constitution for the 19th century (Part 2)

Part Five of a history of European occupation, rule, and brutal imperialism of Indigenous Australia, by Dr George Venturini.

A quick look of the Australian Constitution reveals that it is technically an act of the British Parliament passed in 1900, the last vestiges of British legislative influence in Australia to be 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. At best that is sheer nonsense.

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.”

First, 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 ‘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’. That means responsible to everyone but the Australian people. 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 Australian 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 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 even of a possible antagonistic manoeuvre coming from ‘Yarralumla’, which is the official seat of the Governor-General.

There, an unelected Governor-General, appointed by the Queen in London, surreptitiously dismissed an elected prime minister. If there was a resulting fault in the ‘System’ it was due to the firm adherence by Mr Whitlam to the constitutional practice followed in 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, he had serious problems of drunkenness, and a proven reputation for sexual preference for ‘young flesh’, propensities which in themselves could open him to blackmail. Many Labour members who could read, write and correlate information were appalled at the appointment. The best which may be said about this monumental mistake by Mr Whitlam is that the Prime Minister – as a man of honour – firmly believed that “The Governor-General would do his duty.” And so he was telling his supporters.

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

In those circumstances, a populace accustomed to conceive of equality as at the lowest possible common denominator, where unpardonable ignorance is cheerily shared and enjoyed by all, where freedom consists of defaming politicians, belittling intellectuals – a word which then becomes a term of abuse, spelled purposely between inverted commas, and where a Prime Minister too educated, too erudite, standing even physically above the execrable crowd, devoted to carrying out a programme of modernisation, reform and melioration of the country, too conscious of his abilities – hence defined as ‘arrogant’, was constantly challenged by people surviving in a society swarming with predacious banksters, real estate artists, shysterish solicitors, nostrum peddlers, and priestly paedophiles and who transfer their revenge on persons who genuinely, honourably and competently seek public office with an aggressiveness which testifies to their inverted servility.

So, long as the s/governing regimes let those people free to make some ‘authorised’ fun of Mrs Elizabeth (soi-disante Windsor, but in fact Herzogtum Sachsen-Coburg und Gotha), married to Philip (soi-disant Battenberg-Mountbatten, but in fact Schleswig-Holstein-Sonderburg-Glücksburg), Australians – males in particular – are satisfied with their subsistence in bigotry – and ultimately racism – at home, nominal manliness of course in the house, and a confluence of those ‘qualities’ in vicarious imperialism abroad. Result? An official loss of 102,825 lives in sixteen wars fought – except for the second world war – at the request of outside powers, at different times ‘motherly’ otherwise ‘great and friendly.’ Helotry comes to mind.

Curiously, there is never a reference to losses in the ‘wars on the Blacks’ – or their victims, for that matter: 20,000 of them before federation, and another 10,000 after.

Only theoretically, therefore, and when applied in good faith by honest men/women, that barbaric piece of paper which is the ’Australian’ Constitution can be sustained by Conventions which underpin its operation and that of the Executive Government.

Some reference to the out-datedness of that piece of paper should persuade the sceptics. Alas, it can do nothing for the illiterate, the imbecile and the ‘conservative’.

The Australian Constitution makes no mention of the position of the 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. [Emphasis added].

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) 135 C.L.R. 1 at 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 sounding ‘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 42 years.

The two factions of that cabal which is the ‘Westminster System’ have a shared interest in keeping things as they are: parliamentary democracy(?) well, yes – sort of, representative democracy(?) to be avoided like the pest in favour of an alternative of almost similar parties. Out of this mafia political system Labor may be given a chance, in moments of distress, in time of war, when the ‘conservatives’ have been sent home for Rest & Recreation – at the expense, of course, of Labor people, the overwhelming majority of the population, minorities and the eternally forgotten: the Blacks.

The Westminster System’? ‘Parliamentary democracy’? One wonder what a modestly educated member of the Indigenous People or Torres Straits Islander would make of such concept.

Perhaps it is worth anticipating some consideration about the way in which the ‘invader culture’ distorts that of the invaded. Paulo Freire, a Brazilian educator and philosopher, has dealt with the subject in a famous and influential work: Pedagogy of the oppressed. In it he affirmed that the ‘invader culture’ would only succeed if the invaded people ended up believing in their own cultural inferiority. The Indigenous People as fauna ? When convinced of their own inferiority they would see the invaders and their culture as being superior. In time, as people become more alienated from their own culture they would see only positives in the culture of the invaders; they would then desire to become more and more like them, to the extent that they would “walk like them, dress like them, talk like them.” (Paulo Freire, Pedagogy of the oppressed (Penguin, London, 1990 at 122).

Talk like them – how else would one explain the preoccupation with “the sovereignty of the Crown”?

Continued Monday with: The new invasion of the Northern Territory (Part 1)

Previous instalment: A constitution for the 19th century (Part 1)

Dr. Venturino Giorgio (George) Venturini, formerly an avvocato at the Court of Appeal of Bologna, devoted some sixty years to study, practice, teach, write and administer law at different places in four continents. He may be reach at  George.Venturini@bigpond.com.au.

 


5 comments

  1. Jack Arnold

    “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 hold the position.”

    Isaacs occupies an interesting but too long overlooked position in Australian history for his role in establishing the “protection” policies that caused state sponsored genocide of the Aboriginal peoples. Respected retired High Court Justice Kirby J refused to discuss this aspect in a recent paper, sadly claiming that his other legal work exonerated Isaacs from any fault. I am not that sympathetic because history is what the facts are, not what you want it to be.

    At the Australasian Constitution Conventions, Isaacs, a Jewish lawyer from Beechworth Victoria ,who was a staunch Eugenics supporter, advocated strongly for the Aboriginal people to be excluded from the Australian Constitution, contrary to just about every direction given to Phillip in 1787. Hence the Constitution STILL contains many sections that discriminate against Aboriginal Australians but not “settler” Australians.

    In 1901, the Constitution gave all “settler” women the vote but disenfranchised ALL Aboriginal men and women, making them stateless persons in their own land of some 60,000 years occupancy. In many cases state legislation included them as “flora & fauna” and excluded them from Census counts.

    In about 1906 Isaacs, sitting alone in the Australian High Court dismissed an appeal for a South Australian Aboriginal man against being disenfranchised of his 1892 vote. This decision resulted in the state sponsored genocidal polices of state and Federal governments that lasted about 70 years until the 1967 Referendum and the Racial Discrimination Act 1975 (Cth).

    How did this affect Aborigines? Government neglect of every aspect of government policy. Even Eric Sims. South Sydney NRL star fullback of the 60s was excluded from a Kangaroos tour of England in favour of the late Graeme Langlands (St George) because Sims “was not an Australin citizen”; but Sims was arguably a better footballer because his prodigious goal kicking abilities from anywhere within the opponents half forced the NRL to reduce field goals from two to one point.

  2. king1394

    The Senate vacancies that arose in the ALP side of the Senate in 1975 were firstly when Senator Lionel Murphy went to the High Court and the Lewis Government in NSW chose to install Cleaver Bunton from Albury to replace him. While he may have declared himself independent, he had been very close to the Liberal Party over the years, having even been considered for pre-selection as an MLA. In Queensland, the death of Labor Senator Bert Milliner opened the way for Premier Bjelke-Peterson to put forward a complete non-entity, Albert Field, who was on leave of absence for most of 1975. Senator Steele-Hall at the time described the appointment as a ‘sleazy march to power over a dead man’s corpse’

  3. Phil

    Love this series George. I like your uncompromising language and turns of phrase – refreshing given the absolute dryness of the subject matter.

  4. Andreas Bimba

    My interpretation of this document written by Arthur Chresby is that although the Australian constitution is royalist it includes many very democratic principles for example that elected representatives to parliament must only vote in accordance with the expressed will of the citizens in their electorates. If this is the case it is our parliaments, governments and political representatives that are not complying with the constitution and the high court is also therfore failing to ensure its compliance.

    https://www.ourconstitution.org/your_will.php

    Any thoughts?

  5. wam

    A hard read Dr V. It is time to shred the document and write a new one that eliminates parties and above the line voting from the senate and gives each voter 6 first votes in a half senate and 12 in full senate election. With random order on the ballots to reduce the influence of the donkey. Oh what fun highest number of votes plus ties get a seat(I’d love to see the byelections eliminated by just recounting the ballots with the outgoing member eliminated and the votes distributed first what fun labor and lnp would have to nominate two candidates giving a choice with a choice) only kidding but fun?
    ps Andreas
    ‘If a majority of the electors were to vote “informal” it would force a fresh election and bring forth fresh candidates, thus indicating that the electors were casting their votes with care.'(chresby)
    ‘A House of Representatives candidate is elected if they gain more than 50 per cent of the formal vote’
    seems contradictory???

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