By Dr George Venturini

What have we got?

The Australian Constitution is really no more than a slightly glorified trade agreement, written in the most uninspiring and pedestrian way imaginable, almost exclusively for the scope of removing tariffs between the various colonies-would-be-states.

It does matter that the Constitution is not even the outcome of the Parliament of Australia. The Australian Constitution is contained in an Act of the British Parliament, which in 1900 was the only body able to make laws for the whole of Australia. A law made by the British Parliament was the only legal way to establish a system of government for the whole of Australia.

Five of the existing colonies agreed “to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland”, as the preamble to the British Parliament Act of 9 July 1900 containing the Australian Constitution recites.

Some of the proponents to moving Australia Day to 1 January to recognise ‘the coming into existence’ of Australia that day have obviously not read, not understood, or do not care about, the document. It makes clear that as from 1 January 1901 Australia would be a self-governing colony, not an independent state: art. 8 of the same Act.

Australia was to be no more than a super colony, largely for business reasons.

Only as late as 1994 Australia Day celebrations were formally recognised as an annual event. There are some civic aspects to the Day, but rarely do they go beyond the granting of Australian ‘citizenship’ – to over 16,000 from more than 100 countries in January 2016 – with the attendant condition of British ‘subjectship’, the conferral of ‘gongs’, and speeches by the Governor-General of the Commonwealth and the Prime Minister. Only the former is provided for in the Constitution, the latter is not even mentioned there. This adds some new facets to Australia: an institutional emphasis on militarism – hence each State has a Governor. As will be seen, there are other characteristics of what ‘makes an Australian’: exclusivism is one – which is expressed in de rigueur public declarations that this is the greatest country in the world; a pervasive feeling that corruption of the Rum Corps has remained and transmogrified into modern expressions; an anti-intellectualism which pervades public life, discourse and education – the latter intended as the gaining of a meal-ticket under form of employment unit certificates; a populism, which is the anti-politics politics of non-thinkers; and an attitude to life which can only be qualified as Philistinism, by which one would see that ‘things of the spirit’ are really of no substantial value or importance. Hypocrisy exudes what one would expect from the solemnity of ‘public life’. Public what? A more recent ‘acquisition’ is multiculturalism, a difficult concept to explain because it contains all possible elements for the life of a ‘good society’ – and their opposite.

It is safe to say that an overwhelming majority of Australians would, particularly if asked by a stranger, or a pollster ‘recognise Australia’s Indigenous People and culture’, or reply that ‘it is important to recognise the cultural diversity of the nation’. This is easy to talk about, and this is where the effort stops: easy talk.

Despite the strong attendance at Australia Day events – mainly welcomed by a general sense of hedonism – and despite an outwardly ‘nice’ disposition towards the recognition of Indigenous Australians, the date of the celebrations remains a source of challenge and, for the few who care, of national embarrassment.

Constitution Day, 9 July, has been suggested as a possible alternative, commemorating the day in 1900 when Queen Victoria gave her assent to the Constitution of Australia. Heaven forbid!

The anniversary of the 1967 referendum to amend the constitutional status of Indigenous People, 27 May, has also been suggested as a possible alternative.

3 March was proposed, as the anniversary of the Australia Act 1986 coming in to effect. The Australia Act 1986 is the name given to a pair of separate but related pieces of legislation – one an Act of the Commonwealth Parliament of Australia, the other an Act of the Parliament of the United Kingdom. While each Act gives its short title as ‘Australia Act 1986’, in Australia they are referred to, respectively, as the Australia Act 1986 (Cth.) and the Australia Act 1986 (U.K.). The Australia Act eliminated the remaining possibilities for the United Kingdom to legislate with effect in Australia, for the United Kingdom to be involved in Australian government, and for an appeal from any Australian court to an English court. These nearly identical Acts were passed by the two parliaments, to come into effect simultaneously, and significantly because of lingering uncertainty as to which of the two parliaments had the ultimate authority to do so.

The Day presents all the elements which concurred in the formation of the place. One fundamental component of the story is this: the Indigenous People, who spoke no English, had no monarch to represent the State, and did not share in Protestant Ethic, were declared uncivilised non-humans and soon made the object of systematic extermination; they – rightly – now remember Australia Day as Survival Day. Deep down in the psyche of modern ‘real’ Australians the Indigenous People are the characteristic Orwellian ‘unperson’. Their past is treated as ‘unhistory’ by the majority, which takes hardly any interest in its own past – and that is another element. The ‘unhistory’ of ‘unpersons’ – wrote Noam Chomsky – is illuminated by the fate of anniversaries.

Such excision of a part of the population – admittedly now a small part: some 2.5 per cent of the total population are from Indigenous People, and there are also some thirty thousand Torres Strait Islanders, with a further twenty thousand people identifying as of both Indigenous and Torres Strait Islander origin – was made possible by the adoption of the ‘White Australia’ policy and the acceptance of a trade agreement amongst the original colonies which passes as the Australian Constitution.

The Australian Constitution still reeks of racism in 2016.

The origins of the ‘White Australia’ policy can be traced to the 1850s and 1860s. White miners’ resentment towards industrious Chinese diggers culminated in violence on the Buckland River in Victoria in 1857 and at Lambing Flat in New South Wales in 1861. The governments of these two colonies introduced restrictions on Chinese immigration.

Later, it was the turn of hard-working labourers from the South Sea Islands of the Pacific – known as Kanakas – black-birded between 1847 and 1904 and brought to work in northern Queensland. Workers in the south of the colony became vehemently opposed to all forms of immigration which might threaten their jobs; particularly by ‘non-white’ people who they thought would accept a lower standard of living and work for lower wages.

Some influential Queenslanders feared that the colony could be excluded from the long-forthcoming federation if the Kanaka trade did not cease. Leading politicians from New South Wales and Victoria warned that there would be no place for ‘Asiatics’ or ‘coloureds’ in the Australia of the future.

Once federation was accomplished, in 1901, the new federal parliament passed the Immigration Restriction Act 1901, which received royal assent on 23 December 1901. Designed to end the employment of Pacific Islanders, it was euphemistically described as an Act “to place certain restrictions on immigration and to provide for the removal from the Commonwealth of prohibited immigrants.” [Emphasis added] Removal was the word used at the time for deportation. The process lasted two years.

The Act prohibited from immigration those considered to be insane, anyone likely to become a charge upon the public or upon any public or charitable institution. It also included any person suffering from an infectious or contagious disease “of a loathsome or dangerous character.” The Act grouped together prostitutes, criminals and anyone under a contract or agreement to perform manual labour within Australia – with some limited exceptions.

There was one further odious and ‘flexible’ restriction: the Act provided that “Any person who when asked to do so by an officer fails to write out at dictation and sign in the presence of the officer a passage of fifty words in length in an European language directed by the officer” would not be admitted. Often such tests were conducted in a language with which the applicant was not familiar and had been nominated by an immigration officer.

Historically, the Australian Labor Party has been a party of racism.  From the ‘White Australia’ policy to the ongoing mal-treatment of Indigenous People, Labor has been at the forefront of attacks on ‘non-whites’ – broadly speaking of ‘the other’. In 1992 the Keating Government introduced mandatory detention for asylum seekers in an attempt to shore up the racist working-class vote and divert attention away from its neo-liberal policies which transferred wealth from labour to capital. It worked in the short term but helped to lay the foundations for the Howard Government’s ascendancy by making racist ideas ‘respectable’. In 2011 Prime Minister Gillard proposed outsourcing the torture of refugees to Malaysia in an attempt to keep some of the racist working-class vote and divert attention away for its neo-liberal policies which were, again, transferring wealth from labour to capital. Those who are allowed in are still placed in ‘detention camps’. The words ‘detention camps’ are a misnomer. These are concentration camps, of the kind which were first developed by the Spaniards in 1896 in Cuba, and expanded by the English during the Boer war.  Hitler gave them a new and even more shocking dimension: Konzentrationslager, administered in the final stage by the SS-Wirtschafts-Verwaltungshauptamt and guarded by SS-Totenkopfverbände – in English: SS-Death’s head units.  Lest we forget!

Labor could have shown leadership by explaining to the Australian people why the tiny trickle of refugees coming to Australia, as compared with other countries, are to be welcomed and supported – not vilified.

The fact is that, from the beginning of Australia, and with severe measures, the implementation of the ‘White Australia’ policy was warmly applauded in most sections of the community.

In 1919 a well-practiced turn-coat politician, former Labor, then National Labor, Nationalist – for a time Prime Minister, then Australian, United Australia and finally Liberal, William Morris Hughes, hailed the Act it as “the greatest thing we have achieved.”

Left initially to ignorant enforcers of Her Majesty’s ‘order’, meaning by that the orderly running of the sub-tropical version of the Westminster System, the Act was used in turn against Italian anti-fascist refugees, Jews, anyone really who appeared, sounded, acted as ‘different’.

It was only the Whitlam Labor Government which completely disposed of the ‘White Australia’ policy and took three decisive steps in removing the consideration of ‘race’ as an element for admission to Australia.

For the purpose, the new Parliament was able to pass legislation providing that all migrants, of whatever origin, would be eligible to obtain citizenship after three years of permanent residence, new policy instructions would be issued to overseas posts totally to disregard race as a factor in the selection of migrants and, most importantly, all international agreements relating to immigration and race were ratified. Until then there had been two entities on Earth: Australia and the rest.

The reforms of the Whitlam Government survived – in part – the ousting by the Royal coup of November 1975.

New policies were introduced with the coming of a parallel interest in multiculturalism: they included three-year rolling programmes to replace the annual immigration plans of the past, a renewed commitment to apply immigration policy without racial discrimination – spurred on by the international treaties ratified by the Whitlam Government, a more consistent and structured approach to migrant selection and an emphasis on attracting people who would represent a positive gain to Australia.

The present position with regard to immigration is suffering from the hostility shared between Government and Opposition to ‘unauthorised admission seekers’ – a ‘polite’ way of referring to the refusal to admit certain persons seeking refuge in Australia on ground of heartlessness, xenophobia, religious prejudice and others undeclared biases. The ‘policy’ is working and helpful to both wings of the Westminster System as ‘working’ in Canberra. That the yearly maintenance of one alone of those victims of Australian racism may cost up half a million dollars is not well-known. If it were, probably it would not matter: the end of keeping out ‘the enemy’ would be worth the cost. And that is not very much Christian, but perfectly Jesuitical.

Mandatory detention has set in train an ever worsening response to refugees.  According to statistics provided by the Australian Department of Immigration and Borders Protection, as at 30 November 2015, there were 1,852 people, including 104 children (< 18 years) in ‘immigration detention facilities’, including 1,683 in immigration detention on the mainland and 169 in immigration detention on Christmas Island.  There were 534 detainees, including 70 children, in the Republic of Nauru, and 926 detainees on Manus Island of Papua New Guinea. Many of them have been held for years.

This is of course despite the population being as at 12.00 of 26 January 2016: 23,980.425 million residents – who are proudly advertised as “45 per cent born overseas, coming from 250 ancestries, and speaking some 200 languages, in addition to indigenous languages” in a place which does not discriminate on grounds of ethnicity, culture, religion or language, ‘provided that they meet the criteria set out in law’ – and that as defined from time to time.

And there is the rub.

A diffused sense of ‘unhistory’ spills over from the attitude to Indigenous People to the search for an Australian identity. This is not an overwhelming concern of general interest: the average Australian is satisfied with common places such as the fair go, which is supposed to preside over social policy and its development and mateship, that almost indefinable relationship amongst ‘real’ Australians – which anyway is exclusivist in nature because to be shared only among men.

The average Australian would not have a clue about the process by which s/he is governed and in particular about the Constitution.

Assuming that s/he is willing and able so to articulate the thought, s/he would say in the same breath that Australia is the ‘greatest country’ and its Constitution ‘the very best’ in the world. Exclusivism there meets nationalism and both are supported by anti-intellectualism and an always ill-disguised tinge of racism. Of course, s/he has hardly read the Constitution: not at primary or secondary school, where it goes unmentioned, and not even at university – except perhaps in the social science fields, where the most important section, at least in law schools, is section 92. That section goes to the very essence and purpose of the Constitution: to guarantee that “trade, commerce, and intercourse among the States shall be absolutely free.” The precise meaning of this expression is the subject of a considerable, vexed body of judicial interpretation.

And that smells of mercantilism. Once again: the land, boys ! Now: the business, boys !

What is meant by mercantilism is not some up-dating of highfalutin economic theory but the ‘practical offering and acceptance’ of the ‘reality of life’.  According to this ‘reality’ and view of things what are regarded, even in Australia, as fundamental –  albeit never defined – social rights are now dependent exclusively on the possession of money, and a lot of it.

A recently departed – and for higher position, of course – former Treasurer put that cheap philosophy rather clearly when he advised fist homebuyers “to get a good job that pays good money.” (The (Melbourne) Age, 9 June 2015) The Roy Morgan Research gave the following datum for un-employment that month: 9.3 per cent. And that does not measure under-employment and mis-employment. And there is where effrontery meets imbecility.

Hence the basic rights to housing, education, health are left to the vagaries of ‘the market’ and, in the end, to the possession of money. Failing that it is confined to the demeaning activity of ‘charity’ organisations.

With it goes the acceptance of a regime in which, according to the Tax Justice Network’ recent report of Australia’s 200 publicly listed companies, 29 per cent have an effective tax rate of 10 per cent or less and 14 per cent have an effective rate of zero. The statutory corporate tax rate is 30 per cent. The T.J.N. report claims that if the ASX 200 paid the statutory rate, the government’s coffers would rise by $ 8.4 billion annually. In addition, it seems that 750 (?) foreign corporations operating in Australia pay no tax, because the Cayman Islands are regarded the ‘normal’ safe-keeping place by those who should pay tax in Australia but may afford the financial advice for tax ‘minimisation’. It is, after all, at one of the Cayman Islands that the ship of moral fibre ran aground and completely dispersed its precious cargo.

All this takes place on the provincial theatre of ‘the System’ where ‘the other side’ in Parliament may indulge in rhetorical exercises and vain threats, waiting for their time to govern the corporate-neoliberal regime recently revived by the Hawke/Keating governments. The beneficiaries know that the ‘good life’ on that stage depends on ‘faking it’ for the time being.

The obsession with maintaining “the purity of the British race” had pervaded the Constitutional debates. In 1898, one of major contributors, Edmund Barton, the future first Prime Minister, expressed the prevailing view that the proposed sec. 51 (xxvi) of the Constitution would be necessary to enable the Commonwealth “to regulate the affairs of the people of coloured or inferior races who are in the Commonwealth.”

One hundred and sixteen years since, the section is still in operation.

It is often said that the Constitution is enriched by tacit agreements and conventions. Such archaic way of regulating public affairs in unworthy of a modern country. Legitimistic reliance on ‘conventions’ cost Mr. Whitlam and the Australian people their elected government in November 1975.

Some silent provisions are actually beyond an honest reading of the document. It is hard to give any comforting meaning to sec. 61 of the Constitution which provides that “ The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, …” 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.”

No mention is made of a prime minister in Chapter 2 of the Constitution which deals with “The Executive Government.” The Governor-General is the prime minister.

Other sections confers on the Governor-General the power to appoint officers as ministers of state, in such number as the Governor-General decides, to fix the salaries of such ministers, to appoint civil servants and to command “the naval and military forces of the Commonwealth as the [English monarch]’s representative.”

In a system such as this a foreign monarch is the absolute ruler, the Governor-General its representative, and the residual colony is run through a maze of conventions conferring mostly unwritten, limited powers, save for some which are the subject of ‘reserve’ and hidden powers in the hands of the Governor-General. If W. S. Gilbert had written a libretto for this farce it would have challenged any Arthur Sullivan to set it to music.

Designed further to rivet Australia to foreign interests, the Constitution for the enlarged colony was provided with an amendment sec. 128 calculated to make any meaningful change impossible: a “majority of the States [and] a majority of the electors” are necessary for the alteration of the Constitution. Thus far only 8 referenda out of 44 to amend the Constitution have been successful.

The Indigenous ‘Unpeople’ who survived the invasion and the attempts at extermination continue to be the victims of that antiquated federal agreement. Despite the almost heroic effort of 27 May 1967 which recognised them as ‘citizens’ of Australia, their subjection is still contained in section 51 provision. Before the enactment of the Constitution Alteration (Aboriginals) Act [No. 55 of] 1967, placitum xxvi of section 51 provided that “The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth 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.”  [Emphasis added].

One other odious provision has been removed, such as sec. 127 which said: “In reckoning the numbers of the people of the Commonwealth, aboriginal natives shall not be counted.” That section was repealed by the Constitution Alteration (Aboriginals) Act [No. 55 of] 1967. But the following remains, lest one forgets. Sec. 25 still reads: “For the purpose of the last section (on the constitution of the House of Representatives), if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.”

Parliament being deprived of the final decision on going to war, and always overseas of course, there is – in the silence of the Constitution – a rampant opportunity for ‘vicarious imperialism’. And Australia has a sad distinction in making its presence felt overseas!

Concluding a study on the subject, Dr. Gideon Polya, a distinguished student of history, noted that: “Australian forces have made it to more countries (85) than those invaded by France (80), the British (193), the US (70) or Apartheid Israel (12) … albeit  as lackeys of British or American imperialism. … because look-the-other-way Australia has an entrenched culture of denial, this remote and wealthy country  is currently intimately involved in US Alliance military actions in a swathe of Muslim countries – Libya, Somalia, Syria, Iraq, the Yemen, Afghanistan and Pakistan – variously with troops on the ground, bombing  or the targeting of drone strikes. (Gideon Polya,  As UK lackeys Or US lackeys Australians have invaded 85 countries (British 193, French 80, US 70), 09 February 2015, www.countercurrents.org/polya090215.htm).

It is not difficult to understand how Australia Day has become an artificial fabrication designed by governments, the corporate world, the media and smug ‘established’ Anglo-Australians to ensure that people ignore or forget the real history, in a conflation of triumphalism, racism, trumped-up nationalism, and overwhelming hypocrisy.

Nor does it appear strange that most of the celebrants – ‘old’ and ‘new’ – opt on that Day for the traditional pursuits of barbecue and beach, or park on the couch for a long day watching tennis. Others receive their ‘citizenship’ at ceremonies around the country, while a growing number of the locally born wrap themselves – literally – in the flag, in a manner which was unknown to the Australia of even twenty, thirty years ago.

To be continued . . . Tomorrow: There are undoubtedly difficulties

Dr. Venturino Giorgio Venturini – ‘George’ devoted some sixty years to study, practice, teach, write and administer law at different places in four continents. In 1975, invited by Attorney-General Lionel Keith Murphy, Q.C., he left a law chair in Chicago to join the Trade Practices Commission in Canberra – to serve the Whitlam Government. In time he witnessed the administration of a law of prohibition as a law of abuse, and documented it in Malpractice, antitrust as an Australian poshlost (Sydney 1980). He may be reached at George.Venturini@bigpond.com.