Life on the West Island - Frightening the horses

Barry Jones, an eminent constitutional expert, polymath and former West Island federal minister, has recently written a paper entitled The Constitution of a Mouse. It begins:

The Constitution of the United States dates from 1789 and has been amended 27 times since. It begins with the words, “We the people...” The US government still operates pretty much as written in the constitution. The Australian Constitution dates from 1900 and although the product of referendums in the colonies and states, and beginning with the words “Whereas the people ... have agreed”, it is in form an act of the British Parliament, a gracious gift to a distant child. In practice, it has proved almost impossible to amend. Only eight referendums have been carried, the last in 1977, all with bipartisan support.

The biggest possible change to our system in practice would be to actually apply the constitution of the Commonwealth of Australia as it is written. That would really frighten the horses. Sovereignty would be centred in Britain. The office of prime minister would disappear. The governor-general would act as commander-in-chief, perhaps in the field, make all appointments and frame the budget. Legislation could be vetoed or referred to Buckingham Palace at whim.

The Australian Constitution does not contain any express commitment to democracy or democratic practice, or to responsible government, and makes no provision for a prime minister and cabinet, or an opposition.

The commentary by Mr Jones was provoked by grubby and arguably racist arguments that there should be no recognition in the constitution of First Nations peoples, embodied in the growing movement advocating a “no” vote to a referendum guaranteeing a Voice to Parliament for indigenous citizens. That would deny constitutional recognition to First Nations peoples, who inhabited and protected the land for 60,000 years before the British invasion, and who were then slaughtered in numerous documented massacres, ravaged by introduced diseases, dispossessed of their land, impoverished, gaoled and robbed of their children, among other genocidal crimes.

For decades, West Island politicians have claimed to revere the constitution as a sacrosanct document, virtually ordained by God. They have nurtured the false myth that the constitution establishes our liberal democratic system and guarantees our freedoms.

In 2008, Robert French, later to be appointed as Chief Justice of the High Court, pointed out the consequences if the West Island actually implemented the constitution as it is worded: It is unacceptable in contemporary Australia that the legal head of the Australian state, under present constitutional arrangements, can never be chosen by the people or their representatives, cannot be other than a member of the Anglican Church, can never be other than British and can never be an Indigenous person.

In practice, the West Island has evolved governance institutions despite the wording of the constitution, not because of it. Hence we have a Prime Minister, Ministers of State, an Executive consisting of elected parliamentarians and a Federal Cabinet. In fact, we have not treated the constitution as binding in a whole range of areas, making nonsense of contentions that giving First Nations peoples a constitutional Voice would in some way shatter our democracy or result in a racially divided society.

Mr Jones pointed out a significant area where the constitutional provisions have not been applied:

From the outset, the governor-general, although the central figure in the constitution, rarely played a significant role. Seven of the first eight governors-general were amiable, chinless wonders appointed from Britain, with little or no knowledge of, or links with, Australia. John Howard, a monarchist, ironically played a major role in making the governor-general a cipher by taking on some roles that would have been carried out by a head of state. Scott Morrison destroyed the current governor-general’s credibility by using him as a constitutional ATM.

Yet in September this year, the governor-general proclaimed King Charles to be the West Island head of state including the pledge that with hearty and humble affection, we promise him faith and obedience. Mr Jones reacted: The use of the term “obedience” in the proclamation of Charles III as king of Australia came as a shock. So, too, the “humble affection.” When do we get up from our knees? And then there is faith. In a multicultural nation, what faith would that be? The Church of England as shaped by Henry VIII?

There are strong arguments that the West Island needs a modern, relevant constitution, not an antiquated Act of the British Parliament. But the process for changing the constitution is convoluted and difficult. Mr Jones proposed a way around this impasse:

For a constitutional referendum to succeed, a proposition must secure a majority of the popular vote and a majority of states – that is, four out of six. Following the New Zealand model, which led to a change to the structure of parliament by introducing a “mixed member proportional” component, I propose beginning with a national plebiscite to test public opinion for in-principle support of a future constitutional referendum, asking this question:

“Should the constitution be changed to recognise existing practice, in which:

(1) Australia is declared to be a democracy

(2) Australian nationality is recognised

(3) the head of state is an Australian citizen who does not exercise executive power and acts on ministerial advice

(4) the house of representatives determines after a general election how government is to be formed, and

(5) a prime minister and cabinet exercise executive power.”

If the plebiscite was approved by a majority of voters – the four states out of six requirement being avoided – it would then be submitted for adoption in a constitutional referendum that offered a choice between the new model and retaining the status quo.

The proposal from Mr Jones is rational and well-considered. But, given the reverence of many West Island citizens and politicians for our “God-given” constitution, it might well frighten the horses!