August 21

Australia’s Constitution: Ours Alone


In his article "How Britannia ruled our Constitution" (The Australian, 29 June 1994 page 13), Malcolm Turnbull is wide of the mark in his conclusions from history for the present (or even for our view of the past). Moreover, much of what he says is irrelevant to the present debate. Finally, his resume of Australian constitutional development shows the advantages of the present Australian Constitution and the Australian constitutional monarchy which underpins it.

Dealing first with matters of history: Mr Turnbull accepts that Prime Minister Keating was wrong when he insinuated that the Australian Constitution was drafted in, or substantially influenced by, the British Government.
Mr Turnbull then says about the Constitution that, "although almost entirely written in Australia, it was built on a colonial template" as "the practical rule book for a colony".

This is bad history. The debates in the Constitutional Conventions and in Australia at large in 1890’s showed vigour, originality and independence. The Constitution was consciously drawn, by the prime movers in its drafting, from many models: Westminster, United States, Canadian, Swiss and so on. The federal model emerged early in the debate (in the 1891 Convention) and embodied a unique amalgam of American and Westminster traditions. The referendum procedure for changing the Constitution was primarily Swiss in inspiration.

The debate ranged from deep Constitutional principle to the practical perennials in Australian politics: roads, railways, taxes and rivers.
The quotations given by Mr Turnbull from the debates are highly selective.
It insults the framers of the Constitution, and the people who debated and approved it over a decade of extensive and intensive debate, to call it "a practical rule book for a colony."

Obviously, there was much coincidence of interests in what was drafted between what Australians wanted and what the British Government also wanted. Yet to leave it at that is also inadequate history.
Mr Turnbull is wrong to say that the British "insisted" that the Constitution be subject to the Colonial Laws Validity Act, which invalidated local legislation that was inconsistent with United Kingdom legislation intended to apply in the colony in question. The Australian framers of the Constitution recognized as a fact that such legislation applied to the Constitution at the time; there was no need for it to be mentioned in the Constitution and they convinced the British Government in that respect. The minimal practical constraint of the Colonial Laws Validity Act was formally buried for the Commonwealth Government in the Statute of Westminster in 1932.
Mr Turnbull then concentrates on the one issue where there was substantial debate before compromise: appeals to the Privy Council. To say, as he does, that appeals to the Privy Council were simply a means of protecting British banks is not only incomplete. It also skews the whole perspective. It does not acknowledge the divergence of views within the British government (politicians and senior officials) on even this specific matter, nor the substantially non-interventionist approach of the British in all stages of the development of the Constitution.
Mr Turnbull ackowledges that the final version of the Privy Council appeals provision in section 74 of the Constitution meant that the Commonwealth Parliament could limit appeals, this being one of the few topics in the Constitution on which Commonwealth laws were reserved for the Queen’s approval. Mr Turnbull also acknowledges that, on the rare occasions where Australian Commonwealth laws were reserved, no such law was disallowed.
However, Mr Turnbull does not go on to say that, once such a reserved law was passed and not disallowed, the British Government had no right to reimpose the right of appeal if, for instance, Australian courts then started to tear into British banks.

It must be remembered that it was Australian constraints, not British restrictions, which left Privy Council appeals in place till the 1970’s and 1980’s.
With very few exceptions, the High Court of Australia has been the final arbiter on Australia’s Constitution since 1901 and has developed a distinctive approach to Australian law which has significant respect and influence in the higher courts in Britain and elsewhere.

Mr Turnbull’s approach is also irrelevant. He acknowledges that the constitutional restrictions which he mentions became dead letters by the 1930’s.
The United Kingdom Government and the representatives of the governments of Australia, Canada and other self-governing dominions of the Crown within what was then the British Empire met in an Imperial Conference in 1926, which produced the Balfour Declaration on their self-governing dominion status, and in a further Imperial Conference in 1930.

In 1931, as an outcome of the Imperial Conferences, the United Kingdom Parliament passed the Statute of Westminster. Section 4 of the Statute of Westminster stated that no United Kingdom law passed in the future would apply to Australia or the other self-governing dominions unless a dominion "requested and consented" to its application.

This effectively gave legal independence to the Commonwealth, which adopted it in 1942 (operating retrospectively from the outbreak of the second world war on 3 September 1939), but it did not apply to the Australian States.
In legislation passed (at the request and with the consent of all State Parliaments in 1985) by the United Kingdom and Commonwealth Parliaments in 1986, called the Australia Acts, the same legal independence became formally extended to the States.
As Mr Turnbull acknowledges, the 1930’s saw the appointment of the first Australian-born Governor-General of the Commonwealth, Sir Isaac Isaacs and the formal establishment of British diplomatic relations with Australia.
These developments simply built on the wide powers over "external affairs" and other national matters which were in the Commonwealth Constitution from the beginning. The alleged restrictions were not only small in practical effect from the outset. They were also small in legal fact. The fuller exercise of those powers over time was unimpeded by Britain or otherwise.
In this context, it is incorrect to fasten, as Mr Turnbull does, on the words of the Constitution about the powers of the Governor-General or the Queen without stating the fundamental constitutional conventions which govern their operation in a democratic manner. How to write down those conventions in an republican constitution is a fundamental, politicised and divisive issue.
Mr Turnbull impliedly criticises the Preamble to the Australian Constitution Act. Yet the words in style have great similarity to the opening of the United States constitution.

There is just no more independence which we can have and have had for so long.

Finally, Mr Turnbull’s approach obscures the main lesson for the present debate from the development of Australian independence within the present constitutional structure under the Crown.
We are and long have been an independent sovereign nation – with many achievements, a proud history and a bright future – under the Australian Crown within our present constitution.
This has been achieved under the present constitutional structure without the upheaval and revolution which has characterised most European and other republics. In many cases those republics have collapsed into anarchy or tyranny, consequently are into their fifth or more frequent re-invention, or excite the disrespect or contempt of their own people for their inefficiency or corruption.
Fundamental symbols and structures do not themselves change lightly, easily or (usually) peaceably in our world. It is a measure of the success of a constitution and the form of government embodied in it if it creates a stable environment for national development in other areas of vital importance.
A nation does not gain self-respect, or the respect or business of other nations, by fundamental constitutional change. It is more likely to earn contempt or disrespect if the fundamental change is perceived to be to earn the business of, or curry favour or "good relations" with, other nations. The message to others who gain such a perception is likely to be that, if such fundamentals are bartered away, why not other important matters of identity such as strong belief in human rights, liberal democratic government and other liberal values which may not be shared by the others?
The Australian constitution, with the Australian constitutional monarchy as a fundamental element, has not been a British control device. From the outset, it has been one of the few examples this world provides of stable and successful liberal democracy, within which we have achieved, and can go on achieving, goals and values which Australians consider important.


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