|Our constitutional heritage is being slowly worn away|
|Written by Professor David Flint AM|
|Friday, 21 August 2009|
The Order of Australia Association 21 August, 2009.
[Australia’s constitutional heritage is the result of a slow evolution of the Westminster model into our indissoluble Federal Commonwealth under the Crown. As Burke said, society is not just a partnership between the living, it is a partnership bewteen those living,those who have gone before us, and those yet to be born.
To understand the present and plan for the future, we have to know the past.
But just as the beautiful Queen Victoria Building (pictured above), which Pierre Cardin described as "the world's most beautiful shopping centre", was once to be demolished by those who did not appreciate its value, so too many of Australia’s politicians are gradually whittling away at our past, at our heritage.
What is the answer? David Flint told about 200 members of The Order of Australia Association NSW Branch Annual Dinner on 21 August 2009 that we must learn to value our heritage. That is why ACM has developed the latest version of its education project, The Crowned Republic.
This is an attempt, without government assistance, to ensure that Australians, and especially the young and those new to this country, can better understand and appreciate the underlying system which assures our freedom and our ability to achieve.
In moving the vote of thanks, Sir Laurence Whistler Street AC, KCMG, QC, the former Chief Justice of the Supreme Court of New South Wales and Lieutenant Governor of the State, reminded the assembly of the work undertaken by the late Governor-General and former NSW Chief Justice, Sir John Kerr, in preventing the demolition of that jewel in the heart of Sydney, the old Supreme Court building designed by the celebrated colonial architect Francis Greenway. This was another example of the successful defence of our architectural heritage.]
Ladies and Gentlemen,
May I offer you, members of the Order of Australia Association my congratulations on the awards you have received. It is indeed right and proper that, through the Crown, a grateful nation has recognized your many contributions.
I am in brief a modest man. In that context I do recall the observation of Sir Winston Churchill concerning his rival and successor, Mr. Clement Attlee.
“Mr. Atlee," Sir Winston said," is a modest man – with much to be modest about.”
I fit very much the old saying, attributed to Churchill and to Shaw - among others: “ A man who is not a socialist at 20 has no heart; a man who is a socialist at thirty has no brain.”
I must hasten to say I never used that in any of the referendum debates against Malcolm Turnbull and his colleagues.
Mr Turnbull was not so kind to me. In his diary of the referendum campaign “Fighting for the Republic” he says I speak with an "affected pseudo British accent",( where would he have got that from) that I am not a "constitutional lawyer at all" and he predicts my book for the 1999 referendum campaign, The Cane Toad Republic, will be remaindered.
I must admit to a certain degree of schadenfreude when, some months after Mr. Turnbull’s book appeared, a friend phoned me to tell me he had seen it on sale at the University Cooperative - at a substantial discount.
Incidentally, in his diary, four months before the referendum, Mr Turnbull made a startling admission. The entry reads: "We have Buckley's chance of winning." Why? "The problem is nobody is interested." What a pity he didn’t tell us; we could have save dall that trouble and money.
His book was called “Fighting for the republic.” A colleague who will remain anonymous because he may be seeking preselection, said cruelly that it should be called “Whingeing for the republic”
Now I must say my speech is not about Malcolm Turnbull, but it was inspired by what is now known as “Utegate,” when relying on an email subsequently found to be false, Mr. Turnbull called for the resignation of the Prime Minister Mr. Rudd. We may dismiss this as political manoeuvring – that at least seems to be the view among members of the public.
I think Laurie Oakes was right ( Daily Telegraph 8 August) when he said that government politicians could not claim to have more noble sentiments than those exhibited by Opposition leader Malcolm Turnbull in the affair.
This brings me to our heritage. When I was a boy, two major newspapers and the Lord Mayor campaigned to pull down what they described as a “Victorian wedding cake.” This was that wonderful edifice next to the Town Hall, and since restored by a Malaysian company. It was the Queen Victoria Building. They wanted to replace it with civic square or a car park. The campaign was strong but good sense eventually prevailed. Over the next few years much of Sydney disappeared. Melbourne, a gracious and planned Victorian city has also lost too much of her past.
Why are we in the top ten countries in the UN Human Development Index which measures health, wealth and education? How were we able to contribute so much to the freedom of other countries, one of the few which fought from the beginning to the end in both world wars, and who lost more than most in the first World War? How are we able to be, on a per capita basis, the world’s leading sporting nation? How are we one of the leading Nobel Prize–winning countries, again in per capita terms?
Why is this so? It is in the context in which we live, in the way we govern ourselves. It is our constitutional system, in the broadest of senses. It is this system which gives people the freedom and the means to fulfil their lives.
What is our constitutional system? A constitution was described succinctly and eloquently by Bolingbroke as "that assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed to certain fixed objects of public good, that compose the general system, according to which the community hath agreed to be governed".
Without understanding the past we cannot understand the present, and we are unarmed in relation to the future.
Life is a continuum. Edmund Burke put it well when he said “ Society is ...a partnership not only between those who are living, but between those who are living, those who are dead, and those yet to be born.”
Our constitutional system is not something recent, and although the federal constitution took effect on 1 January 1901, it goes back through the inauspicious foundation of the penal colony not far from here in 1788, through that golden thread which takes us back to the Glorious Revolution of 1688 – the most important beneficial event in the world in the last five half millenium - and back to the Magna Carta of 1215.
Society is indeed a partnership between the living, those who have gone before us and those yet to be born.
There are two features of that foundation which all Australians should be aware of. First, it ensured this would be the only continent not to know slavery. This was because our founders, Governor Phillip and Lord Sydney were irrevocably opposed to it. "In a new country there will be no slavery and hence no slaves.” (Phillip also ordered that Aborigines be treated well, and indicated that the murder of an Aborigine would be punished by hanging.)
The second point is that even although it was a penal colony, it was a colony under the rule of law. It was not, as Robert Hughes has wrongly informed the world, a gulag.
Lord Sydney, whom too many glibly dismiss as being of no consequence, took a decision which would have a fundamental effect on the colony. Instead of just establishing it as a military prison, he provided for a civil administration, with courts of law. Just consider one example. An early civil action brought by convicts against a ship captain for theft was defended on the ground that at common law felons could not sue. The court required the captain to prove this, which was of course impossible since the records were in England. Can Mr. Hughes give us a similar example of litigation by prisoners in a Soviet gulag?Then within one generation of the founding of the penal colony there was an extraordinary development. This was the grant by Great Britain to the Australian colonies, in the middle of the nineteenth century and initiated before the Eureka Stockade, the full panoply of parliamentary self government. No other colonial power did this to her colonies. Why? Because they could not. The other European powers, with the exception of the Dutch, did not have this concept at home. And the Dutch showed no interest in granting self-government to their colonies.With British encouragement, we next decided on federation.
It was federation with two unique features. It was the first and only federation of a whole continent. And it was achieved without war, rebellion, deaths, or indeed any violence. So it was, in world history, a unique and extraordinary event.
As Founding Fathers Sir John Quick and Sir Robert Garren said:
“Never before have a group of self-governing, practically independent communities, without external pressure or foreign complications of any kind, deliberately chosen of their own free will to put aside their provincial jealousies and come together as one people, from a simple intellectual and sentimental conviction of the folly of disunion and the advantages of nationhood.
"The States of America, of Switzerland, of Germany, were drawn together under the shadows of war. Even the Canadian provinces were forced to unite by the neighbourhood of a great foreign power. But the Australian Commonwealth, the fifth great Federation of the world, came into voluntary being through a deep conviction of national unity.
"We may well be proud of the statesmen who constructed a Constitution which whatever may be its faults and its shortcomings has proved acceptable to a large majority of the people of five great communities scattered over a continent; and proud of a people who, without the compulsion of war or the fear of conquest, have succeeded in agreeing upon the terms of a binding and indissoluble Social Compact."
A comparison with another similar country demonstrates the extraordinary success of the Australian Federation. In 1901, Australia had one of the highest incomes per head in the world, an honour it shared with another former settled colony, Argentina.
We had much in common. Both were countries of European settlement, both supplanting an indigenous population, although Argentina's was treated much more harshly. Both attracted large scale immigration, both imported much of their essentially Judaeo-Christian culture and their European language.
Both were developed with substantial British investment, and both were rivals for shares in the lucrative British meat market. But our histories since then could not have been more different.
Australia remains one of the world's oldest continuing democracies —Argentina has alternated between a symbolic democracy behind which a wealthy plutocracy ruled, and bouts of dictatorship, usually military.
The last resulted in living memory in the "disappearance" — the murder — of thousands of Argentinians, the precise number of which is still unknown. The economy has undergone a series of crises. The legal system is discredited and, unlike Australia, Argentina has contributed little to the worldwide struggle for freedom and democracy, certainly nothing like Australia.
More Australians died fighting in the First World War than any other non-European power, even the US! We were one of the very few who fought from the very beginning to the end of the Second World War. Argentina was a neutral, at least for most of the duration, of both. Today the Argentinian economy is ravaged, the people poor. Australia, in Purchasing Power Parity terms (PPP), is amongst the world's tenth richest
Now the Argentinian people are in no way inferior to the Australians — just as hard-working, as honest and as brave.
What is wrong? The difference is in the underlying institutions and values of the two countries. While both began with the benefits of a Judaeo-Christian culture and an advanced European language,
Australia from its beginnings — even as a penal colony — enjoyed both the rule of law, and the central role of an institution above politics but under the law, the Crown. It was inevitable that self-government under the Westminster system would soon follow.
That was not at all inevitable for Argentina. Why? Because the colonial power, Spain, did not herself enjoy these benefits, and therefore could not give them to her colonies.
While Argentina had to fight for her independence, Australia was given hers. The institutions we have — democracy, the rule of law, parliament, responsible government, the Westminster system, an independent judiciary and an institutional heart beyond political capture, namely the Crown — are the foundations on which our country is governed peacefully, democratically and effectively. While those institutions have all been adapted and Australianised, they still allow us to withstand the enormous stresses that are inevitable in the life of a nation.
That is how we have played such an extraordinary role in the world's conflicts, the last being the liberation of East Timor.
That is how we maintained our democracy both under the cold winds of world economic crises, especially the Great Depression, and during those two terrible world wars.
On the ABC Foreign Correspondent programme broadcast in April 2002 about the Argentinian crisis of 2001-2002, members of an Argentinian family indicated they wanted, desperately, to emigrate to Australia or Canada. They said that 80% of their friends and relatives wanted to leave too.
A former minister in the Government of President Carlos Saul Menem said that Australian and Argentina are similar countries, but with one important difference. That important difference was:
"Australia has British institutions. If Argentina had such strong institutions she would be like Australia in ten or twenty years."
Australia does indeed have that rare asset in the world, strong and stable institutions, as well as the values that go with them, and which underscore them.
The lesson is not so much to find a perfect government, although we should of course keep those in office who demonstrate prudence and competence in the nation's affairs.
Good governance is elusive. From the Revolution to the present constitution, that most civilised country, France, has experimented with a revolutionary regime, two empires, three monarchies, a fascist regime, and five republics. Of the republics, two were attempts to copy the Westminster system, one was American style executive presidency and the latest is an attempt to mix the two. The Fifth Republic almost collapsed in 2002, as the Fourth had in 1958. The choice in the second round presidential elections President in 2002 was between Jacques Chirac and nationalist and anti-immigrant Jean Marie Le Pen. A popular slogan at the time was “ “Votez pour l'escroc et pas le facho” (Vote for the crook, and not the facist.)
What do we want most in government? Thomas Babbington Macaulay put it succinctly as an “auspicious union of freedom and power” It requires stable government, but one where there are checks and balances against the abuse of power. Montesquieu proclaimed that this had been first and best achieved in England through the separation of powers. Acton explained the reason for the separation of powers in his timeless warning that “power tends to corrupt, and absolute power corrupts absolutely. “
Now you might think that all this is easy to achieve, that it is easy to write a constitution. It is indeed easy, very easy, to write a constitution. The difficult thing is to design one which works and which lasts. You can count those on your fingers.Good governance is achieved through trial and error and not through the mind and writings of one man, however brilliant. The result can be imperfect, it can be untidy but above all it works. This reminds me of the celebrated comment from an énarque, a graduate of an the elite French School of National Administration when some or other Anglo Saxon system was being discussed: "Well, it may work in practice, but does it work in theory?" (Ca marche en pratique, mais en theorie ... ?) (Sydney Morning Herald, 31 October 2002). Rather, the lesson is to maintain, and not recklessly undermine, a constitutional system which has been shown to work and work well over an extended period of time. And there certainly are not many of those in the world.
Do we Australians appreciate what we have? To keep your heritage you have to understand the value of what you have. The Lord Mayor of Sydney in 1959, and the Sydney Daily Mirror did not understand the value of the Queen Victoria Building. The “utegate” affair demonstrates that today’s politicians do not on the whole value an independent public service, something central to the Westminster system.
According to a 1988 Constitutional Commission survey, 50% of respondents from the general public were not even sure Australia had a constitution and 82% were unaware of its contents.
In response to this substantial programmes in civics education have since been developed nationally, at great expense. Has that worked? Sadly it has not.
In a 2007 official survey, Year 10 students were asked the elementary question, “What is the Australian Constitution?”
They were given four possible answers:
· the rules about how the major Australian political parties are run;
· the policies of the Australian federal government;
· the framework for the way Australia is governed; or
May I recall once again of Burke’s wise advice, that society is indeed a partnership between the living, those who have gone before us and those yet to be born. To understand the present and plan the future, we have to know the past.And finally let me congratulate you once again for your many contributions to the nation, contributions which have been recognized by the Crown and for the nation in the Order of Australia.
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