law
3 Mar 2009
Back Then, We Were Ahead Of Our Time
Australia's very first law is now regarded as the most fundamental of human rights. Yet most Australians aren't even aware of it, writes Geoffrey Robertson
The law was written in 1787 by Captain Arthur Phillip, while the First Fleet was — at his humane insistence — being fully provisioned for its eight month voyage. "There can be no slavery in a free land," he decreed, "and consequently no slaves."At this time, many of America's more celebrated founding fathers were whipping, selling or impregnating their slaves; it would be 20 years before Britain passed a law against slavery, and a full century before other leading nations, at the 1878 Congress of Berlin, forswore this evil trade in human flesh.
Are Australians proud of Phillip's landmark law? Most have not heard of it. It is not mentioned in our classrooms and has never been noticed by any judge in any court in the country. So much for the pride we have in the potentially iconic moments of our history — they are there for the taking, yet we fail to celebrate them or make them any part of our civic life.
The relationship in Australia between government and citizen is an interesting one. It is odd, to say the least, that the state has always been headed by a foreigner, via an arrangement that discriminates on grounds of race, sex and religion. The explanation is found in the fact that Australia was assembled by men who were British in loyalty and racist (by today's standards) in outlook: they regarded "rights" over and above those granted by common law as unnecessary and probably dangerous. In consequence there is a systemic defect in our constitutional arrangements, a yawning gap that might be closed — or at least narrowed — by a statute of liberty.
Australia is one of the few nations that lacks an "independence day". This is a day of pride in other countries, but is here a matter of indifference other than to constitutional lawyers, to whom it is a matter of confusion. No doubt to our grandchildren it will be a matter of curiosity that for so long one of our most important public offices — the Australian head of state — was closed to all except members of one massively privileged family, hailing from another country.
The 1701 Act of Settlement, which defines the UK (and hence the Australian) crown, is a blood-curdling anti-Catholic rant, which provides that any monarch who holds communion with the Church of Rome or marries a papist — heaven forbid a Hindu or Methodist or Rastafarian — must be immediately dethroned. This primitive British law enshrines religious intolerance in the very bedrock of our constitution. Its rules of royal succession are based on the feudal principle of primogeniture: inheritance down the male line, in blatant contravention of our Sex Discrimination Act. If Prince Charles converted to Catholicism or had a sex-change operation, the crown would go to his male children, then to his male brothers ahead of their older female sister.
But why should the office of head of Australia go to any of these members of a white Anglo-German Protestant dynasty, winners some centuries ago of "Britain's top model family" competition?
We have been through this before, you might think, during the 1999 referendum. But we haven't.
Then, the main argument of the "yes" republicans was the need to have an Australian as head of state. This argument has never seemed definitive: we could do quite well by electing Rupert Murdoch (an American), Richard Branson, Nelson Mandela or Angelina Jolie as our head.
What is objectionable about our present arrangements is that a constituent part of our parliament, "which shall consist of the Queen, the Senate and the House of Representatives" is a monarch, and the monarch of another country. She has the power to defeat democracy (because "the Queen may disallow any law within one year"); delay it ("A proposed law reserved for the Queen's pleasure shall not have any force"); direct its operation ("The executive power of the Commonwealth is vested in the Queen"); and by her power of appointment controls its armed forces ("The Commander in Chief of the naval military forces of the Commonwealth is vested in the Governor-General as the Queen's representative").
Our head of state is defined by a law that is sexist, racist, anti-meritocratic and discriminatory on grounds of religion. Thomas Paine's famous point, that an hereditary monarch is as absurd as an hereditary poet or an hereditary mathematician, may fail to take account of the entertainment value provided by the lesser royals, although their antics would doubtless still feature in our tabloids long after the heir-conditioning had been removed from our constitution.
Australia entered the 21st century lacking the symbols of independent statehood: it does not have a democratically elected head of state, it does not have any compact with its original inhabitants, and it does not articulate the rights of its citizens. Why not?
This is an edited extract from The Statute of Liberty: How Australians can take back their rights, by Geoffrey Robertson (Random House).
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Because we are racist cowards who still prefer the natives to be "out there", that refugees and other brown people don’t come and that we reserve the right never to actually have to be responsible for our putrid treatment of minority groups by actually adhering to our own laws let alone the world’s.
One of the clearest demonstrations of the present Head of State’s limitations arose during the Clinton presidency: the Australian governor-general of that time was visiting Washington DC in a personal visit, and sought an informal meeting with President Clinton as a courtesy call. However Elizabeth Windsor also came simultaneously to the USA (as Queen of the UK) - and Washington protocol mandarins rejected the G-G request, as while the Queen was in the country he had no status ! (… note she was there as UK monarch, not in her Australian role)
I agree with many of Roberston’s comments about Australia and the monarchy. However, it is nonsense to categorise Phillip’s musings about slavery as "Australia’s very first law". He made many other observations which I doubt had the force of law (HR of NSW vol 1 part II pp 50 - 54). For example, he said "The women in general I should suppose possess neither virtue nor honesty" and "there are two crimes that would merit death - murder and sodomy. For either of these crimes I would wish to confine the criminal till an opportunity offered of delivering him as a prisoner to the natives of New Zealand and let them eat him". Perhaps it is as well that Phillip’s power to legislate was circumscribed by his commission.
Ian Barker QC
At least the Head of State is a real person, because the ultimate allegiance asked for in our outdated and outmoded Constitution, is in fact faith in a creator God, whose representative the Queen of England really is.
So for atheists our Head of State actually represents a non-entity (God) and is therefore a completely meaningless and nonsensical concept.
Why don’t we just let some long-serving Senator or public figure of good repute (perhaps one of an Aborignal descent) represent Australians, and Australians alone as the Head of State? This person could be voted in by Parliament, the people’s representatives. We could call them Head of the State of Australia, His or Her Honour, President of Australia, it really doesn’t matter as long as they are Australian and democratically nominated and elected by the Parliament.
And since this means rewriting a new Australian Constitution, it’s also a good chance to rectify some original mistakes, like Terra Nullius, and so synchronise Republican Day with a Reconciliation Day to celebrate our new indigenous-sensitive Constitution and our newly elected Australian Head of State.
How about this for an idea, NO head of state. Let the people be sovereign.
As everyone knows, the GG has merely a ceremonial role. If the GG were eliminated, it would make no difference. So, instead of going to the expense of replacing the GG, let’s eliminate the role completely.
Of course, we should also eliminate the Governors of each state, the Governors of Vic, NSW, QLD, WA, Tas and SA.
Do you notice I didn’t include NT and ACT? They were established after 1901 and don’t have a monarch. They don’t have Governors either. If the NT and ACT can survive without a Governor, so can the six states and the federal state.
Now, there would probably be a few constitutional difficulties in eliminating the GG, as the article above points out, the GG is in fact Commander and Chief, the GG does have certain reserve powers that might need to be invested elsewhere if she were to dissappear. But having no GG is infinitely superior to having some ‘president’ or other person.
The line ‘we need an Australian head of state’, is a false paradigm. We need no head of state. An Australian head of state might be a nice incremental improvement, but it’s such a minor increment that it’s a pointless waste of time.
Let people put forward alternative constitutions and have them debated, when one garners support put it to a referendum. It’s pointless to rely on Government for the writing of a new constitution. A new constitution has to come from the people. So where is it? If you’re a republican out there, why don’t you fund it? I would if I knew of some persons who were up to the task of writing it.
According to Charles Darwin, given enough time , a thousand chimps on a thousand lap top computers (ok typewriters with quill pens on their tails)you could get the perfect constitution drafted.
Just because you don’t see the train driver does’nt mean that there is’nt one driving the train, unless it’s one of those VFT’s with a computer doing it… But one thing for sure, a chimp did’nt program it.
Is the Law not but an ass?
As far as a visit to Clinton.
I think the GG might have heard about the cigars and decided to keep well away, Queen Betty on the other hand, may have been a little curious we thinks.
Ha ha Oli
I agree highspeeddub - the idea that we need any person as head of state is ridiculous. A head of state preserves privilege we can well do without.
We humans are herd animals and need to have a ‘boss’ animal in charge. Some respondents have mentioned what are possibly our closest relatives, the chimps. Nature films show that they have either a dominant male or female running the show. If such an authority figure keeps us from each other’s throats the expense is worth it. However, the Queen does not rule for Australia. She doesn’t represent our interests in any way, she is the Queen of England. If there is, for example, an Australian trade fair in far away Europe, our Governor-general represents us. It’s ridiculous. To break ties with the British Royalty would involve a great deal of work with the States and at it’s best would sort out some of the anomalies in the way Australia staggers along. We have a boss overseas, a deputy boss in Canberra, and another deputy-deputy in each of our capital cities. I wonder how our rich country has any money left over at all. Incidentally I always enjoy Geoffrey Robertson’s thoughts and look forward to his future articles, always interesting.