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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