Thawing the frozen continent - Page 6

From Griffith REVIEW Edition 19: Re-imagining Australia
© Copyright Griffith University & the author.

Written by George Williams

SYMBOLS MATTER. THEY DEFINE who we are and can be a powerful way of redressing injustice and building social cohesion around shared goals and values. Prime Minister John Howard always understood this, and during his leadership Anzac and Australia Days gained new significance. After many years disputing the value of symbolic reform in Indigenous affairs, he told the Sydney Institute in October 2007, ‘I announce that, if re-elected, I will put to the Australian people within eighteen months a referendum to formally recognise Indigenous Australians in our Constitution – their history as the first inhabitants of our country, their unique heritage of culture and languages, and their special (though not separate) place within a reconciled, indivisible nation.' He declared that his ‘goal is to see a new Statement of Reconciliation incorporated into the Preamble of the Australian Constitution'. Howard was right – it is long past time that Aboriginal people were recognised in the Constitution. These issues are examined further in the next section.

The other major symbolic agenda is the Australian republic. The Constitution is at odds with the reality of Australia's political and legal independence, and its contemporary values. It is more than incongruous that Australia's head of state is the monarch of a foreign nation born to a position, according to a 1701 British statute, that ranks men over women and rules Catholics ineligible. Sexism and religious discrimination are unacceptable tests for office in modern Australia, and should not determine who is eligible to be the country's head of state.

The problem lies with the most basic law: section 2 of the Constitution suggests that Australia is not an independent nation and establishes the Governor-General as the Queen's representative: ‘A Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.'

The now obsolete section 59 even grants the Queen power to ‘disallow any law' passed by the federal Parliament. The Constitution is only reprinted in Australia as part of the UK Parliament's Commonwealth of Australia Constitution Act 1900, the implication being that it – and not the Australian people – is the source of the power and authority of Australian laws.

Despite the failure of the 1999 republic referendum, Australia is in fact both politically and legally independent. The legal shift was finally resolved by the Australia Acts of 1986, which removed any right of appeal to the Privy Council. The symbolic conflict between the text of the Constitution and actual Australian independence remains unresolved, and both undermines a sense of identity and distorts perceptions within and outside the country. Symbolism is an important value in our system, and the Australian Constitution ought to be amended to reflect this and establish a republic with an Australian head of state appointed without reference to London.

RACE AND DISCRIMINATION shaped the way the Australian Constitution was drafted in the 1890s. At the time, it made sense to trust that British traditions of the common law and responsible government would protect human rights. There was, however, an additional reason why guarantees of rights were not included in the new Constitution: the framers did not want to prevent the new parliaments from passing racially discriminatory laws. The Constitution said little about Indigenous peoples, but what it did say was entirely negative. The race power of section 51(xxvi) enabled the Federal Parliament to make laws with respect to ‘people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws' while, under section 127, ‘In reckoning the numbers of the people ... aboriginal natives shall not be counted'.

By today's standards, the reasoning behind these clauses was clearly racist, designed to restrict the liberty and rights on the basis of race. Sir Edmund Barton, later Australia's first prime minister and one of the first members of the High Court, made the position clear when he told the 1897-98 Constitutional Convention that the power was necessary to ‘regulate the affairs of the people of coloured or inferior races who are in the Commonwealth'.

Tasmanian attorney-general Andrew Inglis Clark disagreed, and argued for a provision taken from the United States Constitution requiring the ‘equal protection of the laws'. Others were concerned that this clause could override laws, such as those in Western Australia, under which ‘no Asiatic or African alien can get a miner's right or go mining on a gold-field'. Sir John Forrest, the premier of Western Australia, summed up the mood of the convention when he stated, ‘It is of no use for us to shut our eyes to the fact that there is a great feeling all over Australia against the introduction of coloured persons. It goes without saying that we do not like to talk about it, but still it is so. I do not want this clause to pass in a shape which would undo what is about to be done in most of the colonies, and what has already been done in Western Australia, in regard to that class of persons.'

Clark's provision was rejected and section 117, which prevents discrimination on the basis of state residence, was inserted instead. In formulating the words, Henry Higgins, another early High Court judge, said it ‘would allow Sir John Forrest ... to have his law with regard to Asiatics not being able to obtain miners' rights in Western Australia. There is no discrimination there based on residence or citizenship; it is simply based on colour and race.'

In the 1967 referendum, more than 90 per cent of Australians agreed to strike out the words ‘other than the aboriginal race in any State' and to delete section 127, yet the racist underpinnings of the Constitution remain. While the referendum extended federal law to Indigenous people, there was no requirement that such laws be positive. This silence meant the racially discriminatory intent behind the races power extended to Aboriginal and Torres Strait Island people; there was no provision that the power be applied only for their benefit.