A Constitutional Journey

CHAPTER 1

THE JOURNEY BEGINS

This journey started in Indonesia, probably, around 1970. I initially visited Indonesia in 1967, two years after the coup that put President Suharto in power.

I returned to that country in 1969, just as the foreign investment boom was taking off, and spent 3 very successful years running my own consulting business. I had a good command of the language from 3 earlier years in Malaya and this led to ongoing involvement in negotiations between foreigners, various local companies and Indonesian officials. Discussions involving the Indonesian Constitution often arose in the course of these negotiations and it was a bit of an eye opener that many Indonesians were completely familiar with this document. I soon became aware that copies of the Constitution booklet were sold at a great number of shops and street stalls across Jakarta.

It was fortunate that my work took me to every main island in the Indonesian archipelago where I was confronted with this amazing distribution of the Constitution. I subsequently learnt that the Indonesian Constitution was taught in the schools as it embodied the 5 principles representing the Indonesian philosophy for their society. These 5 principles are known as the Panjasila and this is depicted in the Indonesian Coat of Arms.

In essence, these principles are:

• belief in god

• belief in humanity

• belief in national unity

• belief in the sovereignty of the people and

• belief in social justice.

This was my first exposure to matters Constitutional, and in a sense, I was fortunate to have this encounter with what, I now recognise as a ‘people’s’ Constitution. It is a Constitution that is read and understood by the people and relates to their everyday lives. That does not necessarily imply that it is a perfect Constitution or one that defines and limits the powers of Government, or that it cannot be manipulated.

It occurred to me, I knew absolutely nothing about my own Australian Constitution, had never seen a copy, let alone read one, nor had it every been a subject discussed at school or any other place. When my family and I returned to Australia in 1972, I decided to acquire a copy of the Australian Constitution and see what it said. As it turned out, this wasn’t all that easy but I eventually did obtain a copy through the Government Printing Office, if I remember correctly.

They say that every journey starts with one small step and reading that copy of the Australian Constitution was my first step on a 28 year journey through the absurdities, deception, misinformation, distortions, disinterest and astounding lack of knowledge surrounding this document.

CHAPTER 2

A FUNDAMENTAL QUESTION

What is the purpose and reason for having a government?

Before we discuss this issue, it helps to understand the historic background that has evolved, and been perfected, in arriving at the present day’s attitude towards Government. Clearly, there are two very distinct and opposite views on how Governments should operate—on the one hand is the view of the politicians and bureaucrats who, as a class, represent the Government—then there is the view of the vast majority of people that make up the general population. From the government point of view, they are the ‘leaders’ and are responsible for ‘leading’ the people in the direction deemed most appropriate by the Government, in other words, exercising control. From the people’s point of view, the role of the Government is to serve the needs of the population by providing services that cannot be achieved through individual effort, or to put it more succinctly, to serve a public purpose. However, the historical fact that powerful financial interests have long had an inordinate influence on the political process has now become more obvious. This has been the case irrespective whether the Government is perceived as a democratic institution or an authoritarian one.

That historic background dates back many centuries, and invariably derives from the feudal and monarchical system of government with it’s related peasantry and aristocracy.

To quote Makinde Adeyinka, "The nature, necessity and scope of the miscellany of powers exercised by the state over the nation (meaning—the Government over the people) is in one sense arguably as contentious in the contemporary circumstances of the Western world as it was in the distant pre-democratic medieval past.

Back in 1589, Della Ragion di Stato wrote, "The Reason of State" and supported the philosophical amorality espoused by Niccolo Machiavelli in his political treatise, "The Prince. Machiavelli’s contention that virtually any action taken by a ruler to preserve and promote the stability and the prosperity of his domain was inherently justifiable. Thus, the employment of violence, murder, deception and cruelty toward achieving these ends cannot be ruled out in so far as the ends justify the means.

This today has become, virtually, the universal handbook on how to organise a ‘Government’, and ultimately justifies so many unsavoury Government actions, which in turn, are replicated by anti Government movements. The inevitable result is explicitly explained by the contemporary, Vincenzo Vinciguerra.

Governments have to attack civilians, the people, women, children, unknown people far from any political game. The reason is quite simple—to force the people to turn to the state for greater security.

I have long espoused the notion, whether we believe it or not, our lives are governed by philosophy, and the fundamental philosophy of a society should be the foundation of its Constitution.

Each of us; whether we recognise it, whether we apply it, and even when we don’t know it,—conduct our affairs on the basis of a philosophy.

Philosophy, when it is all said and done, is nothing more than an idea—a concept—a suggestion of how we should live our lives. As a Human Being, we have the ability to choose any philosophy we like in determining how we want to live.

For some people it is OK to lie, cheat, steal and even murder if it is their best means of surviving. Mostly though, and this includes the vast majority of us, we simply accept what other people tell us is best for us.

A philosophy has no intrinsic worth unless it can be translated into some form of practical application. A philosophy must become a policy before it can be transformed into a system. But it is those philosophies, policies and systems that relate to people and will affect the way they live. Only people—human beings—can philosophise—and only people can translate philosophies into policies and create systems—and only people can run the systems. If we want to live in a society—in a community—in a village—in a family—we have to have some system in place to let us know how we should relate to other people in those groups. Certainly, everyone could have their own system but, without some form of common agreement and common understanding, the end result, to say the least, would be chaotic.

The fundamental reason we live in a society is because of the mutual benefits we get from cooperation, joint effort and mutual security. We should not live in a society that has no benefits for our mutual wellbeing and happiness, but unfortunately, through necessity rather than choice, many of us do.

It comes back to philosophy—which philosophy should we adopt as the basis for establishing the systems that will make the type of society we wish to live in?

If we are going to set up a system to establish the standards by which we wish to live together as a society, we need to ensure the primary purpose of that system is the protection of individual ‘rights’ for each of its citizens. In truth, the only ‘rights’ that can exist are those which can be sustained. The concept of ‘rights’ always involves the recognition of a responsibility to respect the ‘rights’ of other members of the society to which we belong.

Once we abdicate the responsibility for determining the philosophy that is ‘best’ for us and our society and accept, without question, the philosophy someone else says is ‘best’ for us, we automatically establish a ‘power’ structure. Once this structure is in place its practitioners, inevitably, develop a lust to maintain and enhance the control over the people whom, rightfully, they should be there to support and protect.

As far as I can see, if a society wishes to establish a set of standards aimed at harnessing the cooperation and relationship between its members, it can only be achieved in two ways. I would prefer to see this done by means of a mutually agreeable harmonising approach through the rule of law and a Constitution. The only other alternative is rule by force.

The problem lies in finding the best way to translate the desired philosophy into a policy that can then be developed into a workable system for the benefit of people. The solution has been found totally elusive throughout the, relatively, short history of mankind.

Among the reasons society chooses to form a Government is to ensure a supply of what they class as, essential services. In modern day parlance, these include such things as a drinkable water supply, a workable sewage system, a continuous and reliable electricity supply, a similarly reliable postal service and a convenient road and transport system. These are but a few of the essential services a modern society needs in order to function, and is the reason society chooses to delegate the responsibility to a Governmental system to provide these essentials. To the extent that the private market can produce sensible and affordable services in selected and designated parts of these essential services, they should be encouraged to do so. The private market’s main area of interest, and responsibility, is in the commercial enterprise of manufacturing, service industries, resource development, sales and marketing.

In today’s world of Commercial businesses, everything is controlled by the bottom line, and consequently, anything that hinders the all consuming profit motive is abhorred. Things like regulations, unions and taxes. However, many citizens of a society understand the need for regulations, unions and the things taxes, if intelligently spent, can do for them. If intelligently spent are the key words in respect to the way the Government of a monetary sovereign nation, such as Australia, uses the resources and funding available to them. It is in this respect that the people of a society will always get the Governments they deserve—UNLESS—the people control their Constitution and define the fundamental rules for regulating the way they will allow their Government to operate.

Only then will they have a chance to get the type of Government they WANT."

CHAPTER 3

A STEP BACK INTO THE PAST

On reading this Australian Constitution, it became very obvious why it is never taught in any school of the Commonwealth. Not only is it cumbersome and difficult to understand, but it also bears no real relationship to the way we are governed. It is certainly not a document that is written with the ‘people’ in mind and nor does it make any attempt to expound a philosophy which could be used as a foundation for building our Australian society.

It piqued my curiosity as how this document evolved and that led me into the difficult and partially hidden path of early Australian Constitutional history. As it turned out, this proved to be an intriguing excursion which delved into the minds and lives of some of our, so-called, ‘Founding Fathers’. I learnt things about our early history that I had never known. This was no easy research as the following information comes from a wide variety of sources, often contradictory.

THE STARTING POINT

While there were various advocates for the concept of a united Australia, nothing much came from these early efforts. The British Government made an attempt in 1842 by appointing Sir George Gipps as Governor in Chief of N.S.W. and Van Diemen’s Land. In 1849, a report from a Committee of the Privy Council in London, suggested the creation of a position of Governor of Australia, authorised to convene a General Assembly of Australia. In 1851, the Governor of New South Wales, Sir Charles Fitz Roy, was in fact appointed the first Governor General of all Her Majesty’s Australian possessions. However, shortly after 1855, when Governments in N.S.W. and Victoria were inauguration, the office of Governor General was discontinued.

Although the Federal concept was kept alive, there was a decided lack of enthusiasm at the official level. Between 1860 and 1880, issues of concern arising between the Colonies were dealt with through a series of Intercolonial Conferences. At one of these Conferences held in Melbourne in December of 1880, a motion was passed to draft a Federal Council Bill for subsequent submission to a meeting in January 1881. The Bill was eventually abandoned through lack of support from the Colonies.

It was not until 1883 that Federation again arose as a serious issue, prompted this time by outside concerns. The fear that Germany had designs on New Guinea and, with France coveting New Caledonia; it was sufficient incentive to initiate a Federal Australasian Council. This Council eventually met for the first time in Hobart, Tasmania, on the 25th January 1886. Although the Council continued to exist until 1899, meeting in alternate years, it achieved little to justify its existence.

OUR EARLY COLONIAL HISTORY

In 1855, the original colonial Parliaments of Victoria and New South Wales operated on the ‘Representative principle’, but specifically in terms of representation of interests. The estimated population of Victoria in 1855 was 260,000 people but only a certain number of MEN were allowed to vote, provided they met the qualifications of property, wealth and residence. The 47,900 male voters represented 18% of that estimated population at the time. In Victoria, the thirteen country seats averaged 250 votes each while the eighteen seats for Melbourne and Geelong averaged 1350 votes per seat. The eleven additional Goldfield seats averaged 1850 votes each. Only about 30% of the males in Victoria were enrolled to vote for the Assembly and only 7% for the Legislative Council.

In 1855, Parliamentarians were not paid; hence, only men of means were in a position to nominate. There was absolutely no concept of universal suffrage in that day and age nor was the concept of representative democracy a viable or accepted proposition. The Parliamentary system of the day was strictly controlled by vested interests of the ruling class with few, if any, forays into the issues of the unfranchised majority. To a large extent, this was in keeping with the customs and traditions prevalent at the time rather than any sort of deliberate attempt to deny people a say in Government. Unfortunately, these attitudes prevailed right through to the end of the century and into the early 1900’s, and consequently, had a direct bearing on the formulation of the Australian Constitution.

SIR HENRY PARKES

In 1888, Sir Henry Parkes tried to have the name of the New South Wales Colony changed to ‘Australia’ but was unsuccessful in his endeavours.

Probably, the real spark that ignited the fires leading to the first serious attempts to discuss Federation were lit by Major General Sir Bevan Edwards. This was a result of his report in 1889, on the need for a unified defence of the Colonies.

Undoubtedly, one of the key events in the history of Australia’s journey towards Federation was the Tenterfield Convention held on the 24th October 1889. Parkes took the initiative to start the ball rolling with his address to the convention.

Why he did this, has long been the subject of conjecture.

Parkes was always a man of vanity—he sought to glorify himself in a number of ways and tended to be intolerant of opposition. He was also a man of questionable morality, especially in terms of the Victorian age in which he lived.

In 1889, he was embroiled in a scandal because of his second marriage to the mother of his illegitimate children. The Federation move offered the chance to deflect some of the attention away from this furore. Even to the end, Parkes was ambitious to receive the credit for setting the Federation movement in motion.

Parkes died in 1896 and did not live to see his idea of Federation become a reality but he has been accorded much of the honour he sought by being named as one of the ‘Founding Fathers’ of the Constitution.

The Tenterfield Convention was promoted as the ‘Federal Council of Australasia’ to include representative public men from each of the colonies as well as New Zealand and Fiji. In all 12 representatives attended, including 2 from New Zealand but, none from Fiji, as the nominee arrived too late to participate. Each Colony was represented by a Politician and a Senior Public Servant.

It can be safely said that not one representative had any abiding understanding, or commitment, to the concept of a ‘peoples’ Democracy’.

This conference was, purely and simply, a starting point for the sharing of ‘powers’ between the Colonies and a strong Central Executive, with the initial focus on some form of a common defence effort. The vital concern of each Representative was to maintain the vested interests of their Colony. There was absolutely no evidence of the general public’s involvement or aspirations being a driving force behind this undertaking. The quest for Federation started with the Politicians and the Public Servants for the express benefit of the said Politicians and Public Servants, and unfortunately, little has changed today. My research has indicated that part of the motivation for Federation was the goal of the smaller Colonies being able to benefit at the expense of the larger Colonies while, the more populous Colonies saw the opportunity to gain greater control over an enlarged ‘Nation’.

THE 1891 CONSTITUTIONAL CONVENTION

The 1891 Constitutional Convention was held in Sydney in March of that year. It gave birth to the first attempt in drawing up a draft Constitution that might