In 1967, a referendum was held to give to amend Section 51 (xxvi) of the Australian Constitution to remove the discriminatory reference to aborigines and to give the same responsibility to the Commonwealth for aboriginal people as it had towards other Australian citizens. During the lead up to the referendum, which was supported by all major political parties, it was widely understood that the passage of the referendum would give the aboriginal people of Australia the same rights, responsibilities, privileges and duties as citizens generally. With that understanding, it was carried by a vote of over 90% of the people, and every State, in favour.
Since that time, we have learned that, after all, that wasn’t what we were voting for. Far from aborigines enjoying the same status in society as other Australians, they have been given a different status altogether. Legislation grants a range of benefits and privileges to aboriginal people exclusively, which are not available to all Australians. The policy of assimilation, which was the policy at the time of the 1967 referendum, has since been ditched and, in its place, we now have a policy, if you can call it that, of separate development. While originally, this was intended to correct inequities between aboriginals and other Australians, it is now widely recognised that funding to aboriginal groups is way out of control, with no accountabilities and, apparently, no responsibilities. It is clearly not what was intended when Australians voted overwhelmingly to amend the Constitution in 1967.
In a similar vein, in 1986, the Hawke Government passed the Australia Acts, the effect of which was to remove from Australians the right to appeal to the Queen in Council against decisions of the High Court, a right enshrined in our unwritten Constitution. Thus, we saw a significant part of our Constitutional arrangements just swept away without reference to the people by way of referendum. At the same time, the Hawke and Keating Governments stooped to a new low of cynicism in their High Court appointments, making appointments, not on the basis of judicial competence, but on the basis of political correctness.
Since the removal of the historic right of appeal by citizens to the Crown, enshrined in our common law, the High Court has embarked upon an activist role that is denied them under our Constitution, safe against appeals to the Privy Council which would almost certainly have overturned them.
Australians, for example, are now subject to laws passed by the United Nations, thanks to a decision of the High Court, which gives UN Conventions legal status Australia. This, of course, is an illegal decision, with the Judges thumbing their nose at Section 1 of the Constitution, which gives legislative power to the Parliament.
The majority opinion in the Mabo judgement, which relied on “international opinion”, whatever that is, to apply the principles in Torres Islander Eddie Mabo’s case across the face of mainland Australia, is widely recognised by impartial legal scholars to be seriously flawed and, were an appeal available, most likely to be rejected.
In the events of these last thirty years, of which these are just some examples, Australia democracy has been seriously weakened, not only politically, but socially and morally also. That being the case, as we approach this referendum, we should be very careful about taking politicians at their word. Given that there are now no constraints on governments or activist High Court judges anxious to grab some power for themselves, is it wise to try and adapt our Westminster Constitutional system to a republican mode of Government? How better and more sensible would it be to undertake the development of a Constitution designed specifically for a republic. It is said that a camel is a horse designed by a government committee, and our Constitution is likely to be a bit of a camel as well, if the referendum questions are answered in the affirmative on November 6th. Worse, it is likely to result in further abuses of power by governments and officials.
If the case for a republic is unanswerable, let’s wait until we are offered the right model.