Daily BulletinDaily Bulletin

The Conversation

  • Written by The Conversation
imageThe Constitution has been very successful in setting out how Australian federalism will work.Museum of Australian Democracy

When the men who came together in the 1890s to draw up a constitution to enable the Australian colonies to federate, what did they think they were doing? Looking at the debates and the Constitution itself, one thing is certain. They were not drawing up a document that defined what it means to be an Australian.

They were engaged in creating a document that would be acceptable to all parties and enshrined the political and legal principles which they had inherited from Great Britain. They looked to their British inheritance because they believed, quite correctly, that the (unwritten) British Constitution worked. They wanted a system of government that would be durable.

What they produced is not an exciting document embodying abstruse political principles, but one that has been very successful in setting out how Australian federalism will work.

Why the Constitution works

It is very important to realise that the Australian Constitution has nothing to do with identity politics. It does not deal with substantive issues, as do other constitutions, such as the Irish Constitution – which was why the Irish people needed to hold a referendum on same-sex marriage. The Australian Constitution’s focus is procedural.

The one concession to identity was the inclusion of God in the preamble. It was something that many ordinary Australians desired but was not particularly favoured by convention delegates. Edmund Barton, in particular, spoke against it. Section 116, forbidding government support of any religion, ensured that it would have no legal implications.

For this reason, Australian intellectuals have often found the Constitution to be a rather dry document not to their taste. It does not fire the imagination – especially the nationalist imagination. Nationalists would prefer statements setting out “who we are”.

The Constitution has by and large worked very well. This is not to deny that there have been problems, such as the way in which it works to confer excessive financial and taxing power on the central government. But, by and large, the Constitution works because there is a willingness on the part of both the federal and state governments to make it work. This mirrors the spirit of co-operation that brought it into being.

The problem with constitutional recognition

There are some problems, which include the Commonwealth’s power to make laws with regard to a particular race. Such a power is an embarrassment in an age of equality and should be consigned to history.

But the current move to recognise Australia’s Indigenous people in the Constitution is worrying. This is not because of its intent. That intent is an expression of the traditions of justice we have inherited from Britain, going back to Magna Carta. Rather, the problem lies in the way in which it changes the nature of the Constitution away from a procedural document by introducing issues of identity into it.

In this regard, it is worth noting that the attempt to introduce God into the preamble in the 1890s led to a vigorous campaign against such a move by the Seventh Day Adventists. They feared that it would be a prelude to the enforcement of Sunday observance.

There is much to be said in favour of recognition of Indigenous Australians somewhere in Australian public life. But it is important that any such recognition should not become the foundation for future attempts to turn the Constitution into a document that comes to focus on issues of identity. We need to appreciate that the Constitution has served us so well because its basic function is procedural.

Equally, it is important that any statement – even in the preamble – should not have any constitutional implications. It should be a simple statement of recognition. Moves to address issues of inequality must be legislative in nature, not constitutional. Constitutionally, all Australians must be treated equally.

This is not an easy or simple matter, especially taking into consideration the issue of removing the race power from the Constitution. However, Australia’s Founding Fathers did find an elegant way around the problem of finding a place for God in the Constitution. But it took much discussion.

It is only by facing the full complexity of the issue of Indigenous recognition that a workable solution will be found to this issue.

Gregory Melleuish receives funding from the Australian Research Council. He is a member of the Academic Advisory Board of the Menzies Research Centre.

Authors: The Conversation

Read more http://theconversation.com/australias-constitution-works-because-it-doesnt-define-national-identity-43253

Federal departments had no specific COVID plan for aged care: royal commission counsel


Australia's politicians have learned that in the era of coronavirus, the future comes at you fast


5 Reasons to Choose Pipe Relining


The Conversation


Did BLM Really Change the US Police Work?

The Black Lives Matter (BLM) movement has proven that the power of the state rests in the hands of the people it governs. Following the death of 46-year-old black American George Floyd in a case of ...

a Guest Writer - avatar a Guest Writer

Scott Morrison: the right man at the right time

Australia is not at war with another nation or ideology in August 2020 but the nation is in conflict. There are serious threats from China and there are many challenges flowing from the pandemic tha...

Greg Rogers - avatar Greg Rogers

Prime Minister National Cabinet Statement

The National Cabinet met today to discuss Australia’s COVID-19 response, the Victoria outbreak, easing restrictions, helping Australians prepare to go back to work in a COVID-safe environment an...

Scott Morrison - avatar Scott Morrison

Business News

5 Reasons to Choose Pipe Relining

There’s nothing like a damaged pipe to stress you out and keep you up throughout the night. Depending on the extent of the damage, a pipe repair can be a complicated and time-consuming process. ...

News Company - avatar News Company

Reinventing The Outside Of Your Office

Efficient work is a priority in most offices. You need a comfortable interior that is functional too. The exterior also affects morale. Big companies have an amazing exterior like university ca...

News Company - avatar News Company

Kaspersky and Ferrari partnership: tailoring cybersecurity for an iconic brand

Kaspersky is commemorating the 10 year anniversary of its strategic partnership with iconic, global brand - Ferrari. The cybersecurity company is a sponsor of the brand’s Formula One racing team...

News Company - avatar News Company

News Company Media Core

Content & Technology Connecting Global Audiences

More Information - Less Opinion