The Sixth Pillar: Federation
This is an edited version of a speech Professor Flint delivered to the Order of Australia Association. The themes here are developed in Give Us Back Our Country, How to Make the Politicians Accountable … on Every Day, of Every Month, of Every Year, by David Flint and Jai Martinkovits (Connor Court).
In addressing you as “ladies and gentlemen”, it appears I am in breach of the instructions given to schoolchildren under the Safe Schools program. This decrees that phrases such as “ladies and gentlemen” and “boys and girls” should be avoided.
That is what is being taught or proposed to be taught to our children. Now, let us consider what is no longer being taught to our children—our heritage.
In 2006, a report about the teaching of history in Australian schools found that three-quarters of school students surveyed did not know why we celebrated Australia Day. The New South Wales Minister for Education argued that, at least in that state, the teaching of history was of the requisite standard. Asked by a radio presenter why we celebrate Australia Day, the minister replied, “Because that’s the day when it became a nation, the day the states joined together.”
Whether or not students (and a minister of the Crown) know why we celebrate Australia Day, they have been taught little about that crucial golden thread that comes to us through the Magna Carta, the Glorious Revolution, settlement and what has transpired since. Even the story of Anzac is under attack, according to Mervyn F. Bendle’s account of what he describes as “the history war on Australia’s national identity”.
The result is that our children know little about our heritage. The picture appears just as bleak in significant areas of tertiary education, where free speech is under attack, bureaucracy is dominant, and too many students are admitted to courses for which they are unprepared and which are inappropriate for their aspirations.
Yet record sums of money are being poured into education, and students are amassing substantial debt even before they work out how they will acquire the house which was once considered the birthright of all Australians. Add to that the fact that they are the generation who will pay the increasing interest on increasing government debt and will also be liable for the eventual repayment of that debt.
Australia’s youth are being denied the opportunity to know, understand and appreciate their heritage. But that is not all. This failure in educational administration is, I believe, but another example of a serious decline in the quality of the governance of this country.
Let us examine the failure to educate our children about our heritage. Young people are not being given the opportunity to understand and learn from those things which have made Australia such an exceptional nation.
Why has Australia been so successful? Are Australians racially superior? Is it our weather? Is it geographical? Or is it that we are endowed with such rich natural resources that we could never fail?
The latest research, such as that by MIT professor Daron Acemoglu, Harvard professor James A. Robinson, and Harvard and Oxford professor Niall Ferguson, concludes that not one of these factors is definitive. Otherwise, they ask, how can we explain why Botswana has become one of the fastest-growing countries in the world while other African nations are mired in poverty and violence? Or why is North Korea a failure and South Korea a success? They conclude that political and economic institutions determine economic success or failure.
The truth of their thesis can be illustrated by recalling that at the time of our federation, Australia and Argentina were the world’s richest countries. Argentina did not then engage in the two world wars and did not suffer the enormous losses, both in terms of human potential and wealth, that Australia did. So Argentina should have been more successful than Australia. However, the twentieth-century history of Argentina was one of instability, periods of brutal dictatorship, and economic decline.
Why is this? As a former minister in Argentina’s Menem government observed on ABC’s Four Corners in 2002, there is one important difference between the two countries: “Australia has British institutions. If Argentina had such strong institutions, she would be like Australia in ten or twenty years.”
In 1788, Captain Arthur Phillip not only brought people and provisions—he brought four institutions that we have adapted, institutions that are still with us today and which, with two others, have made this nation.
The first was the English language. We were extraordinarily fortunate that this was the language not only of Britain but also of its successor as the world’s dominant power, the United States. Only those who have lived for long in a foreign country will know the enormous advantage we enjoy because we speak what is without serious challenge to the language of the world.
The second institution Phillip brought was the rule of law. This means two things. First, everyone, including and especially the executive arm of government, is subject to the law. To understand how unique this proposition is, you really have to go back to at least the Magna Carta. The second aspect of the rule of law is that while citizens may do anything not prohibited by the law, the executive government may only do those things authorised by the law.
To describe the colony as a British gulag, as one senior Australian politician has, is completely erroneous. Phillip came with a Charter of Justice, which, unlike the Soviet Constitution, was actually applied. The very first civil case in Australia can be found in the law reports, Cable v Sinclair. The Court of Civil Jurisdiction sat in Sydney on July 1, 1788, to hear this case brought by two convicts, Henry and Susannah Cable (or Kable). How they met and what brought them together is a wonderfully romantic story, one which is a great tribute to Lord Sydney as the minister responsible for establishing the colony. The case was brought against Duncan Sinclair, who was the master of Alexander, one of the ships in the First Fleet. It concerned a valuable shipment which had been sent from England. Not only did the Judge Advocate hear the case, he found the convicts and made a substantial award in their favour. That is not what happens in a gulag.
There is another aspect of the rule of law which is important. This was about slavery. Both Phillip and Lord Sydney would have been well aware of a celebrated case in 1772 concerning a runaway slave from the American colonies, James Somersett. In a case brought by his owner, Lord Mansfield is said to have concluded his judgment with the words, “The air of England is too pure for a slave to breathe; let the black go free.”
Americans, especially in the South, were appalled by this decision, which freed 15,000 slaves and left slave owners who had gone to England with their slaves without any legal recourse. Worse, they feared the precedential value of this decision in the colonial courts. The slave owners soon saw the advantages of American independence, as did those who wished to seize lands reserved to the Indians under George III’s Great Proclamation. The mantra “No taxation without representation”, in protest at taxing the colonies to help pay for the long war defending them against the French, was not the only reason for the American revolt.
Phillip was determined that the American experience should not be repeated in the new land. Before leaving England, he wrote:
The laws of this country will, of course, be introduced in [New South Wales], and there is one that I would wish to take place from the moment His Majesty’s forces take possession of the country: That there can be no slavery in free land and consequently no slaves.
As Keith Windschuttle observed in 2007, “The idea that slavery was an affront to humanity that had no place in a free land was part of the original definition of what it meant to be an Australian.”
Although Arthur Phillip’s anti-slavery declaration was well-known to earlier generations of students, historians today rarely mention it. Schoolchildren are deprived of the pride in knowing that theirs is the only continent in the world that has never known slavery.
The third institution Philip brought was constitutional government. Although Phillip had considerable powers, the penal colony was only an interim measure. It proved to be extraordinarily successful, the world’s most successful experiment in criminal rehabilitation. Phillip was not a dictator—he was subject to the law and answerable for his actions. Phillip brought with him our oldest institution, the Crown. But this was not an absolute monarchy, which was by far the dominant model in Europe, where it illustrated the maxim that power corrupts and absolute power corrupts absolutely. The Crown operated under the separation of powers, which Montesquieu identified as uniquely English. Constitutional government, as Phillip knew it, was emerging as the Westminster system we know today. The king was subject to the laws, and the laws could only be changed by Parliament. It was becoming accepted that the executive government, the ministry, could only survive if it enjoyed the confidence of the House of Commons. Above all, and completely consistent with the English concept of the rule of law, people were free to do whatever was not prohibited by the law. Consequently, government, rather than being absolute, was limited to performing what was essential and in particular, defending the realm and maintaining the King’s Peace—that is, law and order.
The fourth institution which Philip brought to Australia was civil society. This consists of all of those institutions separate from government—above all, the family and the church—together with those values which are essential in a civilised society and without which neither constitutional government nor democracy can survive. The values Phillip brought can best be described as Judeo-Christian, and in particular, that version which produced the great campaign led by Wilberforce to end the institution of slavery. These values include truth, courage, love, and loving your neighbour as yourself. Even with the decline of organised religion, these Judeo-Christian values continue today to permeate our laws, our language, and our fundamental institutions. They are part of our broad Australian culture.
This does not mean Australia should not welcome those from other religions, nor does it mean that there is any obligation for an Australian to belong to any of these religions, or indeed any religion. This openness was stressed in the very first sermon preached in this land on Sunday, February 3, 1788, by the Rev. Richard Johnson. He began:
I do not address you as Churchmen or Dissenters, Roman Catholics or Protestants, as Jews or Gentiles … But I speak to you as mortals and yet immortal … The gospel … proposes a free and gracious pardon to the guilty, cleansing to the polluted, healing to the sick, happiness to the miserable and even life for the dead.
Over one century later, in the public consultations on the draft of our Constitution, more supporting petitions were received than for any other concerning a proposal that the preamble recognises what one delegate called the “invisible hand of providence”. This is reflected in the preamble of the Constitution Act, a provision which summarises, succinctly, the very pith and substance of our federation. This is that the people of each of the several states, “humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown … and under the Constitution hereby established”.
These institutions—the English language, the rule of law, constitutional government and civil society—Phillip brought to Australia, where they became the first four pillars of our nation. There were to be two more.
The fifth pillar of the nation was self-government under the Westminster system and within a surprisingly short period. The French, the Spanish and the Portuguese did not transmit the parliamentary concept to their colonies, as the British did to their American colonies long before independence and as they did to Australia.
Initially, the power of the colonial governor was restricted by the law and carried out under written instructions from London. This power was tempered by granting an increasing role to the people, culminating in legislation in 1850, which empowered the various colonies to draft their own constitutions, although they were still to be approved by the Colonial Office in London before being presented for the Queen’s Assent. The New South Wales and Victorian Constitutions received Royal Assent on July 16, 1855. These constitutions were not imposed by London. They were, as Professor Patrick Lane put it, “essentially home grown”.
To strike down another myth, the bills were approved in London well before the rebellion at Eureka Stockade. Whatever Eureka Stockade achieved, it was not self-government under the Westminster system.
The sixth great pillar of our nation was the Federation. This was never inevitable. We could have easily become several countries. In fact, when the British first suggested a federation, the local politicians were outraged. The assertion by former Prime Minister Paul Keating that it was imposed on Australia by the British Foreign Office is manifestly untrue. It was drafted in Australia by Australians and approved by the Australian people. When it happened, it was different from any other federation.
There were no deaths, no violence, no threats of war. Those great Founding Fathers Sir John Quick and Sir Robert Garran described this great achievement this way:
Never before have a group of self-governing, practically independent communities, without external pressure or foreign complications of any kind, deliberately chosen of their own free will to put aside their provincial jealousies and come together as one people from a simple intellectual and sentimental conviction of the folly of disunion and the advantages of nationhood.
The States of America, Switzerland, and Germany were drawn together under the shadow of war. Even the Canadian provinces were forced to unite by the neighbourhood of a great foreign power.
But the Australian Commonwealth, the fifth great Federation of the world, came into voluntary being through a deep conviction of national unity.
We may well be proud of the statesmen who constructed a Constitution which—whatever may be its faults and its shortcomings—has proved acceptable to a large majority of the people of five great communities scattered over a continent and proud of a people who, without the compulsion of war or the fear of conquest, have succeeded in agreeing upon the terms of a binding and indissoluble Social Compact.
These six pillars are the institutions which have made Australia an exceptional nation, both internally and in our role in the world. According to the International Human Development Index, our standards of health, wealth and education result in our being ranked the second nation in the world, very close to the first country, Norway. But with declining educational standards, not telling the young and the newly arrived about our heritage, and an inability to control increasing government debt, we are relying on the achievements of earlier times. How long will we stay near the top?
As to our role in the world, Australia has been involved in a remarkable way in defending the freedom and liberty of others. In the Second World War, we were one of a handful of countries that fought from the beginning to the end. As a percentage of the population, almost twice as many Australians gave their lives as Americans: 0.57 per cent to 0.32 per cent. In the First World War, more than ten times as many Australians gave their lives as Americans, 1.25 per cent to 0.11 per cent.
If we do not tell our young people about this heritage and how we have achieved it, they will not appreciate it. Worse, they may succumb to other theories, fashionable beliefs and new values which will in no way advance their welfare or that of the nation.
The mind is not a vacuum. In my view, man is programmed to believe. There is a warning about religious belief attributed to G.K. Chesterton along these lines: “When a man stops believing in God it is not that he believes in nothing. It’s that he will believe in anything.”
Putting aside religious belief, if we do not pass on to the next generation the facts about our heritage, what ideas, what propaganda will be pumped into their receptive minds?
I argued earlier that the failure in education is just one example of a broader problem concerning the quality of the governance of this country.
Unlike the situation that prevailed when I was young, university education is almost the sole responsibility of federal authorities, who now also preside over school, preschool, and vocational education. This entails a vast duplicate bureaucracy and massive financial resources, an increasing part of which is borrowed.
This is manifestly contrary to the carefully considered constitutional arrangements which the people approved and under which this country was formed. We should never forget that the federal Parliament is a parliament of limited powers set out in the Constitution. All powers not specifically granted by the Constitution to the Commonwealth are saved or reserved to the states under the Constitution.
There was a time when the people were regularly asked to give more powers to the federal Parliament. In fact, they have been asked to vote to transfer nine powers to the Commonwealth. Three of these votes have been given to the people on five occasions: monopolies, corporations, and industrial matters. All of these proposed transfers were rejected by the people.
It is an appalling fact that most of these referendums would not need to be repeated today. Through a re-interpretation of the Constitution by the High Court of Australia, they are no longer necessary. As a result, the Commonwealth enjoyed powers which the people denied it. The High Court has even said that in the interpretation of the Constitution, they cannot and will not be guided by a previous No vote in a referendum.
The late American judge Antonin Scalia was celeÂbrated for proceeding from the commonsense view that the Constitution means what reasonable people at the time believed that it meant. He held that it was not for judges to change this original intention. If there was a need for change, this should be achieved by a constitutional amendment voted by the people. He believed any other approach, for example, that the Constitution had to be adapted to current values or that it was a “living document”, effectively meant the judges were saying that the Constitution meant what they wanted it to mean.
So, most of the constitutional barriers to vastly increasing the role and function of the federal government have been removed without the people’s consent. In the meantime, the people are constantly told by the establishment that uniformity in almost every sphere of government is overwhelmingly desirable. This is linked to a second theme: Canberra can be trusted to choose the best system to administer any sphere of government, which must be made uniform. This is invariably achieved by appointing expensive consultants who produce a report supported by vast amounts of modelling, which inevitably concludes that there is one very expensive solution to whatever problems the consultants have discovered. This solution requires a vast new Canberra-based bureaucracy to administer it.
That, of course, is not how the federation is intended to work. It is contrary to the experience and wisdom of all those who have lived under successful federal systems. It is contrary to the proposition first established by the American founding fathers that a large country can only be successful as a free democracy if the government is devolved to the lowest possible level.
We federated on the basis that the new federal entity would have limited powers, with other powers being reserved to the states. The states were to be principally dependent on their own sources of income. They would be responsible to the people of their state for the spending of that income.
The federation would thus encourage competition between the states. People would then see when one state does something well, for example, with its hospitals or its roads, and another state does it badly. People would, for example, say, “I have been to South Australia and they do this so much better than in New South Wales.”
The much-maligned former Premier of Queensland, Sir Johannes Bjelke-Petersen, demonstrated this. In 1977, against the strong objections of his Treasurer, he abolished death duties, a move that cost his state $30 million in revenue. As a young articled clerk, I had seen what evil tax death duties were, imposing heavy and inequitable burdens on farming and small business families, precisely when they were in no position to respond adequately. The result of Queensland’s abolition of death duties was that vast numbers of Australians from other states, especially the elderly, moved to Queensland. They voted with their feet. Within months, every other state had abolished this tax, and even Canberra followed by abolishing estate duty. We have forgotten this example of how a federation can and should work.
For some time now, Canberra has been trying to take over, at a very high cost, areas of government for which it is manifestly unsuited. Education is an egregious example. The more the Commonwealth becomes involved in education, the more standards seem to decline. The founding fathers knew this. That is why education was neither an exclusive nor even a concurrent power to be exercised by the Commonwealth. Yet the Commonwealth has been able to get away with what is a breach of the Constitution.
The founding fathers were also no doubt aware that if the Commonwealth were to undertake tasks best left to the states, it would neglect and mismanage those tasks, which were the very reasons why we federated. Take, for example, the defence of the Commonwealth, including the protection and maintenance of our borders. The acquisition of the Collins-class submarine fleet and now its replacement represents one of the most appalling and continuing failures in government administration in our history. And remember, there is no more important role for the federal government than defence. (This means the government should be concerned about the true defence of the Commonwealth and not be distracted by such peripheral issues as the provision of advice on Islamic matters to the navy and gender fluidity in the armed forces.)
We see a similar problem at the state level. This is probably the result of the states being converted into clients of the Commonwealth and forced to exercise too many of their powers under the tutelage and direction of Canberra.
Probably the most important function of any state government is protecting us against crime. There was a time when the states were effective in exercising this power. But in 2005, in the Sir Ninian Stephen Lecture, New South Wales’s prominent Crown prosecutor Margaret Cunneen said something no one else at her level would say but something which in lay terms was being repeated over and over in the lounge rooms and in the pubs of the nation: “Perhaps it is time for us to consider whether public confidence in the courts is now being eroded by the perception that the pendulum has swung rather too far in the direction of the protection of the rights of the accused person.”
There is a continuing decline in the delivery of government in this country. The solution, I believe, lies in making politicians more accountable. In the United States, we see a magnificent example of democracy in action in choosing the candidates of each of the parties for election. This operates not only at the level of the President but at every level of government. The contrast in Australia is dramatic. With exceptions, it is hard to imagine a more closed system, one which ensures candidates are chosen not so much on their merits as on their allegiance to some faceless powerbroker. In return for the cornucopia of legal, financial, and branding privileges that the parties enjoy, they should at least be required by law to be open, transparent, and democratic.
We should be looking to other countries for ways in which we can make our democracy more accountable and more responsive to the wishes of the people.
It is time for a convention to be held to consider the reform of government in this country and to make recommendations to the people. After all, that was the only way we could have achieved federation. Such a move would not involve turning our backs on the federation or pulling it down but instead building upon it.
We should not only recall those wise words of the great Irish statesman Edmund Burke, but we should also apply them:
It is with infinite caution that any man ought to venture upon pulling down an edifice which has answered in any tolerable degree for ages the common purposes of society or on building it up again without having models and patterns of approved utility before his eyes.
Society is indeed a contract … It is a partnership between those who are living, those who are dead, and those who are to be born.
