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Section 44: submission regarding proposed amendment of the Commonwealth Constitution

 

Today I lodged a submission into the Commonwealth Parliament’s Joint Standing Committee on Electoral Matters Inquiry into matters relating to Section 44 of the Constitution. Here’s what I submitted:

I write regarding the following Terms of Reference for the Committee’s inquiry:

C. Whether the Parliament should seek to amend section 44(i) (for example, to provide that an Australian citizen born in Australia is not disqualified by reason of a foreign citizenship by descent unless they have acknowledged, accepted or acquiesced in it);

D. Whether any action of the kind contemplated above should be taken in relation to any of the other paragraphs of section 44 of the Constitution, in particular sections 44(iv) and 44(v);

It is my strong view that for the Parliament to seek to amend the Constitution as contemplated in these Terms, absent any other proposed amendments, would constitute a self-serving exercise by Australia’s political elite.

The Australian Constitution, venerable as many hold it to be, contains significant flaws in need of correction.

I reject the pragmatism of incremental change. Two of the last three amendments to be passed, in 1977, were concerned with, in effect, amending the terms of employment of those exercising power on behalf of Australians, namely Senators and judges. The third expanded the franchise to citizens in Territories.

Australians have not been asked to contemplate any significant change to our system of government in decades, if at all since Federation. ‘Minimalist’ republicanism simply does not rate as ‘significant’. Indeed, the 1999 referendum is a study in the failure of adherents to the incremental change mantra.

We need a Constitution that establishes an Australian state free from legal shackles to its imperial heritage: our Constitution should be an act of its free peoples, not an Act of the Parliament of the United Kingdom. Our Head of State should be one of us, and the position held by that person ought to be what we acknowledge as we pay respect to the law on entry to a courtroom.

Our Constitution must include a Bill of Rights, because we have seen in the Northern Territory Intervention and the suspension of rights under the Racial Discrimination Act 1975 what happens when rights are merely legislated.

Our Constitution must pay due respect and regard to the original legal systems that applied in Australasia, the systems of its First Peoples.

It is in the context of these significant opportunities for constitutional reform that our leaders ought to contemplate a re-ordering of government in our country to deliver a 21st century approach to health and education responsibilities, so that we no longer suffer through buck-passing and waste.

We ought to ask ourselves whether the majoritarian cartel that is a consequence of our current representative system, founded in the Constitution, is delivering the quality of governance we deserve. Perhaps the growing disjunction between Government and Opposition and the electorate at large is a product of the fundamentally flawed pretence that mass parties can adequately present unified perspectives to electors all-too-aware of their internal divisions.

In short, Australians should have a thorough discussion about a new Constitution.

Not because its entirely broken (although parts of it certainly are), but because we should aspire to higher ideals of democratic representation rather than settle for the status quo just because it’s easier.

If amending section 44 forms part of a more comprehensive package of constitutional reforms, all well and good.

But presenting such an amendment, which only serves those who contemplate a political career, while failing to present any amendments that would deliver meaningful, positive change in the lives of many Australians is self-interest in leadership’s clothing.

Democracy in a state like Australia


(Well, France’s democracy is a bit like Australia’s, isn’t it?)

Because I’m me and I live in Australia, which some have touted as one of the world’s most stable democracies, when I consider the form the state should take I tend towards a democratic state. Maybe if I’d ever experienced a benevolent autocracy I’d have a different opinion, but I haven’t so I don’t.

‘Democracy’ is contested ground, though, and we need to be sure what it is we mean when we use it. Returning to some fundamentals is essential if we are to conceptualise the ideal towards which we should be heading. Surely no one suggests that the form of democracy we endure in Australia today is that ideal form. To assert the contrary is would mean that Indigenous incarceration rates are a bi-product of our ideal democracy, for example, or that Australia’s position on carbon pollution pricing is an ideally democratic outcome.

Let’s adopt a pretty basic approach as our starting point: democracy in 21st century states manifests as the right to have an indirect role in determining the laws that govern those states by exercising decision making power about whether to vote and, if so, who to vote for.

If exercising this right results in an attempt to vote (regardless of the validity of the attempt), this decision at the very least implies acquiescence to the laws that result from any government elected. Our votes legitimise the electoral process and are evidence of our endorsement of the manner of state apparatus we employ and those we elect to operate that apparatus.

This is as close as we actually get to an active representation of the social contract. It is, though, an active demonstration of acquiescence to the chimera that we voluntarily agree to receive the benefits of a state so long as we accept certain obligations as a result.

This act of individual decision making power is enough for those inclined to do so to extend the language of democratic rights to democratic duties.

The argument goes that if, for example, the rule of law is a defining principle of our democracy, and the right to trial by jury a defining principle of our criminal legal system, then it is reasonable to extend the proposition of jury duty as a democratic duty. By exercising our basic democratic right to vote in an election we, at the very least, impliedly endorse the imposition of this duty, regardless of whether an individual compelled to so serve themselves endorses those principles or the laws that result from the state that governs them.

Furthermore, we are compelled to observe the civic duties imposed upon all of us equally regardless of our relative privilege to affect the laws to which we each are subject or indeed to even know the extent of those laws.

You may be privileged enough to enjoy more than the indirect role of lodging your vote, but at its most fundamental this is the only decision making power that our states guarantee us as citizens. We each have differing levels of capacity to involve ourselves more deeply in some level of democratic decision-making, and we do not each have the same privilege that permits us to influence or decide at the highest levels.

There are many who would argue that we do a great deal to empower citizens and increase participation in deliberative processes, community consultations and the like, and that’s entirely true. This notion of ‘participatory democracy’ is one where we all get to participate in influencing decisions and it sounds great, and it is great, but it is still an exercise in relative privilege.

The circumstances into which we are born can be enough to make the difference.

The manner in which we have obtained the knowledge we claim is itself open to dispute and those disputes offer those inclined to do so another opportunity to exclude. What constitutes ‘life experience’ can be the subject of an argument itself, let alone the relative merits of any ‘life experience’ against ‘book learning’ (which again, is of contestable value such as the relative value of a degree from one university over another).

The labour we must dedicate to alleviating crippling net debt to income ratios may be a significant constraint on how willing or able we are to participate in community forums on the future of the local shopping precinct, let alone provide a written submission to a Senate inquiry.

The Director General or Secretary of a government department has multiple opportunities every day to influence or direct the decision making authority of the state. An eighteen year-old former ward of the state recently released from juvenile detention has no such opportunity.

But our democracy, built on our equal votes, is not founded on recognition of our varying circumstances (other than our citizenship) and does not demand of us ‘participation’ beyond our vote.

Those who govern impose laws and use the lawful violence of the state, or the mere threat of such violence, to compel compliance. In 21st century democracies the legitimacy of the state the apparatus of which is effectively operated by far less than 0.1% of its population on any given day is derived from nothing more than our attendance at a ballot box and the tallying of numbers.

Fifty per cent plus one is the magic formula, and it’s a formula in which every individual unit is assumed equal by virtue of their status as an individual human. In almost every other aspect of our society we see that individuals are not equal, and yet when it comes to determining who it is that will create laws to which we are all subject suddenly equality is assumed.

I would hope that whatever our ideal of ‘democracy’ is, it’s more than this. Surely our obligation to ensure that the least privileged in our society are not unfairly discriminated against as a result of democratic decision-making demands more than that we ‘consult’ with them before we pass laws to their detriment.

Perhaps the notion of democracy demands more of our society than this simplistic, immature numbers game. If we recognise that some interests are more privileged than others, more capable of influencing decision making, perhaps this ought to be recognised in the calculation of our votes. Perhaps the votes of those whose capacity to influence is significantly less than others ought to be given more weight, a form of ‘horizontal electoral equalization’ based on privilege.

If a democracy is to avoid entrenching disadvantage on an intergenerational basis, surely it must recognise relative privilege in the essential, for many only, decision-making process that defines it as a democracy. Yet our system does quite the opposite. It is designed to favour some interests over others, and deliver disproportionate benefits to those favoured few. It is an imperfect democracy with little evidence at hand to suggest any significant movement towards a more ideal form.

Anarchy is Love, or, Why I’m not an Anarchist, Part One

I have thought for a very long time that anarchy has been unjustifiably derided.

It is used as a pejorative too easily, synonymous with chaos.

A ‘descent into anarchy’ seems so akin to a descent into Hell, doesn’t it? It must be evil.

Yet at its heart, anarchy is love.

Anarchy is, after all, an absence of hierarchy and an acknowledgement of mutuality of power.

It is a rejection of exploitation by one of another.

For anarchy to thrive we must each see one another as equals, as deserving of our needs and of peace.

Anarchy requires that every individual is able to consider their own needs and the needs of everyone else and choose that course of action that respects all needs.

Who could argue with that?

Here’s the but…

But perhaps anarchy merely has the potential of love, and is truly more likely to result in violence.

‘Anarchy as love’ falls down whenever an individual is incapable of or simply chooses not to respect the needs of others and reverts to violence to claim for themselves disproportionate and selfish use of one thing or another. Such expropriation is exploitative and anti-anarchist.

Anarchism also, then, provides that each individual is entitled to exercise their own violence to prevent such expropriation.

It also provides that to claim an anarchist future (some say reclaim, but I’m not convinced anarchy ever truly existed) it is appropriate to use violent means to overthrow capitalist patriarchy (I’m not sure if that’s a tautology but will take my chances).

If, for anarchists, might does not necessarily make right, nor is it necessarily wrong.

I’m a pacifist (though one prone to fits of anger from time to time which manifest as some swearing and shouting which I always regret. Also an extremely problematic attitude to what should be done about things like genocide).

So, for me, violent overthrow of patriarchy isn’t an option.

And I’ll always be prone, won’t I, to anyone who wants to gratify themselves violently or is prepared to take my stuff by force. And I’m a 180cm bloke in full command of my muscles. I’m sure you don’t need to imagine the circumstances of someone with different physical attributes similarly disinclined to violence. Or simply incapable of it.

Who do I licence to protect me (and is such a licence even OK)?

I’d rather I wasn’t assaulted or my stuff nicked, so maybe I need to be protected. As soon as I admit to this need I empower the person whose role it is to provide my protection. I am indebted to them, and must pay a price.

So long as that person doesn’t exploit their relative power to my detriment, perhaps anarchy can persist (although leaving us with the problematic position of the pacifist apparently licencing violence by another).

Far more likely, though, is that violence between those agents will progressively escalate and formalise. That’s what history shows us, anyway, and perhaps it’s OK to take past behaviour as indicative of future behaviour in this regard.

If we’re going to have people who are authorised to exercise violence on behalf of those who don’t want to or can’t then they ought to be constrained from doing so arbitrarily and to their own advantage in an exploitative way. There ought to be rules we agree to apply to those who accept the responsibility to exercise violence on our behalf.

In short, out propensity to violence means that we need a state in recognition of the fact that we simply do not all share equal capacity for violence, even if we all had the will, and the controlling minds of that state must be accountable for their decisions.

That’s not anarchy.

So is there a place for anarchist thought in a statist society?

I do believe, though, that we should be considering public policy from, in part, an anarchist perspective.

My expectation, my demand, is that the entity to which I contract my right to violence does not abuse that contract by exercising violence to entrench or deepen exploitation and disadvantage.

Our society is improved every time we find a way to peacefully and kindly resolve differences using our individual agency. Talking to our neighbour about their noise and agreeing to a compromise on how it may be reduced is superior to calling their landlord or the police. It is more respectful and loving. Collectively and voluntarily providing a safe space to meet the needs of children is superior to locking them up.

The state isn’t going anywhere in a hurry, if at all. But its controlling minds can, in considering how to respond to any particular public policy question, look to how they can best empower individuals and communities to agree to solutions rather than impose measures upon them.

Public servants already, in proposing particular policies or programs, report on the consequences of their proposal by way of ‘impact’ reports. They consider, for example, the impact on families, on small business.

I say let’s have ‘Anarchy Impact Statements’, where a proponent must reflect on how a particular proposal either dismantles or entrenches hierarchies that rely on violence to sustain exploitative relationships. In particular, proponents should be required to defend measures that defends or advances exploitation that relies on recourse to the ‘lawful’ violence of the state without which those who suffer from such exploitation would resist it.

If the state is going to continue to be used to protect expropriation and entrenched disadvantage, its controlling minds ought to be required to at least acknowledge that they are doing so every time they act.

Acknowledgements and presumption

It has taken a great deal of thoughtful time before I feel comfortable to write again, and it’s a necessary precursor to writing that I acknowledge a few preliminaries.

I have seen some commentary on the question of ‘vanity blogging’. The suggestion is that in order for writing to be valuable it must first pass some independent reviewer’s eyes. All else is vanity publishing, a self-declarative and egotistical exercise in gratification lacking in merit or rigour.

So be it: I presume for myself the vanity of choosing the terms on which I will supplicate myself to such socially ordained discipline and the freedom not to do so (including using flowery language and idiosyncratic grammar if I feel like it even if the SEO plugin tells me my ‘readability’ needs improvement). Here are my thoughts censored only by my anxieties and doubts, though these are possibly not as strong or controlling as they ought to be. Perhaps these thoughts may be reproduced elsewhere, edited, truncated or redacted, but for now they will be as you find them, should you care to look.

I acknowledge the privileges I enjoy living in a not-yet post-colonial society that permit me the opportunity to vainly – perhaps in every sense – scratch away. I am not wealthy by the standards of early 21st century Australian capitalism, but nor am I poor. I am lacking the expertise of specialization as well as the drive to attain the title of ‘expert’. I am, perhaps, too much of a dilettante to ever sustain a serious or deep contribution to any particular field of endeavour.

Nonetheless I have had one person suggest that my white, male, heteronormative views on one thing or another might be worth conveying and so (to borrow from that ‘jingo imperialist’ Kipling), Best Beloved, here are some thoughts for you.

Fixing what ain’t broke: the inherent good of reform

For a while I’d been trying to convince myself that I could write about constitutional reform in a general sense and move on to specific arguments later. But then Tony Abbott reminded me of the time that the phrase ‘If it ain’t broke, don’t fix it’ really started to get my goat.

You see, this is a nonsense axiom.

The notion that humans should only fix what is broken stands in the face of some of the most wonderful of inventive leaps our species has made. I’ll illustrate with what seem to me to be a couple of stand out examples.

What was it about the way homo sapiens lived that was ‘broken’ and which led to the invention of the wheel? Sure, it’s easy in hindsight to say that the wheel clearly made life better, but that’s not the point in this argument. Making life easier, or better, isn’t the criteria, it’s fixing something that’s broken.

Was candle-power a ‘broken’ way of providing light? In order to really come to terms with this we have to try and conceive of how people felt about those prior ways of life in which only a handful of people conceived of the possibility of change. Did our great-grandparents think that the horse and carriage was a ‘broken’ mode of transport?

What about how humanity conducted its affairs was ‘broken’ that was later ‘fixed’ by space flight?

We’re often told that some of the great inventive leaps have resulted from defence industries, which leads to the question – particularly since World War Two – what was ‘broken’ about the way we kill each other? What’s broken about that now? Isn’t it the case that defence industries are still working at better ways to kill people?

Tony Abbott forms part of this argument because he used the axiom to devastating effect in the constitutional reform debates of the 1990s. It was one of those clichéd phrases which form part of his apparently superhuman power to ‘cut through’.

The problem (or at least one of a few problems) faced by the republicans at that time was that they denied themselves the obvious and critical repost: the Australian Constitution is broken. They could have made the argument, implicit from the above examples, that we as a species don’t and have never only fixed things that were broken. We’ve sought to improve our lives for the sake of the improvement. We’ve made inventive and creative leaps because we can, not just because we must.

But republicans didn’t even get that argument going particularly well, and in any case it’s a little hard to see how the minimalist approach could be perceived as reform that would ‘improve’ our lives in any meaningful way.

Even worse, by pursuing a minimalist agenda which merely changed the names on the letterhead and redirected the mail, the Australian Republican Movement gave us no reason to change. Constitutions are, after all, pretty important things. Symbolism doesn’t really get us there in terms of a need for change.

The glaring, slap you in the face and steal your lunch money problems which come with a nineteenth century constitutional model that was out of date 50 years ago are real and have daily repercussions.

Like the complete absence of the language of rights.

Or the… messed up division of responsibilities between the Commonwealth and State governments.

Health reform, anyone?

Political radicalism in Australia is so hamstrung by some weird combination of a belief in incremental change and an inability to forcefully argue the need for radical change that we’re left in a limbo land where it’s apparently OK to concede that a constitutional bill of rights is unlikely to be successful at a referendum and to, from there, rationalize that we don’t really want constitutional rights anyway.

As if in forcing the Northern Territory Intervention on Aboriginal communities the Commonwealth government’s suspension of legislative rights flowing from the Racial Discrimination Act didn’t actually happen. Wasn’t it a good thing that the Commonwealth stepped in to ‘fix’ that?

But I guess the existence of those rights, and the ability of people to rely on them to ensure that they were not subject to discrimination, must have been at the heart of what was ‘broken’ about the broken lives of Aboriginal people in the Northern Territory.

Good thing our parliamentarians are able to tell us what’s broken about our houses, even if they refuse to do anything to fix their own.

Private surveillance

In the light of suggestions that Japanese whalers have, through a third party, hired aircraft to conduct surveillance on anti-whaling group Sea Shephed, the ABC reports that Deputy Prime Minister Julia Gillard is seeking legal advice on the issue.

Professor Don Rothwell has already said, though, that there seems little recourse under existing law to stop Australian airspace from being used in this way.

Now, maybe some people would prefer that such activities not be conducted, and see something sinister at play. They may be right.

But, then, a broader question arises concerning private surveillance generally.

The issue appears to be whether or not a private person, in this case in the form of a corporation or other entity, should be able to use private resources to undertake surveillance of persons they feel may act contrary to their interests. In this case, such surveillance probably wasn’t as covert as it sometimes can be: it’s pretty hard to see how civil aircraft circling the Southern Ocean could be effectively concealed.

If we’re really worried about such private covert surveillance, though, surely such concern should extend to a whole range of ways in which private persons engage investigators to covertly monitor the activities of their competitors, their former spouses, and for any number of other reasons. If we’re going to draw a line on such activity, where should it lie?

WA Labor’s new strident approach on stop and search powers

 

In an earlier post I criticized the law and order trend of successive Western Australian State governments and Local Government Authorities to ever harsher policing powers, from the expanding surveillance of citizens to the proposed police powers to stop and search any Western Australian who seeks to enter certain events or public spaces. That post was subsequently republished on Larvatus Prodeo, with an ensuing engaging discussion by visitors to that site.

One of the comments was a pointed observation that I had omitted any reference to the Labor Party. Indeed, I replied, it didn’t mention any specific parties.

The fact is that I haven’t always been impressed with the approach of the Labor Party on ‘law and order’ issues. The initial statement by Eric Ripper that Labor had sought to introduce similar measures, I’ll concede, was one I found less than inspiring.

However two recent excursions by Shadow Ministers into the field have given me fresh hope.

A story in the West Australian on the 28th of October covered comments by Shadow Minister for Police Margaret Quirk:

Shadow police minister Margaret Quirk called on the Government to address causes of crime rather than continually resorting to harsher penalties. The Government recently announced a range of measures to curb alcohol- related violence in Northbridge.

“I think the focus is very much going hard on the offenders, and while that is legitimate the overall focus should be on there being fewer victims,” Ms Quirk said. “You need a much more complex approach to law and order.”

She said cutting money from the office of crime prevention and a reduced focus on education campaigns hindered the battle against increasingly violent attacks.

“It’s no consolation for a victim to have the Attorney-General and the Minister for Police waving their finger at the offenders after the event,” she said.

This line of argument is, while cast within the continuing frame of a law and order debate, at least getting closer to some of the concerns raised in the discussion on Larvatus Prodeo about root causes. I hope to write some more about that at a later date.

It has been followed up by recent comments by Shadow Attorney General John Quigley regarding the proposed stop and search powers (with thanks to the Western Patriot – hard to get access to the Perth Voice over here):

Mr Quigley told The Perth Voice that the new powers are, “extreme laws giving unheralded powers to the commissioner of police, the likes of which you would only see in a fascist or totalitarian regime.”

Combined with mandatory terms of imprisonment for assaulting police officers, these new laws significantly erode the rights of individuals against the State.

Mr Quigley told The Perth Voice that the State Government could “get away with [it] by…inducing the people of Perth to believe they are living in the most dangerous city in the country, or the western world, and it is just not true.”

This is a distinct and welcome shift in approach from the previous statements by the Opposition Leader. Although the rhetoric might be a bit stronger than I’d use, it represents a strength of resolve on the issue that we should embrace.