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Home  >  Basic Charter  >  Notes on the Basic Charter

Notes on the Basic Charter

The Basic Charter as formulated there is not meant as a substitute for any already existing document such as a constitution. Rather, it serves as a kind of wrapper, an overarching set of principles under which any further delineations can, and should, find their home.

Australia already has that kind of entity, The Australian Constitution, a text which in terms of clarity and sufficient comprehensiveness (not too much, not too little) sets out the status of the governing bodies and their relation to the states within its 44 pages.

These notes deal with the format of such texts in general, as well as sociological/psychological aspects within the context of the ongoing attempts to change Australia's status from a constitutional monarchy to a republic.

A not insignificant aspect is the form such a document takes. Any law should ideally be expressed in terms that the average citizen (in other words, a person endowed with reasonable intelligence, literacy and numeracy) can make sense of it. After all, what point is there having a law, meant to be abided by, if hardly anyone understands what it says. There can be exceptions, for example the rules governing the construction of a nuclear reactor, which involve laws of physics going beyond the average educational level of most members of society; yet in that case we are talking about considerable detail, delineations which a more over-arching rule set simply does not entail; nor should it. One can say therefore, the wider the scope of a law, the greater its required simplicity.

One recent occasion where the above circumstances apply has been the case of Clive Palmer vs the State of Western Australia (and more specifically Palmer & Anor v The State of Western Australia & Anor [2020] HCATrans 180 (6 November 2020)). In summary, Mr Palmer took the State of WA to the High Court arguing that the recent introduction of cross-border restrictions as a response to the corona epidemic was unconstitutional. On the face of it, Mr Palmer seems to have a case. Consider the following sections of Australia's Constitution:

92. Trade within the Commonwealth to be free
On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free. But notwithstanding anything in this Constitution, goods imported before the imposition of uniform duties of customs into any State, or into any Colony which, whilst the goods remain therein, becomes a State, shall, on thence passing into another State within two years after the imposition of such duties, be liable to any duty chargeable on the importation of such goods into the Commonwealth, less any duty paid in respect of the goods on their importation. (p. 23)

102. Parliament may forbid preferences by State
The Parliament may by any law with respect to trade or commerce forbid, as to railways, any preference or discrimination by any State, or by any authority constituted under a State, if such preference or discrimination is undue and unreasonable, or unjust to any State; due regard being had to the financial responsibilities incurred by any State in connexion with the construction and maintenance of its railways. But no preference or discrimination shall, within the meaning of this section, be taken to be undue and unreasonable, or unjust to any State, unless so adjudged by the Inter-State Commission. (p. 25)

109. Inconsistency of laws
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. (p. 26)

117. Rights of residents in States
A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State. (p. 27)

All in all, rather self-explanatory. However, the Palmer case is further complicated by the plaintiff's previous action regarding an iron ore project in 2012 (one article of several: 'Time he cut his losses': Palmer's $28b shot at WA government fails in High Court, Hamish Hastie, The Sydney Morning Herald, 13 October 2021). Furthermore, there is the Western Australian Government's introduction of the Emergency Management Act 2005 (dated way before the corona virus arrived on the scene, it should be noted) that clearly sets out a set of circumstances which overrule anything the Constitution has to say about general rights and privileges. In fact, the High Court's decision refers to sections 56 and 67 of that Act juxtaposing them to section 92 of the Constitution (see above) when declaring Mr Palmer's action invalid.

In the absence of such complications one could argue that the 44 pages of Australia's Constitution are so straightforward, they don't need judges of the High Court to interpret them for the 'masses'. Indeed it would be a case of undermining a constitution if a group of people of considerable rank, status, and influence, and above all, unelected by the general population, have the power to re-interpret the text in such a manner that the result has now acquired a different meaning to the original. And, on that basis, evoke a situation where the average citizen is faced with a quandary, possibly resulting in jail.

Yet complication can and do emerge, as this case shows. As a consequence, a comprehensive understanding of what should be plain text now requires the input of - in this case - legal experts in order to make sense of it all. So much so that the final result represents a reversal of what sections 92, 102, 109 and 117 set out to make clear.

It should be noteworthy that the High Court's decision, while explicitly referring to section 92, does not mention the other three. Nor does it mention another:

101. Inter-State Commission
There shall be an Inter-State Commission, with such powers of adjudication and administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder. (p. 24)

In other words, a body that is designed to act as a brake to any initiative that has the potential to unseat in some way or form the juridical relationship between the Commonwealth and the States. Would not the arrival of someone, bringing with them circumstances that compromise the otherwise smooth interaction between national and state interests, necessitate the invocation of something like an Inter-State Commission? Here we have on one hand the unequivocal declaration of the rights to trade, commerce and intercourse (declared to be absolutely free - my italics), yet note the relative ease with which they have been circumvented. To be sure, the intermittent declarations were not of the whimsical, purely authoritarian kind so beloved by dictators, but the steps were only a few and highly impactful nonetheless.

Cognitively speaking we can say that a law, a concept, should have an openendedness such that any further subsection, some detail, cannot have elements which contravene the previous whole. If they do, the overarching law has become invalid as a concept because there is now a contradiction. So, either redesign the overall rule in order to restrict its scope (and thereby remove the subsections' status as subsections), or change the subsections bringing them in sync with the overall rule.

As the above mentioned case with the WA Emergency Management Act has shown, in cognitive terms that Act is an insertion into an existing framework which necessitated a complicated revisit of what already had been said and what is now held to be the real meaning of it. All of which make the law more obtuse and certainly more costly in practical terms (I should mention that I am neither a resident of Western Australia nor do I have any associations with Clive Palmer's operations; I am merely observing their respective situatedness).

As abstract and esoteric as the foregoing my seem, the cognitive dynamics evoked do represent very real contingencies and, recognised or not, establish a general framework within which people act and operate. At that point their practical nature makes a considerable difference in our lives. (There is a parallel in computer programming: inserting a new section somewhere in the application's flow chart needs to be done very carefully, lest it interferes with anything from the insertion point onwards)

Which brings us to the psychological aspects behind the endeavours to make Australia a republic.

The two drivers are the framework of a constitutional monarchy, steeped in tradition and held to be incompatible with a modern society; hereditary privileges are not in line with democratic principles and vice versa even if a parliament is involved. In addition the monarch is the head of a nation half-way around the world and any influence is based on a previous relationship where Britain is the leader and Australia a mere colony and not an independent nation in its own right.

Over the decades the sheer need to recognise the reality of the situation has led to a watering down of the erstwhile framework, something not unknown under circumstances where the initial rigidity makes way for a mellowed version because the practical conditions of the day make the original simply unworkable. The often cited comparison with a family is not unreasonable: once the children have grown up and left the house, what is the point of the parent announcing whatever decision if there is no way the adult offspring is going to follow it. The parent will only look ridiculous.

In the larger political sense this is what happened in Australia. Although being officially the head of state the current monarch has no role in the decisions made here and only gives her consent afterwards (nor is she expected to do more than that).

Note however that most of the current situation has developed over a period of time when no crucial decisions had to be made; crucial as in going to war, or to enter into some bi-lateral relationship with immediate problematic consequences for any other relationship Australia might have. It wasn't always so. Australia's entry into the First and Second World War had first and foremost been prompted by the nation's leash that tied it to its master. Other political and military reasons entered as well of course, and it would be an interesting exercise to speculate (and that's all we can ever do now) what would have happened had Australia's status in relation to Britain been one of France's for example.

In any case, since the question of a republic is a matter of personal attitudes and perceptions, it is justified asking what specific circumstances guided the process in so many individuals for them to desire a significant change in our nation's status. Or, for that matter, to want to remain within the political folds.

Let's consider a small-scale analogy. Say there is a school with its classrooms and the headmaster's office all in the same building. Suppose further that school has a branch in another suburb, also with classrooms but no head office. Whatever the headmaster's inclination to exercise their power, where would that power be more on display, in the main building or in the branch? The answer is obvious; it is in the main building where the immediate presence of power will be felt, where at any moment the stern eye of the authority figure can spot a delinquency and there is no escape. Regardless of official proclamations, the practical side of such an arrangement will always ensure a greater degree of freedom when the seat of power is somewhere else.

Choosing young people in our analogy was done for a reason. Historically speaking Australia is a young nation, and just as individuals acquire experience as life progresses, so do nations accumulate knowledge presented through the unfolding of history. It is understandable then for the country to cut its ties, to finally be the 'adult'. Yet maturity is not a one-off event which arrives on one's 18th birthday, it is a process that keeps moulding the person for years to come. Teenagers want to be independent and get away, and good on them. In years to come however maturity also means being able to look back and not be unnerved by the fact that one had been a child; mature adults don't need a superficial diary, their awareness of being an adult is on solid ground. That would be one reason why countries such as the Netherlands, or Sweden, or Spain are not too fussed about still being a constitutional monarchy. On the other hand, their monarch resides on home soil.

How would the contemporary scenario regarding the Covid pandemic with its restrictions have gone through its stages if Australia had been a republic? The role of the monarch standing behind the Constitution would not have been dealt with in absentia and the Constitution seen as some kind of proxy, but a president would have been right here. Would a High Court have been called upon to explain what our basic law actually means, or would the president step in and exercise the authority? Of course, as it stands all this is pure speculation, but once a republic many such situations are going to be played out in real life.

Going back to our analogy, if someone would ask the pupils where they rather be, in the main building or the branch, what would - what could - be thought of a child who says, "Oh yes, I would much rather have the headmaster around to check on every step I take", or "No, I want our headmaster to be as far away as possible". We know the 'proper' way of thinking, all in line with what we are supposed to say. But deep down, how would we really perceive a child who prefers the authority figure to be right next to them? (The results of helicopter-style parenting notwithstanding)

It is interesting to compare the statements by the advocates of a republic when it comes to matters of independence. On one hand the meaning of independence is held to be synonymous with freedom, but no thought seems to be given as to whether the existence of a president will truly mean freedom in so many ways. Perhaps the desire for freedom is the real origin of their thoughts, but it is also possible that the preference of a president represents the subconscious desire to have an office with greater control leaning over them. After all, entire demographics willingly subordinating themselves to some rule are not unheard of.

A republic as such is not a recipe for disaster; there are many very successful republics. Australia's case is not the norm however. It is a young nation, maturity is not - yet - assured, and at the moment we are independent in a practical sense but tied to an anachronistic symbolism. Becoming a republic will be an experiment, a worthwhile one but still an experiment.

PS: Another aspect still not taken seriously is the sheer suitability for office (see Over ten years of otoom.netPS: at the bottom of the page). It seems absurd that considerable qualifications are demanded and tested for in job applicants even if the responsibilities are relatively minor, while at the same time someone standing for an office that has a direct impact upon millions of people now and in the future is selected on the basis of what is essentially a form of perception.

October 2021

© Martin Wurzinger - see Terms of Use