Flat White

Burkas and broken oaths: complete the constitution

24 August 2017

7:20 AM

24 August 2017

7:20 AM

My blood ran cold. A woman – I assume she was a woman – came towards me in a burka or, as I could see her eyes, a niquab, a rare site on a university campus but not uncommon in some parts of Sydney. Walking through a park at Botany Bay on a hot day not so long ago, I saw men in shorts, T-shirts and swimming costumes, their women wrapped from head to foot. This seems so unfair.

We’re told women do this without compulsion. So why did women so energetically stomp on their burkas when they were liberated from the ISIS monsters? Until Jimmy Carter pulled the rug out from under the Shah, Iranian women weren’t forced to wear the grotesque medieval chador and gays weren’t thrown off buildings.

The extraordinary thing was not so much Pauline Hanson in a burka. It was the hysterical defence, in the Senate and mainstream media, of this truly appalling and offensive symbol of female oppression. And she had made a fair point about security. Just as the banks insist, face coverings should never be allowed to compromise security.

Nor can Pauline Hanson be criticised for lowering the dignity of Parliament; this was achieved long ago. Question Time has descended into a shameful caricature. The claim that questions from government backbenchers are without notice is a downright lie. In contrast to the Speaker at Westminster, ours has absolutely no discretion – the whips tell him who to call and the MPs the questions they must ask.

On top of this disgraceful parody, too many Federal politicians have demonstrated a failure to accord a decent respect for our fundamental law, the Constitution. The example du jour concerns politicians who may have wrongly declared that ”by virtue of section 44 of the Constitution” they are not ”incapable of being chosen or of sitting ” as a law maker.

From the specific terms of the section, actually printed on the declaration, and with the most basic knowledge of political affairs in Australia, they would have surely known that if they were born overseas, or one of their parents were foreign, they could be foreign citizens and that they must make reasonable efforts to renounce this prior to nomination.


They should also have surely known that in 1999, the High Court ruled that citizens of the other 15 commonwealth realms are caught by the section. This logically follows from the independence of Australia at some indeterminate date and the consequential separation of the Australian Crown from the former indivisible British Crown. What remains is a personal union under international law as existed between Hanover and Britain from 1714 to 1857 and exists today between France and Andorra.

Those aspiring to be a legislator surely have an obligation to ensure their declaration is correct. Of those in the current roundup, only Senator Roberts has indicated that evidence will be called to demonstrate he had made reasonable efforts to renounce his British citizenship.

Far worse than this emerged in 1999, when more than two thirds of sitting politicians supported a republican model so grotesquely flawed it was condemned by a number of constitutional experts, many republican. It was proposed not to improve the governance of the nation but to remove one of its core institutions, indeed, the oldest – the Crown. What was shocking was that these politicians were prepared to violate their oath of allegiance.

Malcolm Turnbull and Bill Shorten are serial swearers of the oath, between them at least nine times. Despite that, both are paid-up members – if politicians pay for anything – of what sounds like a cold war fellow travellers’ front, the ”Parliamentary Friendship Group for an Australian Head of State”. Not only does this involve them violating their several oaths of allegiance, this shadowy “Friendship Group” is based on the lie that we do not have an Australian as head of state. This is contrary to what every government in which they have served has held out to other countries and international organisations – that the governor-general is the head of state.

To those who think this is mere point scoring, consider this. Do these politicians treat other oaths the same way? For example, the oath that they must make when giving evidence to tell the truth, the whole truth and nothing but the truth, adding, with their hand on the Bible, “so help me God”? If politicians are prepared to deny the oath of allegiance they make so regularly, how could we ever possibly trust them to tell the truth, even when they are on oath?

There are calls now for section 44 to be amended or to be removed, while Turnbull and Shorten have agreed on the desirability of an amendment to provide that they should face the people less often notwithstanding that this will grant senators eight-year terms.

Instead of the politicians selectively choosing referendums to make their lives more comfortable, what is desperately needed is an elected constitutional convention to improve the governance of Australia and to make the politicians and the judges truly accountable to the people. At Federation, South Australia’s premier Charles Kingston was talked out of proposing what is normal in Switzerland – direct democracy with citizen initiated referendums. Alfred Deakin persuaded him that responsible government would make the politicians accountable, but he wasn’t to know that both parties would be captured by assorted powerbrokers in the same way that a monopolist or oligopolists can capture a competitive market.

That is why we are in a mess created entirely by the politicians, the worst example of which being the energy policy of both sides. Do the LINOS and Labor really want to turn our energy rich country into the Venezuela of the South Seas? All of this would have been avoided if the common sense of the rank and file had prevailed.

It’s time to finish what the founders began with the radical provision requiring referendums for constitutional change. Let’s complete our Constitution.

David Flint is an emeritus professor of law.

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