The Australian Federation was created under “the Crown of the United Kingdom of Great Britain and Ireland,” as stated in the preamble to the Commonwealth of Australia Constitution Act 1900 (UK).
The word Crown originally meant the monarch in their official governing capacity. In the nations retaining a monarchical figurehead, the term is now commonly used in an extended sense as being synonymous with the State. The Crown is, therefore, the State in all its aspects within the jurisprudence of the governmental realms and their subdivisions.
History books remind us of that momentous episode in the early 17th century when Sir Edward Coke angered a monarch for reminding him that even the king “ought to be under God and the law.”
“Those words of Coke, ‘The King is under no man, save under God and the law,’ epitomise in one sentence the great contribution made by the common lawyers to the Constitution of England ... If we forget these principles, where shall we finish? You have only to look at the totalitarian systems of government to see what happens. Society is primary, not the person. The citizen exists for the State, not the State for the citizen.”
The idea of a monarch’s absolute power received its fatal blow when Parliament went to war with Charles I, King James’s second son. From 1629 to 1640, he managed to rule without having a Parliament.
During that time, he attempted to impose Anglicanism in Scotland, and a war broke out, which forced him to summon first the short Parliament (1640), and then the long Parliament (1640-60).
Then, when Charles tried to impeach five members of the Commons at the House of Lords, the former vigorously defended its members, and the King ordered their arrest. From this date (1642), the civil war became inevitable.
The forces of Parliament prevailed during the war, and Charles was arrested. The execution of a king was controversial at the extreme. The forces of Parliament were aware of the uncertain territory this action would lead them to take.
Despite knowing this, in 1649, a revolutionary tribunal tried and executed the king, the monarchy was abolished, and the nation, for its first and only time, became a republic.
Development of Modern Constitutionalism
According to the late German philosopher Karl Loewenstein, the demand for a codified body of fundamental law or written constitution arose primarily with the Puritan Revolution in the 1640s, as a way to prevent Parliament from exercising absolute power.The work of the 17th-century philosopher John Locke played an enormously important role in the development of modern constitutionalism. His main concern was the elaboration of a political philosophy to underpin the 1688 Glorious Revolution.
In the constitutional struggle of parliamentary forces against the Stuart monarchs, Locke elaborated a contractual theory in which the primary justification for any government rests on the legal protection of our inalienable rights to life, liberty, and property.
This was also reflected in the United States Declaration of Independence, especially in its appeal to inalienable rights and the lawful right to resist all forms of political tyranny.
Although this contractual theory seems strange for those who think of the State (or the Crown) as a less voluntarist entity, if this contractual conception of the State is discarded, then democracy itself becomes extinct because citizens no longer hold sovereignty in a government.
Of course, governmental decisions are always made by individuals, so, if the majority principle is a fundamental rule of the democratic system, the verification of the largest number is the result of an arithmetic sum of personal volitions.
But many conservatives in Australia hold a more metaphysical view of “the Crown.” Accordingly, the Crown is perceived as the highest ideal of the relation between a monarch and their “subjects.”
Accordingly, the term Crown acquires an almost mystical status with a potent will that is not understood as merely the sum total of personal volitions.
The main problem with this metaphysical perspective is that the faithful become fully confident that they have espoused the only true and immutable constitutional doctrine.
Indeed, those who rely on such mystical explanations of our Constitution to defend the Crown’s ontological superiority maybe unintentionally legitimise a dangerous perception that we are all members of one political body endowed with its own soul or spirit (Volksgeist).
Accountability of Australian Governments
Be that as it may, for the last three years, Australian governments have claimed to act on behalf of the Crown exercising coercive powers on a massive scale.In some jurisdictions across this nation, entire populations were placed for many months under a form of house arrest, qualified only by a limited number of things they could do. All of this has been authorised with minimal parliamentary scrutiny.
It has long been held that accountable government requires an effective separation of legislative, executive, and judicial arms of government.
Accountability is central to democratic, representative government, but this is not possible if all power is ultimately concentrated in the hands of a few.
However, the Crown, which is epitomised in Australia by the heads of state, has no real power to intervene in the political process. Instead, these so-called “representatives of the king,” governors and governor generals, are ultimately chosen by the ruling political elite and act strictly according to their “advice.”
Above all, the design and operation of our parliamentary system is not about checking governmental powers, thus making accountability extremely difficult to achieve.
Of course, Australians used to think prior to the alleged pandemic that their fundamental legal rights were well protected, but they have now finally realised that all their freedoms “under the Crown” are solely dependent on the goodwill of their political oligarchy.
Australians need constitutional reform as their governing elites have demonstrated a willingness not only to ignore its duty to protect fundamental rights but also to flout that responsibility by creating legislation that infringes on these rights.
