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.” Reflecting on this momentous event in English legal history, Lord Denning commented:
“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. 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. 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.
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 government from exercising absolute power.
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 metaphysical view of “the Crown.” Accordingly, the Crown is perceived as the highest ideal of the relation between a monarch and their “subjects.” The term Crown thus 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 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).
In a democracy, however, governments are instituted by the people, and all power emanates from the people, who must exercise their power directly or by means of their elected representatives. When we refer to our constitutional model of parliamentary democracy, it would be far more appropriate to speak of the sovereignty of the people and not the sovereignty of the King.
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.
In Australia, the Crown, which is epitomised 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 class 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 urgently need a constitutional reform as members of the ruling class have demonstrated a willingness not only to ignore their duty to protect fundamental rights but also to flout that responsibility by creating legislation that infringes on these rights.
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Prof Augusto Zimmermann PhD
Law Reform Commissioner, WA (2012-2017)