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Monday, 20 June 1994
Page: 1700

Senator FERGUSON —My question is directed to the Minister representing the Prime Minister. Does the minister agree with the Prime Minister that the Australian constitution was `designed by the British Foreign Office to look over the Australian government's shoulder'? Is the Prime Minister aware that the constitution was approved by the people of Australia at referenda in each former colony and that the constitution was carried through the imperial parliament with just five technical and minor amendments? Or does the Prime Minister believe that those Australians who led the push for federation and a national constitution—people such as Deakin, Barton, Kingston and Parkes—were little more than lackeys for the imperial government that hoodwinked the Australian people? Why does the Prime Minister denigrate the efforts of those great Australian visionaries who were involved in overseeing the birth of our nation?

Senator GARETH EVANS —The Prime Minister, being the distinguished constitutional scholar that he is, is of course aware that the Australian constitution was drafted by, among other people, Alexander Downer's grandfather, who I must say was doing a darn sight better job than his grandson has been seen to be doing in the last few weeks. Of course that is the case and of course that is well known, and the Prime Minister should accordingly be construed as talking purely figuratively rather than literally in anything that he said about the British government. Of course it is the case equally, as those opposite might even be aware, that however much drafting was done in Australia the constitution as drafted in Australia had to be approved by the British government and had to be passed by the British parliament. In that sense, of course the Australian constitution is and remains a creature of the British colonial office, the British government and the British parliament.

  It is also the case that a number of key features of that constitution were very much in the constitution by virtue of the very clearly stated preferences of the British government at the time. One only has to look, for example, at those famous clauses, 58, 59 and 60, which provided that, if the Governor-General—and at that stage the intention was, and remained for many decades, that he would be a UK official—decided it was appropriate to reserve a bill for the Queen's pleasure, then the Queen would have up to two years to approve that bill. More extraordinarily still, our constitution contains provisions—which do not owe much to the preferences of any Australians at the time—that the Queen had the power to annul any Australian law within a year of its enactment even if the Governor-General had approved it.

  Moreover, it might be remembered that it took a very long time indeed for us to remove from the Australian constitution those provisions which were there at British government insistence on maintaining appeals to the Privy Council. Anyone who has the knowledge of Australian history that the Australian Prime Minister has, would know, as would those opposite, that Joseph Chamberlain, for one, justified that provision on Privy Council appeals largely—overwhelmingly—on the ground of protecting the interests of British banks. That is why the Privy Council position was there.

  Of course it remained the case that in all sorts of ways, for the first decades of this century, Australia was very much independent in name only. When did we have our first foreign office in this country—our first Department of Foreign Affairs with its own department and own head—run as a proper department of state? It was in 1935, 3 1/2 decades into this century. So that was the atmosphere in which the Australian constitution was crafted and drafted. That is why it has a number of the provisions that it has. No doubt that is what the Prime Minister had in mind when he made the reference he did.