Half a century ago a republican in Australia would have been an iconoclast _ someone who tilts at icons.
Now, the iconoclast is someone who tilts at the icon of the coming republic, which is increasingly seen as “”inevitable” and a Good Thing.
Next month will see the publication of a history of the common law, Barbarism to Verdict, by author and barrister Justin Fleming, who in an almost off-hand way joins these latter-day iconoclasts.
“”If a country can itself decide simple to remove royal authority, then it must already have independence, in which case the change of Head of State is a mere formality of no consequence which can in no way change the material quality or spirit of life,” he writes. “”It wouldn’t magically reduce the fantastic excess of prosecutions in a land where life is madly over-governed and lived out under the voracious appetite of almost every authority from parking inspectors to health authorities for court orders and penalties. The fact that there would be no royalty in Australia would not remove Australia’s dire need of a Magna Carta to address an intolerable level of official interference in liberty. The impression that change would be experienced is illusory.”
Acknowledging the republic is inevitable, he writes: “”The last stages of formal independence appear to be little more than changing the names and titles. This seems to entail a bizarre collaboration of poets, novelists, judges, business people, lawyers and serious-minded, if retired politicians.”
This comes as a small observation in a survey of 1000 years of the emergence of the common law and the rule of law that emanated from the British Isles.
Putting aside the importance of symbols for the moment, it is a credible criticism of the Keating-Turnbull minimalist approach.
In short, a minimalist republic is a wasted opportunity that does not sit well among the grand steps of freeing society from arbitrary rule, oppression, inequality and injustice.
The real criticism of the Keating-Turnbull approach should not be that they might have a secret agenda to make significant changes the constitution, but that there is no significant agenda at all, not even an agenda to discuss such issues. The criticism should not be that the Keating approach is a grand gesture, but that it is not one.
There is perhaps a reason for this. The big legal and constitutional changes come as a response to significant injustices or changes in society. Oppressive King John (Magna Carta); taxation without representation (American Independence); the need for defence and commercial union in a sparsely population continent (Australian federation); and appalling injustice to indigenous people (the 1967 referendum and Mabo), are examples.
The republican push seems to come not from any changed circumstance or injustice. It comes because a new century is coming and because “”it is inevitable”.
Original federation did not come because it was a new century. It was in the making anyway and might have happened a year either side. Because the turn of the century happened to be close they set upon that date.
Don’t get me wrong. I am in favour of a republic, but if it is to be a minimalist one, let’s do it next year or the year after. And then if there is a mad numerologically driven impetus to change significant things because it is a new century, then let’s save 2001 for the legal and constitutional changes that matter.
Those who abhor change deny the legal history of common law countries. They often say “”if it ain’t broke, don’t fix it”; “”our Constitution has served us well, don’t change it” and “”the common law has been the guarantor of our freedoms, there is no need for change”.
Stuff and nonsense. The genius of the common law and the constitutional framework of common-law countries has been precisely their ability to change, as Fleming points out in his book.
You see how awful the common law has been at stages in its past and how it has been changed for the better.
Fleming describes the trial of Farmer Brown:
“”The event takes place in church during Mass. Farmer Brown holds out his hand with the palm open. A rod of iron is heated to red in the chalice of the fire. . . . The bishop then requires Farmer Brown to grasp the hot rod firmly in his hand and walk for nine paces after which he may set it down. His hand is then bandaged. This completes part one of the ordeal which is a cheery little diversion for the congregation as they reflect upon their own sins and trespasses, aas the ordeal is but a mere pinprick compared to eternal punishment. Part two of the trial takes place three days later. The same parties are assembled to inspect the hand of Farmer Brown. The bandages are removed and if the hand is cleanly healing, then “God be praised’ and he is innocent. If, however, it appears to be uncleanly festering, the Farmer Brown is adjudged guilty. . . . Penalties might be fines, loss of limbs or death.”
Of course, whether a wound was festering was open to much interpretation.
In pre-Norman times, this was the common law _ accepted as normal and routine, as common.
In the ensuing 1000 years, other defective aspects of the common and constitutional law _ which seemed perfectly normal to most of the people at the time _ have been changed: serfdom, judges imprisoning juries for not reaching guilty verdicts, child labour, whipping, confiscation of women’s property upon marriage, hanging, immunity from prosecution for rape in marriage and freedom to arbitrarily dismiss from employment.
The implication is that there are probably more defects in the common law yet to be rectified, and other defects are yet to emerge as time goes on.
That does not mean the common law is not good. To the contrary; it has great virtues, particularly its adaptability to circumstance.
That, indeed, is its essence. The common law is the law of all; it is common to all and is based on the customs of all. Those customs and attitudes, of course, change. As they change the law and the constitutional framework must change, too. Sometimes the change is quite swift after a lot of pressure has built up: Magna Carta, Charles I’s head, the Act of Settlement; American independence and Mabo are examples.
Beware of opponents of change wearing badges “”Protector of the Common Law”.
(Incidentally, Fleming treats the common law system as embracing the whole box and dice, not just the judge-made law through the cases, which is the classical definition of common law.)
The excellence of Fleming’s book, aside from being joyous to read (for Fleming is a playwright of some note _ the Cobra, Harold in Italy), is that it reveals a millennium of achievements which when looked at later are seen as self-evident, obvious and a wonder why anyone would have it any other way.
Let us look at some of them:
1. Reduction of arbitrary power.
It took until at least 1649 before English kings finally got they message that they could not wander around the countryside stealing land, punishing people without trial, invoking “”law” without reference to Parliament, granting monopolies and so on.
In 1608 Chief Justice Edward Coke had an argument with James I about the divine right of kings.
Coke said James was in error, citing Bracton: “”The king is not subject to men, but is subject to God and the law.”
James knocked him to the ground _ in Fleming’s words Coke was king-hit.
Fleming tells us of Coke: “”In addition, his annoying habit of mentioning Magna Carta within earshot of Charles I earned him seven months in the slammer at the Tower of London”.
Nowadays it is obvious that the Crown or Executive cannot act arbitrarily or contrary to the law of Parliament. We have come a long way, but there is still a way to go.
However, we see that when the Executive does control Parliament, through a majority-party status, it often causes Parliament to hand wide powers to Ministers in the name of efficiency and good government.
We have taxation officials, registrars, inspectors, traffic police with wide powers of entry, seizure and arrest.
We have a choking by regulation as Parliament attempts to dot every i and cross every t, in a futile attempt to predict meet every circumstance.
We also have an inequality between accused and prosecutor of resources and access to evidence that has resulted in wrongful convictions: Chamberlain, Splatt, McLeod-Lindsay, Puhl, who are perhaps the tip of an iceberg.
These things need constant attention. The genius of the common law is that it is not static.
2. The rule of law and equality before the law.
In theory we have it. In Australia we have seen Ministers of the Crown, Premiers, Judges and Members of Parliament made answerable in the courts for their actions. And by and large in practice we have it. However, as the “”Access to Justice” report presented earlier this year points out in damning detail, some groups in Australia are denied, through lack of money and discriminatory practices, access to the courts and justice. This is not equality before the law.
3. Elimination of cruel and unusual punishment.
Trial by ordeal, amputations, whippings and hangings are gone. However, this very week we read of a sex-for-favours scandal in a women’s jail. Maybe in a century people will wonder at the way we locked people up for years with no serious attempt to reform and include transgressors back into society. And they will wonder about tainting as criminals people with a drug-dependency health problem.
4. Trial by jury, no self-incrimination. Nearly all serious offences are dealt with by juries. But every now and then suggestions are made that juries are not up to complex white-collar offences. The recent wash up of the 1980s with a mix of convictions and acquittals is showing these fears to be unfounded. On self-incrimination, the resistance to the obvious solution of only permitting video-taped confessions is puzzling. The words on paper without the body language are too easy to concoct.
5. The great freedoms: speech, assembly, freedom from unreasonable search and seizure, the right to petition for grievances, the right to own property and for just compensation if it is taken for public purposes. Except the last, these are not written into our federal and state constitutions and whereas they have been by and large respected, they have been tampered with at the edges incessantly.
And now let’s look at some other constitutional questions in the light of 1000 years of common-law adaptability. The legal system has to change from time to time to avoid pent up pressures exploding and to respond to changing needs.
The question of which level of government should exercise which powers has been in the too-hard basket for 20 years. Technological change seems to cry out for a national approach to transport, water, electricity, environment, cities and car registration, for example. On the other, had it seems to make regional and local control of hospitals and schools more sensible. Yet we have gone the other way. We have a national government hamstrung on one hand and wasteful duplication on the other.
If we look at a 1000 years of legal history, success comes with legal and constitutional change, not from atrophy.
The 1990s in Australia threatens to be a decade of political petrification. Every major idea or proposal for change seems to get a quick knock on the head for fear of electoral backlash. It happened this week with citizens’ initiated referendums. The knocking of new ideas becomes even more routine when a “”let’s get the story today” press gallery thrusts the ideas at different people in the same party and then portrays any minor differences as a “”rift”. Politics gets strait-jacketed into the uniformity of the rejection of the new.
The genius of a millennium of our legal and constitutional system has been its ability to change with changing circumstance. A changing date on a calendar is not a change in circumstance of significance. A misbehaving bunch of royals, growing multi-culturalism and changes are.
The state of the Constitution and the law in Australia is fairly good. But let’s not get too smug and think it is perfect with no need for change.
The past 1000 years, as “”Barbarism to Verdict” indicates, reveal a history of a need for frequent small changes and occasional large changes if the law is to remain common _ that is a law for all.
Barbarism to Verdict. A history of the Common Law. Justin Fleming. With a foreword by John Mortimer. Angus and Robertson. $16.95. Publication August.