Conniving in Constitutional Illiteracy

The Deficiencies of the Australian History Curriculum

historyIt was once the case that the political and constitutional history of England and Australia dominated the study of history in schools. But since the mid-1980s historians have largely abandoned these matters for social history. While the apostles of social history might say that what they have to offer is a gain, and it is, the arrival of this new history has also had the effect, intended or not, of crowding out political and constitutional history.

The social history approach does not always enhance our understanding of the past, for it produces a very odd account of the past when it stumbles into areas where it lacks understanding. Take slavery. According to the History 9 textbooks, slavery in the British Empire was abolished as the result of a social movement. Now while such a movement was very influential it was not in itself sufficient; legislation was required to abolish slavery in the British Empire in 1833.[1] The failure to mention this might create the impression that somehow it just went away because people protested. This is a typically adolescent view of social change and ignores the complex ways change actually occurs. [2]

It would help students to know that in 1772 the English courts declared slavery unlawful in England when the Court of King’s Bench set free a Virginia slave who had been brought to England, on the basis that there was no slavery in England.[3] The case was cited and applied in a habeas corpus case involving the illegal detention of an Aboriginal boy in New South Wales in 1861.[4] Students should also know that the Governor of New South Wales declared in 1788 that Australia would not permit slavery.[5]exhibition building

Similarly, many of the major changes in the status and rights of women in the nineteenth and early twentieth centuries were the result of legislation. The Australian colonies led the way in first protecting the property of married women, before turning to the rights of women to vote and to enter the professions. During the 1860s and 1870s the various colonies passed Married Women’s Property acts that allowed a woman to control the property she brought into a marriage. Until then, once a woman married her husband took control of her property for the duration of the marriage. It is legitimate to argue that social movements provided the political pressure for these legislative measures, but it is a mistake to ignore the role of the law in effecting these changes. Without the law the change would not have been made.

The second and more profound impact of this style of history is to bias the subject in favour of the left-wing preference for the history of exploitation and deprivation. While pages in the textbooks are devoted to Karl Marx, to socialism and to the struggle of the working man, the coverage of nineteenth-century liberalism is almost totally neglected. How is it possible, and for that matter to justify, leaving John Stuart Mill out of a history of the nineteenth century? His writings on liberty, on the subjection of women and on representative government are major landmarks that are totally ignored. Yet in nineteenth-century Australia they were read and appreciated.[6]

The Neglect of the Drive for Self-Government in the Nineteenth century

The portrayal of nineteenth-century Australia as only involving the struggle of the workers and women for their rights creates the impression that nineteenth-century Australia was a particularly unfree place. But in the 1840s Australians argued long and hard for self-government, which the British conceded, and in the 1850s the colonies wrote their own Constitution Acts, which, though amended since, are in many ways still in place today. This was a huge advance and helped establish features of the constitutional system that we still use. These include a tradition of constitution writing that now exceeds 175 years, making Australia, despite being relatively new compared with Europe, one of the most stable democracies in the world with one of the longest records of successful constitutional government. These developments are evidence of an Australian mastery of the arts of internal peace.

At the same time as Australians were arguing for self-government, they also led the world in instituting voting by the ballot. In fact Australia not only instituted this innovation in democratic practice, it also taught much of the rest of the world how to vote. Laws mandating voting by ballot were introduced in Tasmania in 1856, followed by Victoria and then South Australia. Victoria was the first colony to hold an election using this method of voting in 1857. When the British enacted voting by ballot in the Ballot Act 1872 they adopted the cross-in-the -square voting method pioneered in South Australia in 1858. This simple method was then adopted in Canada in 1874 and subsequently by forty out of forty-four American jurisdictions between 1888 and 1910. These laws in the United States were called the Australian Ballot.[7] All of these changes were made by law and are part of a long and successful gradualist legal tradition. Australians should be better acquainted with these innovations. They are something to be proud of.

The Sin of Presentism: Terra Nullius

Every serious historian knows that it is an intellectual error to foist modern ideas or concepts on the past when the idea or concept was not then in use or which, if it was in use, had a different meaning from that employed in the present. Even more deplorable is a tendency by the ill-educated to judge the past on the basis of present values. The worst example of this is the persistent use of the Latin term terra nullius to describe the British settlement of Australia.

Terra nullius is an international law term that emerged in the late nineteenth century, was not used in any eighteenth-century British source, and certainly not by the British in or before 1788[8]. The term only entered our law in 1978.[9] Terra nullius does not mean “nobody’s land” or “land owned by nobody”, nor did it mean that the British thought Australia was uninhabited before 1788. It meant land over which there was no sovereignty or which was not the subject of a recognised sovereignty claim. Such land might actually be uninhabited, but was, to use the correct term res nullius, land that was found uninhabited and unclaimed. Of course uninhabited land is not necessarily terra nullius. Many islands around Australia are actually uninhabited, but nevertheless they are not terra nullius because they are subject to Australian sovereignty.

On the other hand the British had a view about the taking of land in the late eighteenth century. They knew that there were people on the Australian continent even before 1770, as evidenced by the reports of earlier explorers such a William Dampier in 1699 and the Dutch explorer Abel Tasman in 1642, and thus knew that Australia was not uninhabited. The prevailing European doctrine in 1788 was that the earth was given by God to all to be used properly. Lands with small scattered populations could, on the European view, be occupied by others.[10] We might say this was a mere rationalisation for taking the continent, but the point of studying history is to understand first and to judge second.

There was nothing in this view about terra nullius, which was irrelevant, inaccurate and unnecessary to our historical understanding. It was a device used by the High Court in Mabo v Queensland in 1992 to create a space to acknowledge native title in Australian law without questioning sovereignty or the legal basis of the present system of government. All claims by Aborigines to sovereignty over Australia or even exemption from Australian law have been rejected by the courts.[11] Mabo held that the old view, that sovereignty by settlement meant that all land in the territory settled vested automatically in the Crown and that therefore no prior land holding before settlement existed, was wrong on the facts. Students should also be told that Eddie Mabo actually lost his personal claim and that his land was only handed over to his family by the Queensland government in December 2012.[12]

The simplistic view that Aborigines were despoiled of their lands is a distortion of the historical record. South Australia, which is oddly neglected in the textbooks, had a strong liberal humanitarian tradition. Aboriginal reserves were set up early and an 1860 report shows that there were numerous locations for these on the Adelaide Plains alone. Nineteenth-century South Australian legislation on hunting and fishing that restricted these activities by the settler population, acknowledged Aboriginal practices by exempting them from the law as early as 1864.[13]

Apart from the above it is worth knowing that Aboriginal land legislation was passed for the Northern Territory in 1976 and in South Australia in 1981 well before the decision in the Mabo case in 1992 and the passage of the Native Title Act 1993. As a matter of law the juristic basis for native title now rests on the act of 1993, not on the Mabo case itself.

Lack of Continuity: The Missing Seventeenth Century

One of the major deficiencies of the curriculum is the lack of continuity. Leaping about in time and space has the effect of leaving gaps that are not filled or even explained. As a result, major changes in recent centuries that were accomplished through democratic and legal means are either largely or wholly ignored. This seems to be a peculiarity of Australian historical writing and was noticed as such by the eminent American historian Bernard Bailyn when he commented on the oddity of the history produced in 1988, which produced snapshots of Australian history as fifty-year intervals since 1788. As Bailyn pointed out, there was no indication of how Australia changed between these periods nor did this history account for the dynamics of the changes that occurred.[14]

One way this distortion manifests itself is by the periodisation of history within the existing curriculum. European History ends with the Italian renaissance in 1600 in History 8 and starts up again with the industrial revolution in 1750 in History 9. The effects of jumping 150 years to the industrial revolution are two.

First, it allows the emphasis to be placed squarely on left-wing matters such as the struggle of the working-class and the emergence of socialist doctrines associated with the rise of industrialisation. The other effect of the leap to 1750 is that it leaves out the vitally important seventeenth century in England, with the result that the constitutional highlights of that period are omitted altogether. Yet the constitutional struggles in England after 1660 produced the Habeas Corpus Act 1679, the Bill of Rights 1689, the Toleration Act 1689, not to mention the Act of Settlement 1700 that secured the independence of the judiciary via security of tenure. All of these statutes and the principles that underlie them are part of contemporary Australian law and part of the tradition of liberty that grew up during the seventeenth and subsequent centuries and which we still enjoy today.

The omission of the Bill of Rights is particularly serious since it mandated annual parliaments, the principle that the executive cannot suspend or dispense with the law, required that all taxes have to be raised by parliament, reinforced freedom of parliamentary speech (first mentioned in Richard Strode’s Act in 1512) and confirmed the right to petition parliament. To leave all this out of a modern Australian education is to connive in constitutional illiteracy.

The Omission of Liberalism and the Enlightenment

The other effect of ignoring the late seventeenth century is to overlook the origins of the liberal tradition associated primarily, but not exclusively, with John Locke and his views on the importance of private property and the consent of the people as ideas underpinning a modern political system.[15]

The enlightenment in Scotland is also largely neglected. This introduced amongst other things the notions of moderation, toleration and compromise as essential to civil peace.[16] These values underlie the successful operation of a modern political and social system to this day. In consequence there is no David Hume, only a brief mention of Adam Smith, and nothing on the French, who were of course central to the whole movement. No Voltaire who preached toleration especially in religious matters,[17] and warned against the dangers of fanaticism;[18] no Rousseau, no Montesquieu and the separation of powers. Nor is there anything on the important representatives of the Enlightenment in America such as Jefferson or Madison on a written constitution, judicial review of legislation and a constitutional bill of rights. Thus the account in the texts of the American Revolution mentions 1776, but amazingly not the most important result: the Constitution of 1787, which remains the world’s oldest continuous written constitution.

Nor is there any account of the key German writers of the eighteenth century, especially Immanuel Kant, who famously referred to the “crooked timber of humanity”,[19] meaning that human beings were diverse and could not be made to fit a common mould. He also warned that happiness was individual and could not be compelled by or conferred by the state.[20] Kant was also a strong supporter of freedom of discussion of public matters and of academic freedom,[21] as were other leading German thinkers such as J.G. Fichte and Wilhelm von Humboldt.[22]

The Need for Balance

Before anyone gets bent out of shape, I am not saying that the industrial revolution and its consequences should be left out or that the social aspects of history do not deserve a place. Some of these changes are vital both to understanding the springs of political change and to grasping the accomplishments in the past. Consider the transformative effect of public health measures such as clean water and sewerage management in the nineteenth century that together helped to wipe out serious diseases such as cholera and dysentery in modern countries. Or the importance of electricity, without which this essay could not be written and the gadgets we take for granted simply would not exist. Both of these developments were practical outcomes of the scientific revolution that began in the seventeenth century and without which the industrial revolution would not have been possible.

But as this essay has shown, there are major omissions from the curriculum. What is required is a re-balancing of the content to give students a more accurate view of the past. While it is often said that the distortions in the current curriculum are ideological, my view is that the problems have arisen because the universities no longer produce graduates with a sufficient knowledge of political or constitutional history. The last time a constitutional history of Australia was published was in 1979.[23] In 1985 one of the few academic historians working in this area lamented this loss and penned a heartfelt plea for more attention to be given to this area of history. Yet there are historians who maintain that politics and law matters to our society and that the history profession should neither abandon these matters nor should it regard history as mere sociology or cultural studies. [24]

To study history is to subject oneself to an intellectual discipline that teaches a dispassionate examination of the past, warts and all. It is not an exercise in condemning the past for not having our enlightened attitudes, nor is it an exercise in triumphalism. It requires courage since the student will discover the failings as well as the successes of fallible creatures; their false starts; their ideas not taken up; their follies and illusions as well as their ideals. Above all it should teach that the past is not necessarily like the present; that the past was different and that it is a mistake in education to attempt to reduce a serious subject to the illusory test of contemporary relevance.

David Clark teaches and writes about legal history and public law at a South Australian university.

[1] Slavery Abolition Act 1833( 3 & 4 W iv c 73) (UK)

[2] For a critical view of politics that equates gestures with serious political activity see Bernard Crick, In Defence of Politics (Penguin 1962).

[3] Sommerset v Stewart (1772) Loft 1(KB).There was a similar decision in Scotland in 1777: James Boswell, Life of Johnson(Pat Rogers Ed)(1980) 885.

[4] Ex parte West (1861) 2 Legge 1475(NSW SC).


[6] ‘John Stuart Mill on Liberty’, The Empire (Sydney), 26 March 1860 page 2; ‘Mr J S Mill on the Extension of the Suffrage to Women’, Empire(Sydney) 16 July 1867 page 3,

[7] David Clark, ‘Law Reform as a Legal Transplant: The South Australian Ballot in Australia and in America, 1856-1910’, (2009) 11 Flinders Journal of Law Reform 293-325.

[8] Michael Connor,The Invention of Terra Nullius came in for severe criticism by the professional historians mostly on the ground that the acerbic tone of the book was disrespectful towards other authors, but no one managed to dislodge or refute the central claim of the book that terra nullius did not exist as a term in the eighteenth century.

[9] Coe v Commonwealth (1978) 18 ALR 592,

[10] Emmerich Vattel, The Law of Nations (1758).

[11] R v Wedge [1976] 1 NSWLR 581; Coe v Commonwealth (1978) 18 ALR 592(HCA); Walker v State of New South Wales (1984) 182 CLR 45(HCA); McDonald v DPP (2010) 26 VR 242.

[12] Queesnland, Media Release, Return of Mabo’s Land to Traditional Owners, 14 December 2012 owners.

[13] Protection of Animals Act 1864(SA) s 6.

[14] Bernard Bailyn, On the Teaching and Writing of History (University Press, New England, 1994) 61

[15] John Locke, Second Treatise of Government (Peter Laslett ed)(Cambridge University Press, 1960).

[16] David Hume, ‘Politics as a Science’. In Essays: Moral, Political and Literary (Eugene F Miller Ed)(1987) 27.

[17] A Treatise on Toleration and Other Essays(J McCabe Ed & trans)(1994).

[18] Philosophical Dictionary ( T Besterman Trans)(1972) 201-203

[19] Immanuel Kant, ‘Idea for a Universal History with a Cosmopolitan Purpose’ in Hans Reiss(ed) Kant’s Political Writings (Cambridge University Press, 1971) 46..

[20] ‘’On the Relationship of Theory to Practice in Political Right’ ibid 73-74.

[21] ‘What is Enlightenment?’ ibid 59; The Conflict of the Faculties (Mary J Gregor ed)(University of Nebraska Press, 1979) 29.

[22] Fichte: Early Philosophical Writings (Daniel Breazeale ed)( Cornell University Press, 1988) 177; Wilhelm von Humbolt, The Limits of State Action(J W Burrow ed) (Liberty Fund, 1993)

[23] W G McMinn, A Constitutional History of Australia(Melbourne: Oxford University Press, 1979)

[24] Margaret MacMillan, The Uses and Abuses of History (Profile Books, 2009) 37.

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