The Crown and the Voice: Does power need authority and sacraments?
Tuesday, 26 September 2023
| Paul Tyson
Our notion of sovereignty is embedded in a long and complex series of developments that define Australia’s most foundational structures of government and law. As a theologian, there is much I do not understand about this complex history. Yet clearly, the Crown is a theologically authorised entity embodying the highest category of sovereignty in the Australian constitution.
The anointing and coronation of Australia’s sovereign – King Charles III – earlier this year by the Archbishop of Canterbury highlights just how essentially theological our notion of sovereignty actually is. In a public theology ritual, the Church in England makes our monarch a sacrament of ruling power, who embodies the divinely mediated earthly authority of the Crown. However post-religious we might like to think we are, theological categories are still integral to anything concerning sovereignty, such as the forthcoming referendum on our First Peoples’ Voice to Parliament.
Showing an astute public theology sensibility, the Statement from the Heart accurately defines both First Nations and Western categories of sovereignty as ‘spiritual’. Further, and in perhaps startling terms, the Statement from the Heart proclaims that Indigenous sovereignty ‘has never been ceded or extinguished, and co-exists with the sovereignty of the Crown’. High, big and far-reaching claims indeed, but what do they mean?
Can different sovereignties co-exist in the same land? Can sovereignty be shared? What if sovereignty was constitutionally recognised as co-existing between the Crown and the First Nations of this continent? What would happen to how we understand sovereignty and the practice of power if we got rid of the Crown and got rid of the Church that authorises the Crown?
Let me try to explore some of these issues as a theologian, which is to say, not as a lawyer or political scientist.
Authority and power
In our present system of governance, our crowned sovereign has no direct power, for the executive power organs of the state are controlled by Parliament, which swears its loyalty and allegiance to the Crown. The Crown is our highest institution of political sovereignty, and the hereditary monarch who embodies that institution is seen as a divinely ordained sacrament of political authority. Why, one might ask, do we have a religious sacrament of political authority in the first place, and is there any need for such a seemingly medieval, religious and perhaps imperial notion in Australia today?
Whether you are an aspirational republican or a constitutional monarchist, there are interesting and significant reasons why we have a Crown. However, those reasons are so entrenched within the habits and forms of governance that we take them for granted, and they are largely invisible to us. Let us try to make them appear.
In Australia’s English law system of government, there is a distinction between what – as a theologian – can be characterised as authority (located in the Crown) and power (located in the government as accountable to Parliament, as expressing the democratically represented will of the people). Theologically, the sovereign (our monarch) is a sacrament of political authority, as mediated to humanity from God. The Archbishop of Canterbury anoints the sovereign to bear this sacrament of political authority in all the territories around the globe that are populated by subjects of the Crown. The core theological notion here is that governance itself is a divine gift to humanity, and that even the sovereign (the monarch in our system) has no ruling authority in their own person, but sovereignty belongs only to God.
Centrally, the monarch is a sacramental mediation of divine authority to our system of governance. The practical point of this is very simple: might and mere legality do not make for majesty and right.
However, just because might does not make right does not mean that governments do not have might. Indeed, governments exercise force, usually with at least some moral ambivalence, and sometimes lethally, with the aim of upholding a just and legal human order, and to protect their people from invasion by foreign powers. As the Apostle Paul says, rulers do not bear the sword in vain (Romans 13:4). Law, order and the protection of a nation’s people are maintained by power and force. But might does not make right. Power without authority – as in Hobbes’ bleak outlook on the ungoverned bellum omnium contra omnes (war of all against all) in the ‘state of nature’ – is nasty, brutish and violent; it is sub-human. But giving a sacramental blessing to ruling power does not in itself make power right. Not at all. In our Christian political traditions, the concept of Sin means that powerful individuals and institutions are particularly prone to corrupting temptations via the abuse of their power, and it is out of suspicion of such abuse that our democratic parliamentary tradition developed in which power was explicitly removed from the sovereign. Even so, in our political tradition, something does not become right just because it is done in the name of the Crown. The Crown’s ministers – Parliament, the Judiciary, the organs of Government – are prone to sin and need checks, balances and review.
Our English-origin system of government embodies a finely-tuned balancing act between a powerless but dignified sovereign to whom all ministers of the government swear full earthly loyalty, and a powerful Parliament that realises that it does not sanctify power itself just because it has power. If we remove the Crown from Australian government, we cut ourselves off from this complex heritage of uneasy stasis between authority and power, and we could well swing into a totalising concept of merely executive ‘sovereignty’ that has no sacramental referent. Being sacramentally impoverished as we now are, we could end up collapsing procedural and executive might into right, without the symbols and habits of deference to divine authority. Functionally, the sacrament of divine authority overshadowing the horizon of human power, however imperfectly mediated, however imperfectly applied and understood, is a significant habitual limit on executive hubris and popularist demagoguery. Keep the hard-to-define and transcendently-horizoned Crown, I say.
The coronation of Charles III reminds us that, in Australian governance, ruling authority really is a ‘spiritual notion’. Without some sacramental horizon of just and transcendent deference undergirding our practices of law and power, the often very instrumentally brutal business of political power can lose all dignity and can lose the respect of the people who are ruled. The dignity of the Crown is an important ingredient in Australia’s political stability, though we might only notice this sacramental dignity in its absence (if we get rid of it). The Crown is a sacrament of deference to the divine underpinning of our aspirations towards justice and our recognition that earthly power must be subject to divine authority within our system of governance.
When two sovereignties collide
There are interesting parallels between the Crown and what the Statement from the Heart calls the unceded, unextinguished sovereignty of the southern continent’s first nations. From time immemorial the ancient nations of this vast continent have lived under divinely gifted customary law. Sovereignty – as the authority dignifying human rule and upholding good social order – was here before the Crown arrived. Yet, the Crown really did take the territory of Australia, and used force to do so. And the rule imposed on this territory is indeed backed by the force and legal structures of the English-origin Crown system of government as set up in these English colonies, and as federalised in 1901. This is a fact of history. There are many facts of history where invasion, conquest, war and colonisation result in a new system of government replacing the previous system. Whether any of these founding acts are morally justifiable is a separate matter from the fact that they have happened. And all human affairs – if the Bible is to be believed – are tainted by sin, as much as they are touched by divine grace. The weeds and tares always grow together in human history, and within each one of us. We should expect no perfect and good governance and no perfect and good citizenry. But we are always aspiring to the good, and when the limits of systemic corruption are overstepped, governance itself breaks down.
Terrible histories are indeed inextricable from the ‘bonds of imperfection’ in which we live. But our system has its merits. Here, power itself does not have unquestionable authority, such that strong adversarial contentions for the good can be pursued in parliament without punishment. Here, the figurehead of authority does not have executive power outside of parliament, but is a sacrament reminding us of the divine dignity of rulership, and of the high aspirations of civil life and loyalty to one’s fellow citizen and our life in common, under God. We cannot collapse right and might into one another if we continue in the theological meanings that underpin our system. The theology out of which our English Crown and Parliament system of government and law arise must uphold rigorous and free discursive contention for the common good, and requires us to always treat too high a concentration of power with suspicion.
But can sovereignty be shared?
Historically, in medieval Christendom, there were many layers of authority, law and rule operating at the same time in any given territory. The Church had one sort of authority, with its own courts and acting across many countries, the authority of local lords another sort of authority, and the authority of monarchs another sort of authority, and so on. Compared to the modern nation-state, governing authority was only loosely territorially centralised before the Reformation. There was, however, a unifying divine authority, commonly recognised, as mediated through the Church. The unity of what we now call religion allowed for shared sovereignties in the one territory. The Reformation broke that unity and the violent turbulence that resulted shows us what happens when a unity of authority recognised by different powers disintegrates.
Arguably, it is Henry VIII who consolidates all forms of power entirely in himself, via Parliament and Church, in a defined territory, for the first time in England’s history. Yet this autocratic consolidation does not last. The Crown and Parliament Recognition Act of 1689, and the Bill of Rights of the same year, functionally removes monarch-determined power from royal authority. This ends the brief age of the Divine Right of Kings, leads to the consolidation of the modern idea of the nation-state as a defined territory under the functional sovereignty of parliament alone, and births the English Crown/Parliament system of power and authority under which we still live today in Australia. The times have definitely moved on since the layered and sovereignty-fluid days of Christendom that pre-date Henry VIII: it is hard to envision how co-existing sovereignty arrangements could now be applied to modern Australia. However, the distinction between power and authority is basic to Australian governance, and perhaps this distinction can fruitfully be applied to understanding the Voice to Parliament.
Power, authority, sovereignty and The Voice
The Voice does not ask for power. Instead, it asks for a constitutionally recognised and authoritative Indigenous consultative body that speaks to the government on matters that concern Indigenous affairs. As a consultative body that has authority but not power, in some manner like the Crown, this would be in no competition with a democratic majoritarian parliament for power. What Parliament does with that advice is governed by party politics and the workings of Parliament alone. Clearly, the Voice is no threat to prevailing parliamentary processes and normal governing power.
However, there are two sorts of concerns that arise here. Firstly, if the Voice has no power, why have it at all? Secondly – regarding the Statement from the Heart – can we genuinely recognise First People’s sovereignty (i.e., is such a thing in any sense recognisable) and, if we did, could we still be a single unified nation?
Do we wish to treat Aboriginal Australians as a special racial class of Australians who have unique signatures of suffering and hardship that have directly or indirectly been caused by the appearance and ultimately violently imposed consolidation of Crown-authorised governing power in Australia, at the same time that we will not allow any real sovereignty or real self-determining power to be handed over to them? Are we trying to have our cake and eat it too? Why not give the Voice some actual power to try to fix persistent Indigenous problems that have arisen as a result of colonisation, which the Australian parliament has not been able to fix? Does the Voice not go far enough?
Then again, the rising presence of bi-cultural, highly (Western) educated and skilled Indigenous leaders getting into positions of real significance for Indigenous communities may be the best sort of solution to persistent Indigenous disadvantage, whatever goes on in Canberra. Perhaps the Voice and the constitution are not in themselves going to be that significant for a better future for Indigenous Australians.
And, in a more sinister register, if having ‘real’ power is seen largely as getting as big a financialiseable slice of the modern Australia cake as one can, simply as an Indigenous birthright, surely this undermines the spiritual and sacramental authority notions that justify having a special Indigenous birthright? Indigenous Australians seem largely to accept that modern Australia is not going away, and that they have to live within a modern nation-state where they are a small and politically powerless minority. Indeed, they are politically powerless, and they are functionally being assimilated into modern Australia. They may (hopefully) keep their distinctive cultural heritage alive, but basically, there is no future for Indigenous Australia outside of modern Australia. So, a better future for most Indigenous Australians would probably look like a culturally vibrant yet functionally assimilated future where Indigeneity does not carry its present statistical signatures of systemic disadvantage. In that case, why should they be treated any differently to other ethnic minorities in Australia? Should section 51 xxvi be removed from the constitution so that our system of government becomes genuinely colour blind as concerns race, such that no government agency has any special executive power over Indigenous Affairs, or any other racial minority? Local community leaders taking the community concerns of their own people into their own hands, without the relentless interference of special government agencies set up to ‘help’ the race-specific needs of Indigenous people, and without Indigenous Affairs and ‘law and order’ politics being a relentless political football, may be a better path for good outcomes than what we thus far have tried.
Then there is the question of whether Crown sovereignty as we currently practice it in Australia can be co-extensive with any pre-existing Indigenous sovereignty in this context. Clearly, we cannot have one modern nation under the authority of two equal and unifying, yet racially differentiated, sovereigns to whom all members of parliament swear final allegiance. Unity is a key feature of our Crown tradition as the sovereign monarch is a single sacrament of ruling authority, giving unity to the polity of diverse interests, origins, and powers. The authority of the Crown unifies the overarching traditions of justice and authority under which Australian law and government is unified.
What then is Indigenous sovereignty? Is the highly localised and familial authority of Aboriginal elders, as recognised by their own peoples, in any viable manner translatable into being an authority for law and government for all Australians? I cannot see how that could work. The way ruling authority is expressed and the scale of the communities are so vastly different that they are incompatible. I cannot see how we can recognise the prior sovereignty for each of the hundreds of Aboriginal nations as a partner with the Crown in modern Australia, as that would mean there can be no single Indigenous sovereign with whom the Crown could partner. In any case, historically, the small, ancient and discrete nations of the pre-colonial southern continent have been assimilated into the one Crown-authorised nation-state of the colonial settlers. This is what has actually happened. That this was an overt act of territorial seizure, and often entailing horrendous atrocities against the peoples, laws, sacred heritage and territories of the first Australians, is also a fact of history. Perhaps we should honestly face the past, recognize that the structural political and legal transition from Aboriginal antiquity to modern Australian cannot be undone, and move forward as best as we can from here?
Conclusion
To wind up: the coronation of King Charles III helps us to see that we need to think more theologically about what sovereignty is in our actual system of government and law. In Australia, Crown sovereignty is a sacrament of divine authority in rulership that works as an intrenched habitual counterbalance to merely pragmatic and procedural parliamentary and governmental power. This is a significant check against our government’s ever-present power-concentrating ambitions: the desire of politicians to deface any distinction between procedural-and-political might and genuine right. In our tradition, justice is not reducible to law, and good governance is not reducible to mere democratic proceduralism and the effective use of executive power. Royal Commissions – however limited they usually are – will always seek to hold the exercise of governing power to a higher and, finally, sacramental understanding of valid ruling authority. In our traditions of law and governance, justice and authority stand sacramentally prior to procedural legality and executive power.
When it comes to thinking about the Voice to Parliament, if we recognise that the Voice only has authority and has no power, on the one hand, this may be a very good idea – it may give appropriate dignity and constitutional recognition to our First Peoples, and it may genuinely help address systemic problems for many Indigenous Australians. On the other hand, assimilation cannot meaningfully be undone and our First Peoples are by no means immune to the financialised pragmatism of reductive power-centrism in modern Australia. Perhaps constitutional and institutional attempts to reverse the past are not actually doable or desirable, and open themselves to natural paths of pragmatic abuse. How to think about the Voice is a genuinely hard question related to how we intend to evaluate and respond to our modern nation’s colonial past. Do we wish to entrench race as a category in how modern Australia moves forward legally and politically from here? Do we really intend to recognise unceded and co-existing Indigenous sovereignty within modern Australia? Do we even recognise and value our own categories of Crown sovereignty in modern Australia?
Paul Tyson is an Honorary Senior Fellow in the School of Historical and Philosophical Inquiry at the University of Queensland.
Image: Australian $2 coin front and back. By Armen Gakavian.