Constitution circumvented
By David Flint
Spectator Australia
Australians might wonder why the former governor-general seemingly agreed to appoint the Albanese government’s Assistant Minister for the Republic. Despite the ABC reporting that Matt Thistlethwaite had been ‘sworn in’ to the republican portfolio, the swearing-in was only as Parliamentary Secretary to the Attorney-General.
Research undertaken by an Australians for Constitutional Monarchy team, advised by leading constitutional barrister Peter King, leads to the inescapable conclusion that this was a seriously unconstitutional scheme to use both taxpayers’ funds and public servants to undermine a key constitutional institution.
In comparison, while the practice revealed in the Scott Morrison ministerial positions controversy was widely considered undesirable, it involved no constitutional breach.
Given that a republican referendum campaign was scheduled to follow the widely expected victory in the Voice referendum in 2023, it was clear that this illicit exercise was designed to advantage any republican referendum Yes case to a highly improper degree.
Unsurprisingly, ACM seriously contemplated a constitutional challenge. Then, as long predicted in this column, the Voice referendum not only failed, it failed so spectacularly the Albanese government lost its appetite for a republican referendum.
As a reshuffle seemed inevitable for other reasons, common sense indicated that ACM should wait and see whether the republican portfolio was abandoned.
What is important now is to see that the Albanese scheme is exposed, including its constitutional evasions, so that it will be difficult to use this in the future, whether or not for a politicians’ republic.
If a future prime minister could use this model, he could unleash an unauthorised political campaign for any purpose or target, on any scale, with such funds as he approves and with an army of public servants.
This scheme originated in Bill Shorten’s reaction to the 2018 ALP National Platform call to designate a member of any Labor ministry to promote republican change.
Accordingly, he made Matt Thistlethwaite MP a ‘shadow assistant minister for an Australian head of state’, which Albanese changed when he succeeded to the leadership to ‘shadow assistant minister for the republic’. When Albanese became Prime Minister, he and not the Governor-General appointed Thistlethwaite as Assistant Minister for the Republic.
The Governor-General swore him in as Parliamentary Secretary to the Attorney-General, revealed here to be unrelated, as well as to two other ministries.
The ACM legal team makes the following points about the Albanese scheme:
First, the purpose of the ‘assistant’ ministry was not similar to the Attorney-General’s purpose in 1999, to prepare a fairly run referendum to be held that term to change the constitution. The assistant minister was to have no similar role, nor was there to be a referendum that term.
Instead, the government initially indicated a second referendum would, at some future time, follow the Voice referendum in 2023 provided that were successful.
What is clear is that Anthony Albanese tried to do what is beyond the powers of any prime minister
When it was not successful, a republic referendum was delayed until some vague, indeterminate time in the future. Whenever it was to be held, there was no indication that the assistant ministry would prepare it.
Second, instead of running a referendum, the sole purpose of the assistant ministry was to undermine a core institution: the Austral- ian Crown. This is not only our oldest institution; it is also central to our parliamentary and government structure, both federally and in all the states, as well as in the courts, prosecutions, and command of the armed forces.
Third, the claim that the office of the Parliamentary Secretary assisting the Attorney-General was merely operating under the name of an Assistant Minister, was patently untrue. The role was not in any one of the areas specified for the Attorney-General in the current binding Administrative Arrangements Order signed by the Governor-General and countersigned by Anthony Albanese.
In fact, Thistlethwaite’s activities had nothing at all to do with the Attorney-General’s specified activities. His role was to run a political, taxpayer-funded, public-sector-supported campaign to undermine the Australian Crown, with no anticipation of a referendum in the parliamentary term or at any reasonably precise date in the future.
Fourth, Anthony Albanese tried to establish a separate department of state to run the campaign when only the Governor-General in Council could do that.
He also purported to appoint an officer to administer it (Matt Thistlethwaite) while only the Governor-General could do that.
Both attempts were in clear breach of Section 64 of the Constitution.
Apparently aware of these difficulties, the Prime Minister offered Thistlethwaite some legal advice after writing to advise him that he ‘should’ use the Assistant Minister title.
‘If there ever is any question whether you were acting as a Parliamentary Secretary when you were using your Assistant Minister title,’ he advises, ‘this letter could be used as evidence that you are able to use your Assistant Minister title when performing that office.’
This would only be true if what was being done was within the list of matters the Governor-General has directed the Department to deal with.
This clearly did not include running a political campaign to turn Australia into a republic or undermining the Australian Crown.
In further legal advice, the Prime Minister suggests using both titles ‘so as to avoid any dispute and any risk of invalidity’ in contested cases.
Again, this advice would offer no protection against action concerning the republican campaign, which clearly cannot be supported as a legitimate activity of a Parliamentary Secretary to the Attorney-General.
What is clear is that Anthony Albanese tried to do what is beyond the powers of any prime minister.
He assumed powers restricted to either the Governor-General in Council or the Governor-General.
He established a purported department of state to undermine the Crown and establish a republic.
It was funded by the taxpayers and ser- viced by public servants.
That is why the installation, authorisation and funding of the Assistant Minister for the Republic must be condemned and never repeated.
If this is not censured, a future prime minister could direct the undertaking of all manner of unconstitutional, unauthorised activities and on a massive and frightening scale.