December 4

Need for constitutional education demonstrated by ….Professor Robert Manne’s blunder

Why did Professor Robert Manne verbal former Governor-General Sir Zelman Cowan?

It was because Professor Manne relied on a nonexistent constitutional rule. This led him and Dr Mark Mckenna to make foolish  accusations about lying and fraud.  

Here we have two leading academics demonstrating their complete misunderstanding of a central aspect of the Constitution which has featured in the republican debate. Nothing could better  demonstrate the need for sound constitutional education.  

This was in a long two part interview  posted to  The Monthly site in February, 2008.  Their error could have been easily avoided  by some very elementary research. They should have checked with the national authority on vice regal practice, Sir David Smith, whose comments have been published and are widely accessible on the internet.

Sir David has brought his research together in a magisterial volume, Head of State, published in 2005, and reviewed here on 11 April, 2006. 

We referred to Professor Manne and Dr McKenna's error  in this column on 30 March 2008; the relevant part of the interview is Part 2 between  6.26 minutes and 9.15 minutes. One aspect of the interview escaped our notice. This relates to Sir Zelman Cowan, a point we deal with below.

This interview was to promote the book “Dear Mr Rudd: Ideas for a Better Australia,” edited by Robert Manne. This contains a chapter by Dr McKenna on changing Australia into some sort of republic.

Of course, if constitutional monarchists are lying as they allege, diplomats, foreign governments, presidents, emperors, The Pope, international organizations, the Hawke-Keating governments, and the High Court have also fallen for this lie.  

They all believe that the Governor-General is Head of State or, in the case of the High Court, the Constitutional Head of the Commonwealth, the Governors being in the Curt's unanimous view, Constitutional Heads of State.

…academics imagine constitutional rule … G-G must “push off”


The principal argument Robert Manne and Mark McKenna advance for their abuse is that when The Queen is in Australia the Governor-General must disappear, and this proves to them that Her Majesty  is Head of State.

The academic republicans put their discovered rule in terms which would seem unusual for the learned world of academia.  When The Queen comes, they say, “the Governor-General has to push off.” Has academic discourse been so reduced that a supposed but nonexistent constitutional rule must be expressed with such appalling vulgarity?

A few years ago the former Chief Justice of Australia, republican Sir Anthony Mason, made a similar claim, but without the need for such vulgarity.

 Sir Anthony said it was a “robust convention” that there is no place for the Governor-General when the Queen is present. 

He sought to use this as his coup de grâce in demolishing the argument advanced by Sir David Smith that the Governor General is Head of State, an argument Sir Anthony grandly denounced at the Australian National University as “ arrant nonsense.”

Unfortunately, Sir Anthony’s paper was replete with error, this purported coup de grâce about "arrant nonsense" included. Sir Anthony's attack on Sir David centred around Sir Zelman Cowen's absence when the Queen opened the High Court building in Canberra in 1980.

(It is no doubt this which led to Professor Manne deciding that this incident was crucial in Sir Zelman becoming a republican.)

Sir David Smith points out that a practice had emerged in Canberra of Governors-General limiting appearances with The Queen, but he knew of no constitutional or other basis for it.

So he took the matter up with Buckingham Palace. He was told that the Palace also knew of no basis for the practice, which seemed to be peculiar to Australia, and that The Queen would be pleased if the Governor-General were present when she opened the High Court.As Sir David writes in his book, Head of State, he so informed the Department of the Prime Minister and Cabinet, and draft orders of the arrangements were prepared.

These provided a place for the Governor-General on the dais at the High Court.

…no rule – it was just that Malcolm Fraser took  the G-G's place…


 It was only when the then Prime Minister, Mr Malcolm Fraser, saw the draft that he decided that the Governor-General should not be present: with the Governor-General out of the way, he could take his place in the official procession and appear next to the Duke of Edinburgh.  

Sir Zelman asked Sir David not to pursue the matter, but he was disappointed and very hurt.Professor Manne and Dr McKenna attribute the former Governor-General Sir Zelman Cowan's conversion to the 1999 republican model to his suffering under the rule when he had to "push off," as they would so inelegantly put it, because The Queen had arrived.

If they had consulted Sir David Smith's works, including a paper to The Samuel Griffith Society which is available on the internet, they would have seen that they were relying on their imagination, and not on the facts.

Far from being the application of a robust convention, the Governor-General’s absence from the High Court was the result solely of Mr. Fraser desire to rank next to royalty. 

Malcolm Fraser later decided he should join the push to get rid of The Queen. He even appeared with his former enemy Mr. EG Whitlam in campaigning  in television advertisements for a republic in 1999. 

ACM confidently believe that their joint campaign did in fact attract many votes. These were, we are delighted  to say, mainly  votes for the No case. 

Sir David also points out that when The Queen opened the Commonwealth Games in Brisbane in 1982 the Governor-General, Sir Ninian Stephen, was present and seated next to her, as did the Governor-General of Canada when The Queen opened the Commonwealth Games in Edmonton in 1978.

“So much for Sir Anthony's so-called robust convention, “ observes Sir David. 

Sir David also cites the opening of the new Parliament House in 1988 to demonstrate the absence of any such convention, robust or not. A painting in Parliament House shows The Queen addressing the assembly in the Great Hall with the Governor-General on the dais.

No doubt to the great embarrassment of Sir Anthony Mason, a press photograph at the time is fascinating. For it shows, sitting in the front row, none other than….. Sir Anthony Mason.

And incidentally, I recall that when The Queen first came to Australia in 1954, she was received by Sir William Slim, the Governor-General, together with the Governor, the Prime Minister and the Premier.

 Nor did the Governor-General go into hiding during the tour. Readers may see a photograph of Sir William Slim with The Queen at a Garden Party in Canberra here.

…it's about time republicans based their arguments on fact and not on fantasy….


When republicans make their claims, and especially when they choose to heap personal abuse on constitutional monarchists, they should undertake  some rather elementary research before they make such a monumental and embarrassing error which they made worse by their personal attack on their opponents.

 

 

 

 

 


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