August 22

Our Constitutional Heritage Being Slowly Worn Away


The Order of Australia Association 21 August 2009

Four Seasons Hotel, Sydney

Our Australian Heritage: Is it being slowly worn away?

Australia’s constitutional heritage is the result of a slow evolution of the Westminster model into our indissoluble Federal Commonwealth under the Crown. As Burke said, society is not just a partnership between the living, it is a partnership between those living, those who have gone before us, and those yet to be born.

To understand the present and plan for the future, we have to know the past.

But just as the beautiful Queen Victoria Building (pictured above), which Pierre Cardin described as “the world’s most beautiful shopping centre”, was once to be demolished by those who did not appreciate its value, so too many of Australia’s politicians  are gradually whittling away at our past, at our heritage.

What is the answer?  David Flint told about 200 members of The Order of Australia Association NSW Branch Annual Dinner on 21 August 2009 that we must learn to value our heritage.  That is why ACM has developed the latest version of its education project, The Crowned Republic.

This is an attempt, without government assistance, to ensure that Australians, and especially the young and those new to this country, can better understand and appreciate the underlying system which assures our freedom and our ability to achieve.

In moving the vote of thanks, Sir Laurence Whistler Street AC, KCMG, QC, the former Chief Justice of the Supreme Court of New South Wales and Lieutenant Governor of the State, reminded the assembly of the work undertaken by the late Governor-General and former NSW Chief Justice, Sir John Kerr, in preventing the demolition of that jewel in the heart of Sydney, the old Supreme Court building designed by the celebrated colonial architect Francis Greenway. This was another example of the successful defence of our architectural heritage.]

Ladies and Gentlemen,

May I offer you, members of the Order of Australia Association my congratulations on the awards you have received. It is indeed right and proper that, through the Crown, a grateful nation has recognized your many contributions.

I thank you Mr Chairman for your kind introduction. I must say, however, that my life has been perfectly normal and unexceptional.

I am in brief a modest man. In that context, I do recall the observation of Sir Winston Churchill concerning his rival and successor, Mr Clement Attlee.

“Mr Atlee,”  Sir Winston said,” is a modest man – with much to be modest about.”

I fit very much the old saying, attributed to Churchill and to Shaw – among others: “ A man who is not a socialist at 20 has no heart; a man who is a socialist at thirty has no brain.”

I believe it was first used by the French statesman, Georges Clemenceau who in turn  took it from that extraordinarily gifted Prime Minister of King Louis Philippe, François Guizot, who once said  “ A man who is not a republican at 20 has no heart; a man who is a republican at 30 has no brain.”

(“Ne pas être un républicain à vingt est preuve de veulent du coeur; être un à trente est preuve de veulent de la tête”)

I must hasten to say I never used that in any of the referendum debates against Malcolm Turnbull and his colleagues.

Mr Turnbull was not so kind to me. In his diary of the referendum campaign “Fighting for the Republic” he says I speak with an “affected pseudo British accent”,( where would he have got that from) that  I am not a “constitutional lawyer at all” and he predicts my book for the 1999 referendum  campaign, The Cane Toad Republic, will be remaindered.

I must admit to a certain degree of schadenfreude when, some months after Mr Turnbull’s book appeared, a friend phoned me to tell me he had seen it on sale at the University Cooperative – at a substantial discount.

Incidentally, in his diary, four months before the referendum, Mr Turnbull made a startling admission. The entry reads:  “We have Buckley’s chance of winning.” Why? “The problem is nobody is interested.”   What a pity he didn’t tell us; we could have saved all that trouble and money.

His book was called “Fighting for the republic.” A colleague who will remain anonymous because he may be seeking preselection, said cruelly that  it should be called “Whingeing for the republic”


Now I must say my speech is not about Malcolm Turnbull, but it was inspired by what is now known as “Utegate,” when relying on an email subsequently found to be false, Mr Turnbull called for the resignation of the Prime Minister Mr Rudd. We may dismiss this as political manoeuvring – that at least seems to be the view among members of the public.

I think Laurie Oakes was right (Daily Telegraph 8 August) when he said that government politicians could not claim to have more noble sentiments than those exhibited by Opposition leader Malcolm Turnbull in the affair.

The government politicians would probably have well been more sceptical, and they could have been better tacticians. But as Laurie Oakes says, they happily accepted leaked documents from public servants and used them to embarrass the previous Howard government.

But the sole exception of genuine whistleblowing in relation to criminal activity which cannot otherwise be revealed, public servants should never leak. This is clearly not only is a serious breach of their duty; it compromises the very independence of the public service.

In fact, the emergence of a non-partisan public or civil service under the Westminster coincided with the withdrawal of the Crown from political activity and the emergence of the constitutional monarchy as we know it. The great Walter Bagehot advised the Canadians in 1867, that to assure popular rule, there were only two constitutional models available for them: the British or the American constitutional model.

Not only did he think a non- partisan public service did not prevail in the US, he believed it was impossible.   But under the Westminster system, the loyalty of the public servant is to the non-political Crown and not to the politicians. This enforces the obligation of the public servant to act within and according to law, and to provide advice not influenced by and indifferent to political considerations.

If the appalling “utegate” affair demonstrated anything, it was that the ideal should remain of an independent public service. This complements what is called responsible government under the Westminster system.

Unlike an American president, our prime minister is untenured and at all times dependent on the confidence of the lower house. This allows for one of the jewels of our system, that it allows an easy and peaceful transfer of political power. A leading example of this difference between the American system and Westminster came after the failed Bay of Pigs invasion of Cuba in 1961.

President Kennedy, who agreed he was responsible for the failed intervention, told the CIA deputy head:

“If this were the UK, you as the civil servant would continue and I would resign. But it’s not. In the United States, I continue and you resign.”So let us return to the “utegate” affair. I wonder what our great leaders from the past would have done in similar circumstances.  What would former prime ministers, particularly our greatest prime ministers have done?

Graham Freudenberg, the historian and former speechwriter to Gough Whitlam, reminded Mr Oakes of the case of C.J. Winkler, a Labor supporter who became a federal public servant under the first Menzies government and the brief Fadden government that followed it in 1941. C.J Winkler handed over to then opposition leader John Curtin confidential official documents apparently showing that a cabinet minister had made payments from a secret fund to a trade union official.

John Curtin had grave misgivings about using such material. According to his biographer, Lloyd Ross, he showed the documents to Prime Minister RG Menzies and Treasurer Arthur Fadden at the earliest opportunity.

John  Curtin later told LLoyd Ross:

“No matter has given me so much concern, as it affects the public administration and the loyalty of persons in the service of the Crown, and I had to choose what my highest duty to my country was.”

Laurie Oakes says Malcolm Turnbull “did not see past the politics”. He gave no more thought to the principle of “the loyalty of persons in the service of the Crown” than Rudd would have done had the situation been reversed.

We have over the years seen a serious diminution of the independence of the higher echelons of the public service.

We have over the years seen a serious diminution of the independence of the higher echelons of the public service. Some say this began when Mr Whitlam introduced the office of the ministerial “staffer”, a party political advisor who is paid by the taxpayer. The number of these has increased substantially. They do not give disinterested advice in the public interest, as public servants do: they act in the narrow party political interest of their minister or opposition shadow minister.

The turning point was when the Hawke government removed the tenure of the heads and took control of appointments. When Mr Howard came to office, like an American president he appointed new heads of several departments. Mr Rudd waited until August 2009 to do the same.

John Curtin would have been horrified. He would not have accepted the gift of a utility, nor would businessmen pay a small fortune to meet his ministers, nor did he expect a lucrative lobbyist role after early retirement on a generous superannuation.

John Curtin died in office, having led the country through war. He gave his life for the nation.

There is a fundamental difference between today’s politicians and statesmen of the calibre of John Curtin. This was that he honoured and respected our institutions and our heritage. He had a deep understanding of them.

He understood that the independence of the public service can only be achieved if they owe their allegiance not to the politicians, but to the Crown and therefore all of the people.

At the time when the noble, humble and incorruptible John Curtin was in Parliament, the leaders of all the parties and the great majority of members and senators understood and supported the respect and acceptance of our institutions.

It is sad that only a minority of politicians do so today. The consequences are apparent.

Our Heritage

This brings me to our heritage. When I was a boy, two major newspapers and the Lord Mayor campaigned to pull down what they described as a “Victorian wedding cake.”  This was that wonderful edifice next to the Town Hall, and since restored by a Malaysian company.  It was the Queen Victoria Building.  They wanted to replace it with civic square or a car park. The campaign was strong but good sense eventually prevailed.  Over the next few years, much of Sydney disappeared.  Melbourne, a gracious and planned Victorian city has also lost too much of her past.

There is an even greater heritage than our buildings. It is in the way we do things. And that affects us in our daily lives. Why is it that we are among one of the world’s six or seven oldest continuing democracies? Why was it that in 2007, power passes peacefully form Mr Howard who conceded defeat to Mr Rudd?  There were no demonstrations in the streets, no cars with flags circling the cities with horns blaring, no violence and burnt cars as there was in the last presidential election in that most civilised city, Paris.

Why are we in the top ten countries in the UN Human Development Index which measures health, wealth and education? How were we able to contribute so much to the freedom of other countries, one of the few which fought from the beginning to the end in both world wars, and who lost more than most in the first World War?  How are we able to be, on a per capita basis, the world’s leading sporting nation? How are we one of the leading Nobel Prize-winning countries, again in per capita terms?

Why is this so?  It is in the context in which we live, in the way we govern ourselves. It is our constitutional system, in the broadest of senses. It is this system which gives people the freedom and the means to fulfil their lives.

What is our constitutional system?  A constitution was described succinctly and eloquently by Bolingbroke as “that assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed to certain fixed objects of public good, that compose the general system, according to which the community hath agreed to be governed”.

Without understanding the past we cannot understand the present, and we are unarmed in relation to the future.

Life is a continuum. Edmund Burke put it well when he said: “ Society is …a partnership not only between those who are living, but between those who are living, those who are dead, and those yet to be born.”

Our constitutional system is not  something recent, and although the federal constitution took effect on 1 January 1901, it goes back through the inauspicious foundation of the penal colony not far from here in 1788, through that golden thread which takes us back to the Glorious Revolution of 1688 – the most important beneficial event in the world in the last five half millenium – and back to the Magna Carta of 1215.

Society is indeed a partnership between the living, those who have gone before us and those yet to be born.

There are two features of that foundation which all Australians should be aware of. First, it ensured this would be the only continent not to know slavery. This was because our founders, Governor Phillip and Lord Sydney were irrevocably opposed to it. “In a new country, there will be no slavery and hence no slaves.”  (Phillip also ordered that Aborigines be treated well, and indicated that the murder of an Aborigine would be punished by hanging.)

The second point is that even although it was a penal colony, it was a colony under the rule of law. It was not, as Robert Hughes has wrongly informed the world, a gulag.

Lord Sydney, whom too many glibly dismiss as being of no consequence, took a decision which would have a fundamental effect on the colony.  Instead of just establishing it as a military prison, he provided for a civil administration, with courts of law.  Just consider one example.  An early civil action brought by convicts against a ship captain for theft was defended on the ground that at common law felons could not sue.  The court required the captain to prove this, which was, of course, impossible since the records were in England.  Can Mr Hughes give us a similar example of litigation by prisoners in a Soviet gulag?

Then within one generation of the founding of the penal colony, there was an extraordinary development.  This was the grant by Great Britain to the Australian colonies, in the middle of the nineteenth century and initiated before the Eureka Stockade, the full panoply of parliamentary self-government. No other colonial power did this to her colonies. Why? Because they could not. The other European powers, with the exception of the Dutch, did not have this concept at home. And the Dutch showed no interest in granting self-government to their colonies. With British encouragement, we next decided on federation.

It was federation with two unique features. It was the first and only federation of a whole continent. And it was achieved without war, rebellion, deaths, or indeed any violence. So it was, in world history,  a unique and extraordinary event.

As Founding Fathers Sir John Quick and Sir Robert Garren said:

“Never before have a group of self-governing, practically independent communities, without external pressure or foreign complications of any kind, deliberately chosen of their own free will to put aside their provincial jealousies and come together as one people, from a simple intellectual and sentimental conviction of the folly of disunion and the advantages of nationhood.

“The States of America, of Switzerland, of Germany, were drawn together under the shadows of war. Even the Canadian provinces were forced to unite by the neighbourhood of a great foreign power. But the Australian Commonwealth, the fifth great Federation of the world, came into voluntary being through a deep conviction of national unity.

“We may well be proud of the statesmen who constructed a Constitution which whatever may be its faults and its shortcomings has proved acceptable to a large majority of the people of five great communities scattered over a continent; and proud of a people who, without the compulsion of war or the fear of conquest, have succeeded in agreeing upon the terms of a binding and indissoluble Social Compact.”

A comparison

A comparison with another similar country demonstrates the extraordinary success of the Australian Federation. In 1901, Australia had one of the highest incomes per head in the world, an honour it shared with another former settled colony, Argentina.

We had much in common. Both were countries of European settlement, both supplanting an indigenous population, although Argentina’s was treated much more harshly. Both attracted large scale immigration, both imported much of their essentially Judaeo-Christian culture and their European language.

Both were developed with substantial British investment, and both were rivals for shares in the lucrative British meat market. But our histories since then could not have been more different.

Australia remains one of the world’s oldest continuing democracies —Argentina has alternated between a symbolic democracy behind which a wealthy plutocracy ruled, and bouts of dictatorship, usually military.

The last resulted in living memory in the “disappearance” — the murder — of thousands of Argentinians, the precise number of which is still unknown. The economy has undergone a series of crises. The legal system is discredited and, unlike Australia, Argentina has contributed little to the worldwide struggle for freedom and democracy, certainly nothing like Australia.

More Australians died fighting in the First World War than any other non-European power, even the US! We were one of the very few who fought from the very beginning to the end of the Second World War. Argentina was a neutral, at least for most of the duration, of both. Today the Argentinian economy is ravaged, the people poor. Australia, in Purchasing Power Parity terms (PPP), is amongst the world’s tenth richest

Now the Argentinian people are in no way inferior to the Australians — just as hard-working, as honest and as brave.

What is wrong? The difference is in the underlying institutions and values of the two countries. While both began with the benefits of a Judaeo-Christian culture and an advanced European language,

Australia from its beginnings — even as a penal colony — enjoyed both the rule of law and the central role of an institution above politics but under the law, the Crown. It was inevitable that self-government under the Westminster system would soon follow.

That was not at all inevitable for Argentina. Why? Because the colonial power, Spain, did not herself enjoy these benefits, and therefore could not give them to her colonies.

While Argentina had to fight for her independence, Australia was given hers. The institutions we have — democracy, the rule of law, parliament, responsible government, the Westminster system, an independent judiciary and an institutional heart beyond political capture, namely the Crown — are the foundations on which our country is governed peacefully, democratically and effectively. While those institutions have all been adapted and Australianised, they still allow us to withstand the enormous stresses that are inevitable in the life of a nation.

That is how we have played such an extraordinary role in the world’s conflicts, the last being the liberation of East Timor.

That is how we maintained our democracy both under the cold winds of world economic crises, especially the Great Depression, and during those two terrible world wars.

On the ABC Foreign Correspondent programme broadcast in April 2002 about the Argentinian crisis of 2001-2002, members of an Argentinian family indicated they wanted, desperately, to emigrate to Australia or Canada. They said that 80% of their friends and relatives wanted to leave too.

A former minister in the Government of President Carlos Saul Menem said that Australian and Argentina are similar countries, but with one important difference. That important difference was:

“Australia has British institutions. If Argentina had such strong institutions she would be like Australia in ten or twenty years.”

Australia does indeed have that rare asset in the world, strong and stable institutions, as well as the values that go with them, and which underscore them.

The lesson

The lesson is not so much to find a perfect government, although we should, of course, keep those in office who demonstrate prudence and competence in the nation’s affairs.

Good governance is elusive. From the Revolution to the present constitution, that most civilised country, France, has experimented with a revolutionary regime, two empires, three monarchies, a fascist regime, and five republics. Of the republics, two were attempts to copy the Westminster system, one was American style executive presidency and the latest is an attempt to mix the two. The Fifth Republic almost collapsed in 2002, as the Fourth had in 1958. The choice in the second round presidential elections President in 2002 was between Jacques Chirac and nationalist and anti-immigrant Jean Marie Le Pen. A popular slogan at the time was “ “Votez pour l’escroc et pas le facho”  (Vote for the crook, and not the facist.)

What do we want most in government? Thomas Babbington Macaulay put it succinctly as an “auspicious union of freedom and power”  It requires stable government, but one where there are checks and balances against the abuse of power. Montesquieu proclaimed that this had been first and best achieved in England through the separation of powers.  Acton explained the reason for the separation of powers in his timeless warning that “power tends to corrupt, and absolute power corrupts absolutely. “

Now you might think that all this is easy to achieve, that it is easy to write a constitution. It is indeed easy, very easy, to write a constitution. The difficult thing is to design one which works and which lasts. You can count those on your fingers.

Good governance is achieved through trial and error and not through the mind and writings of one man, however brilliant. The result can be imperfect, it can be untidy but above all, it works.   This reminds me of the celebrated comment from an énarque, a graduate of an elite French School of National Administration when some or other Anglo Saxon system was being discussed: “Well, it may work in practice, but does it work in theory?” (Ca marche en pratique, mais en theorie … ?) (Sydney Morning Herald, 31 October 2002). Rather, the lesson is to maintain, and not recklessly undermine, a constitutional system which has been shown to work and work well over an extended period of time. And there certainly are not many of those in the world.

Do we Australians appreciate what we have? To keep your heritage you have to understand the value of what you have. The Lord Mayor of Sydney in 1959 and the Sydney Daily Mirror did not understand the value of the Queen Victoria Building. The “utegate” affair demonstrates that today’s politicians do not on the whole value an independent public service, something central to the Westminster system.

According to a 1988 Constitutional Commission survey, 50% of respondents from the general public were not even sure Australia had a constitution and 82% were unaware of its contents.

In response to this substantial programmes in civics education have since been developed nationally, at great expense. Has that worked?  Sadly it has not.

In a 2007 official survey, Year 10 students were asked the elementary question, “What is the Australian Constitution?”

They were given four possible answers:

  • the rules about how the major Australian political parties are run;
  • the policies of the Australian federal government;
  • the framework for the way Australia is governed; or
  • all the laws that Australian citizens must obey.  Only 34 per cent identified the correct answer. This is, of course, the framework for the way Australia is governed. That is one in three.
  • You can be sure that if two out of three students do not even know what the constitution is, they are unlikely to appreciate the fact that we have a special heritage.

The Consequences 

It is not only in the diminution of the independence of the public service that we see a decline in the respect and application of our heritage, and a consequent decline in the standards of government.

The core functions of government- I mean the totality of all our governments- are

  • First the defence of the realm,
  • Second the soundness of the currency and
  • Third, the provision of justice.

If governments do not attend to their core functions, why do they try to be involved in so much, in areas which really have little to do with government?

Just take one core function, the provision of justice. What is the situation in relation to the civil courts? It has been said that the courts of justice are open to all. Just like the Ritz Hotel. The fact is, as former justice Michael Kirby indicated recently, litigation is, except for those legally aided, priced far beyond the finances of anyone except the wealthiest.

The criminal justice system is equally deficient. When I was in my youth, to put grilles on your windows, and double lock your doors would be treated as indicative of some sort of paranoia. Now it is perfectly normal. The recent attacks on foreign students may in some ways reflect the decline of the elementary service government should provide, which is the freedom to walk about our streets without fear of attack, and that our homes indeed be protected from criminal incursions.

Margaret Cunneen SC is a Senior Crown Prosecutor in New South Wales. She has appeared for the prosecution in a number of highly publicised cases brought against gang rapists and paedophiles.

In 2005, in the course of a public lecture, she asked whether public confidence in the courts was being eroded by the perception that the pendulum has swung rather too far in the direction of the protection of the rights of the accused person.

She was the subject of complaints by some prominent lawyers, and she failed to gain the status of Senior Counsel for some years. There is, of course, something seriously wrong our criminal justice system. The public sense this. The solution I believe lies essentially with our politicians.

The reason

What is the reason for this decline?  There are probably more than one. But central to this is the weakening of an important principle of parliamentary democracy, that is, representative democracy.

This was best expressed by Edmund Burke who famously said: “Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.”

The political parties have neutralised this principle. I do not say political parties are a bad thing – they are good and in any event unavoidable.

What is not in the public interest is what Lenin and the Bolsheviks called democratic centralism.  This means that once a decision is taken by a party organ it is binding.  From 1894, the Labor Party adopted something similar, the so-called caucus pledge.

Unlike, say, British Labour MP’s, Australian Labor MP’s are bound to all vote the way caucus decides. In recent years a convention seems to have arisen in the Liberal Party that you should not cross the floor. This is exacerbated by the media, which delights in painting debate and independence within a political party as a show of weakness, as indicating the party is not ready for government. If the party bosses think crossing the floor is the equivalent of committing a major crime, what would they make of changing your party allegiance?

At the same time the media, or many in the media, too readily forget their duty. But the reason why the media are accorded considerable freedom is because of this duty. As The Times declared in 1851, “The first duty of the press is to obtain the earliest and most correct intelligence of the events of the time, and instantly, by disclosing them, to make them the common property of the nation. “

Associated with this is a duty to make the reporting of the new clearly distinguishable from comment. As the great editor of the Manchester Guardian CP Scott declared “comment is free, but facts are sacred”.  Today we see and read too much news which falls into the category of campaign journalism. Too often, rather than reporting, the media wish to be players in the political game.

A solution?

What is the solution?  We must ensure as far as we can that Australians- especially the young and the new to our land – are well informed.  We must be active, active in making our views known. And to an extent unknown since the Greek city-states where every free man participated directly in government, technology is feeing us from the oligopoly of the media and the discipline of the parties.

But technology alone is not enough; we must be informed and we must ensure our children are.  That is why I and two young colleagues, Jai Martinkovits and Ed Copeman, are engaged in The Crowned Republic project which is an attempt, without government assistance, to ensure that Australians, and especially the young and those new to this country, can better understand and appreciate the underlying system which assures our freedom and our ability to achieve.

May I recall once again of Burke’s wise advice, that society is indeed a partnership between the living, those who have gone before us and those yet to be born.  To understand the present and plan the future, we have to know the past.

And finally let me congratulate you once again for your many contributions to the nation, contributions which have been recognized by the Crown and for the nation in the Order of Australia.


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