November 24

ACM Appears Before Federal Joint Committee on Republic Referendum

Republic Referendum: ACM appearance before Federal Joint Committee on Republic Referendum meeting at Parliament House Sydney 5 July 1999 Professor David Flint and Mrs Kerry Jones with David Elliott

” It would be the only republic in the world where the President holds office at the whim of the Prime Minister,”

Professor David Flint

Proposed laws: Constitution Alteration (Establishment of Republic) 1999 and Presidential Nominations Committee Bill 1999

CHAIRMAN —Thank you both for coming to talk with the committee today. I understand that you sent us a submission. We had not received it in Parliament House up until Saturday morning, but I believe that you have just given us a copy. Would you like to make a brief opening statement to the committee?

Mrs Jones —The submission was forwarded earlier in response to the draft bills, with a few minor changes to it. We certainly had sent it down to Parliament House, so I am not quite sure why you did not receive it.

CHAIRMAN —That does not necessarily make it simple for this committee.

Mrs Jones —It certainly was sent down separately to the committee on the 29th, but copies are coming for you. In essence, the submission clearly says that the question should include the dismissal. We suggest that the words `appointed for a term of five years but removable by the Prime Minister at any time by a signed notice with immediate effect’ be added following the words `chosen by a two-thirds majority of the members of the Commonwealth parliament’. David Flint will speak to these amendments briefly after I have summarised them.

The reference to the President being head of state is absolutely unnecessary. It is inappropriate. The term is not used in Australian constitutional law. We have explained our views on that. We are concerned that the addition of the Prime Minister and another minister of state to the Federal Executive Council as authorised sources of advice to the President reflects current constitutional practice. Their express inclusion creates a situation where the President may receive conflicting advice of apparently equal validity from different sources. We are also concerned that the President may be denied the traditional rights of the Governor-General, along with the sovereign and her other representatives, to be consulted to advise and to warn, because the President is now bound to act on advice. The reference to the reserve powers appears to make their exercise judiciable in the High Court, and David Flint will speak to that briefly.

Finally, we have grave concerns with the Prime Minister’s unprecedented power to dismiss the President. The bill extends this power even further in ways that were not envisaged by the Convention model giving the Prime Minister a further unprecedented power to dismiss any Acting President. Moreover, the provisions of proposed section 63 may be superseded by an ordinary act of parliament without any reference to the people, which could further increase the power of the Prime Minister. We also say that the Prime Minister should not have the power to dismiss an Acting President, which again was something that was not included in the Convention.

That is a summary of our submission. I say up-front that the ACM will be opposing the change to the republic in whatever way possible. As Chairman of the Government No Case Advertising Committee, the no case committee will be running a substantial advertising campaign in the last month. We agree that the bill submitted to the people should be consistent with the Convention model, as promised by the Prime Minister at the close of the Convention. The bill has gone on further than some of those agreements of the Convention. Finally, within the constraints of the Convention model, the amendments to our Constitution should provide the best republican constitution that can be devised, and clearly it is not doing that at this stage.

Prof. Flint —I will briefly add to that. As Mrs Jones has said, we are opposed to the republican model which emerged from the Convention. However, we took the view that, if this model were to succeed, it ought to at least reflect and go no further than what emerged from the Convention. I say `emerged’ because the model itself, as you would know, failed on the floor of the Convention, but we joined with the republican majority so that it could be put to the people’s referendum. That was a view that the Prime Minister adopted.

But we see it going further than was actually agreed in those respects which are set out in our memorandum—in particular, that it requires the Governor-General, outside of the reserve powers, always to act on advice. We see this as a serious defect, because at the present time the Governor-General and the governors may, in exercising their powers, ensure that what comes to them has been properly presented and has gone through all the requirements of the law. A recent example was when the Governor of this state insisted on a briefing before he was prepared to issue the liquor licences at the showground. We read the act as saying, `The President is now bound to act on advice. The President shall act on the advice of,’ and the names of three bodies are set out. We regard that as denying that discretion that the Governor-General should have.

As Mrs Jones says, we also do not think that it was necessarily part of the Convention model that the reserve powers would be justiciable—that is, reviewable in the High Court. We see that as potentially dragging out any constitutional crisis. In a rerun of 1975, it could drag out a crisis from weeks to months, and we think that is unwise. Further, we say that, in accordance with the Convention model, not only can the President be sacked at any time by the Prime Minister—in other words, he holds office at the whim of the Prime Minister—but the same applies to the whole series of Acting Presidents. We do not think that was the intention even of the Convention model, and we think that that is unwise. Those views are the principal parts of our submission. They were put as good citizens still opposing the model but thinking that at least the model should not go beyond what emerged from the Convention.

CHAIRMAN —Thank you. We appreciate your attitude. We do understand that you are opposed but we appreciate your constructive advice, which is why we are all here. Regardless of our individual views around this table, we have a responsibility to listen to the people of Australia who have something to say about these bills, to make sure that they reasonably reflect the ConCon model and that, if in fact it wins on or about 6 November, the model will work properly.

I am interested in your views on the dismissal procedure. Many others, quite frankly, in their submissions have discussed the dismissal procedures, either in writing or here with us today and last week. Is it a possibility in real life that a Prime Minister would either not appoint a President or sack a President and then continue to go down the list of state Presidents, or whatever they are called—or state Governors if they happen to still be under the Crown—until he exhausts the list and there is no-one to act in the office or until he finds someone who totally agrees with him and becomes a puppet? Do you honestly believe that that is a real life scenario?

Prof. Flint —The purpose of a constitution is to prevent even the unlikely happening. Professor Blainey, when he gave a speech recently, reminded us that—and he was in no way suggesting, as some of the newspapers did say, that we were going to go down the path of the Weimar Republic—had the constitution itself contained sufficient safeguards, the aggregation of power that the chancellor was able to obtain in Germany might have been prevented. Constitutions are about checks on power, and surely one of the things that both the Westminster system and the American system have learned is that there must be checks on power so that you prevent aggregations of absolute power. This would be an unusual constitution in that it would be the only republic in the world where the President holds office at the whim of the Prime Minister.

CHAIRMAN —Professor Flint, I would have thought that our system probably had more checks and balances than any comparable democratic system in the world. When you take the model of an American type Senate, with equal representations for the states, or the constitutional model itself, which gives us states that have definable powers beyond those defined for the Commonwealth, and you add the United States Supreme Court model that we call a High Court and you put the states themselves in as part of that process, with the Senate acting as a brake on power, and then the Governor-General—or, as proposed, a President—I would have thought that the possibility of runaway executive power in Australia was far less than many more prescribed models around the world where dictators have come and gone?

Prof. Flint —I agree with you entirely, but we are speaking about the present Constitution. This is, in effect, a substantially changed Constitution. The Republic Advisory Committee, which Mr Turnbull chaired, reported to Mr Keating that there was an almost universal view that the President should not hold office at the whim of the Prime Minister. This is being presented to us for the federal Constitution and, if it is adopted, it will no doubt be replicated in the states. The Westminster system in a federal structure requires somebody there at the centre—the Crown at the moment—to prevent that accrual of power which results from the dominance of the Prime Minister over the House. Senator Murray, as one of the members of the Senate and a patron of the Australian Republican Movement, said that the danger of this constitution is that it has the potential to give absolute executive power to the Prime Minister. That is what the Constitution, we submit, ought to prevent.

CHAIRMAN —If you two will accept my apologies, I have to go and catch an aircraft. I will turn the chair over to Robert McClelland. I remind colleagues that we commence at 9.30 tomorrow morning in Melbourne.

ACTING CHAIR (Mr McClelland) —In what way is the Prime Minister currently accountable to the Australian people if he or she dismisses the Governor-General?

Prof. Flint —The process of dismissal, which some say is replicated in the model, is not in fact replicated in the model. The process, which was established in the Commonwealth conference in the 1930s, is that there must be informal consultation with the palace and a formal document must go to the palace.

ACTING CHAIR —I am sorry. An informal document must go where?

Prof. Flint —A formal document must go to the palace. It takes time for this to happen. There is a break of time built in, and there are precedents where the Crown has indicated that a proposal would not be accepted. Two indications concerning the appointment of the Governor-General of Ireland were rejected because they were thought to be inappropriate. One was that the Chief Justice be the Governor-General; the other was that there be a committee as Governor-General. A recommendation that the Governor-General be dismissed was mulled over by the then sovereign with a view to at least giving the Governor-General time to withdraw gracefully if he wished and wanting reasons for this action. There is no guarantee that the sovereign will act. There is something built into our situation.

Let us look at a re-run, for example, in 1975. There was a fear, it was said, on the part of Sir John Kerr that Mr Whitlam would move against him. Mr Whitlam describes the proposition that he could instantly remove the Governor-General as preposterous and ludicrous. He said that in The Truth of the Matter . He refers to the removal of the dormant commission that Sir Colin Hannah held as Governor of Queensland. He held a dormant commission to act as administrator of the Commonwealth. Sir Colin publicly criticised the Whitlam government, which was most inappropriate for a person in his position, and he lost his dormant commission. But that process, which was an open-and-shut case for the removal of that dormant commission, took 10 days. There is no resemblance between what is being proposed—that is, that the Prime Minister just scratch his signature to a piece of paper without any notice whatsoever and without any grounds—and what exists at the present time.

ACTING CHAIR —Although, in this day and age, you have to have regard to electronic communication technology, surely, and the instantaneity of that means of communication.

Prof. Flint —It has been stated very definitely that the Queen would not react to a telephone call.

ACTING CHAIR —Yes, but there are facsimile transmissions. There are email transmissions. Surely, these things are much more instantaneous than ships travelling to the home country.

Prof. Flint —In 1975, though, we had those facilities. I think, after that time, that a disc jockey in Quebec phoned the palace and spoke to the Queen, portraying himself as the Prime Minister of Canada. The likelihood of the Queen ever reacting is low. In fact, the private secretary has stated that that would never be entertained.

ACTING CHAIR —A phone call would never be entertained?

Prof. Flint —Yes.

ACTING CHAIR —Nonetheless, the other means of communication still exist.

Prof. Flint —Yes. When the proposition was put to Sir William McKell about what he would have done—you might recall he was the Labor Premier of New South Wales and became Governor-General—he said, `I wouldn’t be terribly worried about that sort of thing happening. The Queen is a very busy woman. My predicament could be told to the palace and there would be obviously a substantial amount of time.’

ACTING CHAIR —When you say that sort of thing, you are not talking about facsimile and email transmission existing in the times of Sir William McKell?

Prof. Flint —No, but a facsimile is still different because a facsimile goes to another person who then has to decide whether she would exercise her reserve powers—which the Canadian premiers, including the Premier of Quebec, have unanimously said they want to hold on to—not only of refusing it but of asking further questions, and whether the Prime Minister would just sign a piece of paper and perhaps even date a blank piece of paper that he had already signed which he had in his pocket—

Ms HALL —My question follows on from what Rob was asking you, and in fact you pre-empted half of it. Can you share with me an occasion where the Queen has not followed the request of a Prime Minister of this country either to appoint a Governor-General or to terminate the services of a Governor-General?

Prof. Flint —No Governor-General’s services have ever been terminated. The only appointment that we are aware of where there was a discussion was in the proposal to appoint Sir Isaac Isaacs but, of course, the King eventually accepted the appointment. His reservation was about not having somebody who was acquainted with, and known by, other Australians. He wanted to put in somebody who was completely strange or new.

Ms HALL —To a large extent your argument is based on the possibility that such and such would happen. Under the current Constitution, you do not have a precedent with which you can argue along those lines.

Prof. Flint —We belong to a Commonwealth of Nations and there are several examples from the Commonwealth.

Ms HALL —But we are talking about Australia and Australia’s system of government here, aren’t we?

Prof. Flint —The point is that the Queen is not bound to act on advice. If, for example, a Prime Minister were behaving in a dictatorial way—as we had in the case of Fiji—the Queen may not act that way, or she may take time. That time is very important. Think back to 1975. Sir John Kerr acted in the morning. Even if Mr Whitlam had decided to send a fax—if he could find a fax, because Sir John said that he stood up and said, `Where’s the phone?’—to Buckingham Palace, it would have arrived after Sir John had withdrawn his commission.

Ms HALL —But you can give me no precedent or occasion where the fears that you are expressing of the possibilities that you are saying could happen have ever happened. You cannot point out to me one occasion where the Queen has not followed a recommendation of the Prime Minister of this country, and now you are saying that this will change. You have not convinced me, I am sorry, because I do not think that you can back up what you are saying.

Prof. Flint —There are several examples in the Commonwealth, and I would also say to you that this will be the only republic in the world where the President can be removed at the whim of the Prime Minister. No other democratic republic in the world has this.

Ms HALL —And I put to you that that can happen now.

Ms JULIE BISHOP —Professor Flint, I appreciate your position in relation to this matter. Could I ask for your comment on a suggestion that Professor Winterton put forward—and, in fact, I think it has been suggested in a couple of the submissions—in relation to the dismissal procedure. Professor Winterton suggested that there be a form of quasi-judicial dismissal whereby reasons are required and there may or may not be a right of reply on behalf of the dismissed President, akin to the dismissal of justices of the High Court. Could you give me your views on that proposal?

Prof. Flint —Certainly. I was looking at Singapore’s republic last week because I had to speak at an Australia-Singapore chamber of commerce. The Singapore constitution is typical in that there have to be grounds, there has to be something akin to a committal—that is to say, some procedure which weighs whether the charges are serious—and there has to be a fair trial. In Singapore it is a trial before five judges chaired by the Chief Justice. Then there has to be a verdict in parliament at a special majority—in Singapore it is a three-quarters majority. So that is the process which the democratic republic normally requires so that the President has some tenure. But, of course, then you have to codify the President’s powers.

Mr DANBY —Are you suggesting that Singapore is a democratic republic?

Prof. Flint —I am suggesting that the Singapore constitution is more democratic than the one which is being put before the Australian people.

Mr CAUSLEY —Professor, my question comes back down to the bill itself. What concerns me in this debate is that this referendum may well be carried in November, yet on one side of the debate we have people who are saying, `We’re so desperate for a republic we’re prepared to ignore the deficiencies,’ and on the other side of the debate you are saying, `We don’t want to even talk about it.’ If this is likely to get up, surely we need to have a model that we can live with; a responsible model that will carry us forward into the next centuries. Why aren’t we discussing the bill and making sure that the bill is effective?

Prof. Flint —We have, in our submission, looked at certain aspects of the bill which we think go even beyond the convention model, so we have tried to be constructive to that extent. On the other hand, we still think this is a lamentable model and should not be carried. If Australia wants to become a republic, there is no need for people to say yes.

Mr CAUSLEY —It may well be carried.

Prof. Flint —It may well be, but—

Mr CAUSLEY —What do we do with it then?

Prof. Flint —I put my faith in the good sense of the Australian people, and they have demonstrated that in previous referenda. But of course one can never be sure. I think it is unfortunate that people in the universities and the media are not subjecting this document to the sort of analysis which can happen—even a tax bill gets analysed to a far greater extent than this, and this is about our Constitution. I find it—

Mr CAUSLEY —I find it frightening, quite frankly.

Prof. Flint —Yes.

Mrs Jones —Professor Flint did mention that when it was finally presented to the Convention—at which I was a delegate—it was actually defeated 79 to 73 on the floor, and the Convention was probably attended, as most of you would know, for a variety of reasons, with three-quarters of the delegates being republican in mind. If there is any indication of how the model will go in a referendum, if the people of Australia do look at this sort of detail that we feel is unworkable—and, as Professor Flint said, the dismissal model has never been tried anywhere in any republic in the world—it should go down. But it was defeated on the floor by a delegation that was substantially republican. It was defeated 79 to 73.

Mr CAUSLEY —But the reality is that both your campaign and the opposing campaign will be on emotion, not fact.

Mrs Jones —We hope it will be on fact, and that is why we are spending so much time analysing the model. It was the model that got pushed through the Convention, and it was accepted by the Prime Minister to go to a referendum. But that does not mean that it is not our duty to point out the many constitutional flaws in the model. We have certainly got available many papers written by Sir Harry Gibbs and many other eminent Australians, as well as by republicans such as Sir Anthony Mason and so on, pointing out these fundamental flaws. I think the dilemma for you is to come up with how you do honour that model when it is such a substantially flawed model.

Mr DANBY —I have got a double-sided question to ask Professor Flint. Given the real constraints of Australian parliamentary democracy, isn’t it a very pessimistic and dismissive view to describe, as you did before, the Prime Minister’s potential very grave step of removing a President, with all the parliamentary implications that would have, as a `mere scratch of a pen’? The other question that follows from that is: if the Queen is not bound to act on advice, are you saying that Australia is not fully independent? Surely the overwhelming evidence is that the Queen would accept the advice of the Prime Minister?

Prof. Flint —My first answer to your last question—that is, about the Queen’s reserve powers—is: when she acts, as the High Court very clearly told us the other week, she acts as Queen of Australia. Similarly, the Canadians: when Mr Trudeau wanted to make the

Governor-General dismissible, the Canadian premiers unanimously, including the Premier of Quebec, said they needed this external arbiter.

The Queen, we would expect, would not exercise her powers mischievously, but if there were a crisis in Australia there is no guarantee that she would do precisely what an Australian Prime Minister, who might well be out of control, would want her to do.

Your other question is essentially saying to me, `Look, we’re going to give the Prime Minister this vast power but, of course, he won’t exercise it; he’ll behave sensibly.’ I would suggest to you, with respect, that we think again about 1975, and we think what the two men in the hot seat did in 1975. The Prime Minister was setting in process ways in which he could rule without supply—something which has not happened since the Stuart kings. There was going to be a rule by credit.

The Leader of the Opposition, instead of waiting for the normal course of elections, was desperate to take power, and both of them were prepared to put the country into a serious constitutional crisis and force the Governor-General to act. They both behaved extraordinarily and not in the way that the founding fathers expected, because this question was raised in the Constitutional Convention. It was said, `Section 58, which allows for the double dissolution, might not be available.’ It was only by chance, it was fortuitous, that it was available in 1975. You could get the 1975 situation again without the Governor-General being able to send the Senate to an election—only being able to, for example, send the House to an election.

Even in the Constitution which we have, which I think is a magnificent document, they thought, `The political players will behave reasonably.’ They did for 75 years and then in 1975, for some reason or other, both of them were prepared to lead this country to the very brink of constitutional chaos.

Ms JULIE BISHOP —Professor Flint, in relation to the reserve powers and the proposed section 59, you have made a couple of suggestions as to how it could be worded in relation to advice—for example, omitting reference to the Prime Minister or the Minister of State. What troubles me is that it was the intention of the Constitutional Convention that the reserve powers remain and the conventions remain non-legally binding—in other words, as the position is now—yet the drafting of that third paragraph of section 59, to me, seems to contradict itself. Others have told me it does not, but perhaps you could consider this: is it contradictory to require the President to act constitutionally with regard to a reserve power in accordance with the conventions, but then have conventions that are in fact not legally binding?

Prof. Flint —My reading of what has been put before us is that the conventions will be justiciable. That is how we read new section 59.

Ms JULIE BISHOP —Which was not the intention of the ConCon, because I recall—I do not know whether it ended up in the communique—a great deal of discussion about them not having the force of law.

Prof. Flint —Yes, and they were to be preserved. We think this present drafting does in fact make them justiciable, which some people—

Ms JULIE BISHOP —Think is wonderful and others are horrified by the thought.

Prof. Flint —Yes, I think one of my colleagues in the room thinks that justiciability is a good thing—to have judicial review is a good thing. I think that only drags it out. The case study to look at is Pakistan, where the President’s powers were found to be justiciable. Instead of having a discrete constitutional crisis, you drag it out for months. On one occasion the Supreme Court of Pakistan actually reversed the President’s decision, and that I found is an astounding proposition.

Ms JULIE BISHOP —I think it would be fair to say then that section 59 as it is currently drafted is open to interpretation as to whether or not it makes the conventions justiciable.

Prof. Flint —Yes, we read it that way.

Ms JULIE BISHOP —But obviously the Attorney-General does not.

Senator PAYNE —It argued that it establishes the situation as it is now.

Prof. Flint —We discussed it among a group of lawyers, including a judge, and our view is that it is justiciable. In the ultimate analysis, it means it could go to the High Court, which would determine whether it is justiciable or not.

Senator PAYNE —Three lawyers and four opinions, Professor Flint?

Ms JULIE BISHOP —This is a concern because 5.17 of the explanatory memorandum says:

It is not intended to make justiciable decisions of the President in relation to the exercise of the reserve that would not have been justiciable if made by the Governor-General.

So that clearly is the intention, but it is very much open to interpretation, as it currently stands.

Prof. Flint —That is how we read it. I do not think we did that to put a level of interpretation on it; it is how we read the section.

Ms JULIE BISHOP —I think a number of people have read it that way, so it leaves it open.

Senator PAYNE —Professor Flint, in relation to proposed section 70A `continuation of prerogative’, I wonder whether you have turned your attention to that and whether you have a view on its adequacy in terms of the transitional processes.

Prof. Flint —I cannot put my finger on it, but I have read it. We found no difficulty with that continuation. We expressed a reservation of the definition of `states’, which we thought would preclude the unlikely event of New Zealand deciding it wished to join the Commonwealth, and joining without having to change the Constitution.

Mr CAUSLEY —That is fairly unlikely.

Senator ABETZ —Professor Flint and Kerry Jones, as I understand it, if all your suggestions were to be adopted by this committee and then reflected in the legislation, you would still be arguing the `no’ case.

Mrs Jones —Absolutely.

Senator ABETZ —I suppose it might be a cynical mind at work, but that then raises the question: do you think your task of arguing the `no’ case would be enhanced or weakened by the adoption of the suggestions that you are putting to us?

Mrs Jones —In our minds, the suggestions are only on issues that go beyond what was decided at the Constitutional Convention. We are really here to say we will stick to what was agreed to within those terms. These issues go beyond it. But the major issue involved is the question that will be asked on the ballot paper.

Senator ABETZ —That is the next question I want to get to.

Mrs Jones —I am sure you have seen from the many submissions from republicans as well as antirepublicans that one of the critical questions is the dismissal. That is why we argue so strongly that the dismissal of the President by the Prime Minister, at any time without notice and with immediate effect, should be pointed out as being substantially different from the way our current constitutional arrangements work, and it should be added to the question.

Senator ABETZ —I suppose I did smile to myself when I saw the republican proposal, with the Australian Republican Movement desperately not wanting to mention the terms `republic’ or `President’ in the question. Undoubtedly, that is for purposes that they would perceive would make it less likely to be carried with the populace at large. I cannot help think that reference to removal by the Prime Minister at any time by a signed notice with immediate effect is, from your quarters, designed to effect a certain outcome. As the republicans would argue, why not refer to the fact that there would be a nomination committee—why shouldn’t that be included in the question?—or the fact that the Prime Minister and Leader of the Opposition would have to move and second the proposal, et cetera?

Prof. Flint —The nomination process, we would argue, is pointless. It is purely cosmetic, and it was designed to attract the support of those who wish to have a popular election for a President. It is meaningless because the Prime Minister can ignore it. If there were a wish to insert the provision that there was a need for both the Prime Minister and the Leader of the Opposition to move and second the motion, we would have no difficulty with that. The key to all this, the very core of this model, we believe, is that it attacks; that it is a knife at the

very concept of checks and balances. It goes to the very heart of the Westminster system. It goes to all we have learnt in 300 years in both the Westminster countries and the United States about checks and balances on par. We think that that is the most important thing to go in.

Yes, I am sure it would help our case, but we could have equally said at the end of the convention, `You’ve chosen a model which helps our case.’ Because it is such an appalling model, it was very hard to believe that the Australian people, properly informed, could possibly bring themselves to vote for such a model. But we shall see.

Senator ABETZ —It is a pity you did not support the McGarvie model, but that is another issue. Thank you.

ACTING CHAIR —Professor Flint, in terms of your previous position that the Constitution should address the unlikely, is it not the case now, under our current Constitution, that under section 59, if the monarch became mentally unstable—he or she, as the case may be—that they could actually disallow any law that had been passed within the past 12 months? What check or balance would exist against such a decision of the monarch?

Prof. Flint —The present system is not just the written Constitution; it is all those conventions by which we have agreed to have been governed accumulated over a long period of experience.

ACTING CHAIR —But do you say those conventions, unwritten, would override the terms of section 59 of the Constitution?

Prof. Flint —The conventions, which as you see in the High Court judgment have led to Australia being independent. There has been no statute which has said that the Crown will suddenly become divisible into several Crowns. That followed the Royal Titles Act in 1953. It followed well after a separate Crown had emerged. What happened in the Balfour Declaration in the Commonwealth conferences was part of that evolving convention. We know that, were a sovereign to move away from the role of a constitutional monarch, as we saw in 1936, when the Australian Prime Minister was the principal mover in persuading the government—

ACTING CHAIR —Do you say that, as a result of convention, section 59 has become redundant or anachronistic?

Prof. Flint —I suppose it would always be open to an Australian government where there was an erroneous piece of legislation to advise the sovereign to use section 59. It seems most unlikely, but if—

ACTING CHAIR —Coming back to my question, do you say that section 59 has become redundant or anachronistic?

Prof. Flint —Section 59 seems to be rather strange in the Constitution today. If it were to be used, it would not be used for the original purpose. But that would apply to other provisions in the Constitution. Your question was about a sovereign losing his or her mind. I

am saying that section 59 could be used by a sovereign acting on the advice of the Australian minister.

ACTING CHAIR —And it could also be used by a sovereign who had lost his or her mind?

Prof. Flint —It would not be used for long, because the conventions would ensure that that sovereign was declared to be incompetent.

ACTING CHAIR —Who would have that power to declare the sovereign incompetent?

Prof. Flint —The Statute of Westminster gives a clue there in saying that the changes in the succession are matters of all of the dominion and British parliaments. That would mean all of the realms would have to agree on what measures to take.

ACTING CHAIR —And if they did not, we were stuck with the decision by the person who had lost their mind.

Prof. Flint —I would rather have that, than having the President holding office at the whim of the Prime Minister.

Mrs Jones —Absolutely.

ACTING CHAIR —It certainly would not be anything on which the Australian people could guarantee an outcome.

Prof. Flint —I am sure we could guarantee an outcome because we saw that in 1936. The Crown acts on advice except where the Crown is validly using those powers.

ACTING CHAIR —In that sense, doesn’t the monarch, the Queen of Australia, have greater powers over the Australian parliament than the Queen of England does over the House of Commons, in the sense that the conventions are not codified in the United Kingdom? However, sections such as sections 58, 59 and 60 give specific powers to the monarch which are not so codified in the United Kingdom.

Prof. Flint —The powers of the Queen of the United Kingdom are different. There is no power of disallowance, for example, because the Constitution, such as it is in the United Kingdom, does not give that power, and case law specifically denies any power. Neither did the Stuart kings: no British king or queen has had a power to disallow. But we have one in our Constitution, which we can change. There is no reason why the members of parliament could not put in, if you wished, another referendum on 6 November if that is your wish.

ACTING CHAIR —Nonetheless, is it the case that the Queen of Australia has greater power over the Australian parliament by virtue of the Constitution, a written document, than the Queen of England does over the United Kingdom parliament?

Prof. Flint —No, she does not, because most of her powers, vis-a-vis the Australian parliament, are not delegated to; they are, by the Constitution, invested directly in the Governor-General. She has very few powers in relation to the Australian parliament.

ACTING CHAIR —What about sections 58, 59, 60 and specifically 59—the power to disallow any law made within the past 12 months? That is certainly a power which the Queen of England would not have over the United Kingdom parliament, isn’t it?

Prof. Flint —True. It is a power which has never been exercised and which can be removed. If the parliament so wished they could add it to the referendum. It may well be something that this committee might wish to recommend—that you remove that.

ACTING CHAIR —Thanks very much for your time and for coming along this afternoon.

Prof. Flint —Thank you.

Resolved (on motion by Ms Julie Bishop) :

That this committee authorises publication of the evidence given before it at public hearing this day.

Committee adjourned at 4.48 p.m.Previous Fragment


1999 Referendum

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