August 20

The Australian Constitution


The Crown is by far Australia’s oldest institution. With the rule of law and the English language, it was with us in 1788. Parliament, responsible government under the Westminster system, and democracy itself inevitably followed. All are inherited, yet all have been adapted and made distinctly Australian. Dr Eugene Forsey, the distinguished Canadian constitutional authority points out that in Canada a republic could not be ‘more Canadian’. The monarchy is part and parcel of the Canadian tradition. It is not something alien. It is ‘bone of our bone, flesh of our flesh’. No part of Canada has ever been republic. It is a republic which would be alien.

In the current Australian constitutional debate it is argued that the Crown, being merely symbolic, can be easily removed from our constitutional system. A dab of ‘tippex’ will do. White out ‘Queen’ and ‘Governor-General’ and insert ‘President’ (Even that is wrong. It would be more accurate to white out ‘Queen’ and insert the appropriate politicians’ titles.)

The premise on which this assumption is made is wrong. As Labor leader Dr H V Evatt put it:-

‘It is a profound mistake to regard the royal functions as merely ceremonial or formal in character.’ (Hansard, House of Representatives, 15 February 1954)

Even admitting the structural centrality of the Crown in the Australian Westminster system, is it inappropriate to argue that it should continue when immigrants now come from all continents? Forsey deals with the identical question of how those Canadians of non-British descent can claim that the monarchy is ‘flesh of their flesh’. It is all very well for those of British descent. But what about the French Canadians? What about the people of other origins who have come since, from all over the world. Surely the monarchy is not part of their Canada? ‘Yes, it is’ he says. ‘It is clear that British Canadians got their ideas of constitutional government from Britain. But where did the French Canadians get their ideas? From France? From Rome? From the United States? From the Laurentian Shield or the Aurora Borealis or the waters of the St. Lawrence or the Saguenay, or their own inner consciousness, or subconsciousness? No. Just as plainly, as definitely and as unmistakably as the British Canadians, they got their ideas of constitutional government from Britain; just as plainly, as definitely and as unmistakably as they got their Civil Law from France’.

Of course the Crown has a British connotation. But it is not the connotation of an English woman. Rather, it is the connotation of a British system. A system of government, developed in Britain and exported from Britain, which the constitutionalist seeks to preserve. And it is from this system that virtually all Australians draw their conception of democratic, parliamentary government. With the exception of those few advocating an executive presidency, this continues to be the source of the dominant political theory in Australia. Thus the Crown is as much a fundamental Australian institution as the Canadian Crown is Canadian.

Forsey points out that in the working out and development of their monarchical constitution, French Canadians and ‘other’, non-British, non-French, Canadians have taken a distinguished part. So in Australia, the australianising of the Crown has been undertaken by Australians, regardless of origin. Of course this generation and future generations may well see the need for constitutional reform. Reform should be enacted, carefully, and for the right reason. Not because some part of our constitution or indeed our flag is alleged by some minority to be ‘foreign’ or ‘un-Australian’ merely because it has been imported.

To return to our initial point. The Crown is central to our constitutional system. So thoughtful observers, for example the eminent constitutional lawyer, Professor Patrick Lane, the republican Professor Donald Horne, and the political scientist Professor Graham Maddox, all warn against ill-considered attempts to remove the Crown by simply amending our constitution. All agree that a new constitution would be necessary. In effect, the proposal Australians will vote on in November 1999 is a new Constitution. It removes the Crown, but puts nothing in its place. Power will be transferred to the politicians, especially the Prime Minister. Not the people. All that will be left will be rule by a political oligarchy.

American constitutionalists, Professor Scott Mainwaring and Professor Matthew Soberg Shugart observe that a strong correlation between a British colonial heritage and democracy is widely recognised. Nevertheless it is of course possible for a former British colony to remove the Crown and to remain a democracy. It needs great care to achieve this. The Americans did. They were fortunate, as Paul Johnson says, that they were guided by ‘one of the most remarkable group of men in history – sensible, broadminded courageous, unusually well educated, gifted in a variety of ways, mature and long sighted, sometimes lit by flashes of genius.’

The thirteen American colonies were, before independence, the freest and most democratically governed colonies the world had ever seen. This is not the place to discuss the reasons for their revolt. Suffice to say that it was not only about ‘taxation without representation’, but also less worthy matters relating to the indigenous Americans and slavery. But the Americans managed to remove the Crown but retain democracy. How? Because they understood the principle that Lord Acton was to enunciate:

‘Power tends to corrupt, and absolute power corrupts absolutely’

So they devised a separation of powers as complete as could be achieved. They knew of the danger of making the President beholden to Congress for his election, and worse, his re-election. Alexander Hamilton wrote that any involvement by Congress would give the election ‘a sinister bias’. So they established a directly elected college to choose the president. The president would be secure, and could only be removed in a fair trial after impeachment and then only by a special majority of the Senate.

The American constitution is sound because in removing the Crown, they substituted the people. But this required a completely new and carefully considered document. The current Australian republican process has failed to achieve this. The Republic Advisory Committee of 1993, appointed by Prime Minister Keating, and chaired by Australian Republican Movement Chairman Malcolm Turnbull consisted only of republicans. Under its terms of reference it was obliged to recommend the removal of the Crown. It was unable, even if it had wanted to, to find that the present system was superior.

The model it proposed involved an appointed president who would be extremely difficult to remove. Mr Turnbull reported that there was an almost universal view the president should not hold office at the whim of the prime minister. Arguments that this replicated the French Fifth Republic, which allows for the potentially unstable ‘co-habitation’ of a powerful President and a parliamentary prime minister, were dismissed. But in the last days of the 1998 Constitutional Convention a new model was produced, the principal feature of which was that the president would hold office at the whim of the prime minister. This had not been mentioned in the election campaign, was contrary to the express advice Mr Turnbull had previously given, and has no precedent in any democratic republic. It was clearly designed with the principal purpose of securing majority support at the Convention. In this it failed, although it was the preferred model among republican delegates.

This constitutional model fails the test of a good constitution.

What then is a good constitution? Above all one that stops a rogue from holding on to power which he should relinquish, or taking power which he should not have. Our political inheritance is one which is rightly cynical about power, and which knows that any political system will from time to time throw up a rogue or even a band of rogues. Clearly while a constitution should hinder or ideally prevent this, it would be the height of irresponsibility for a constitution to oil the path of a rogue – precisely the weakness of the proposed constitutional model on which the Australia people will vote on 6 November 1999.

It is not difficult to point to constitutional models which have failed. It is a melancholy truth that most have, and only a handful have succeeded over time. And Australia under its present constitutional system is one of the world’s seven oldest democracies. Of these five are constitutional monarchies. Elizabeth II is sovereign over four. Of the leading ten countries in the UN Human Development Index, eight are constitutional monarchies. There are good reasons for this correlation.

Before we trace the evolution of the Australian Crown, a comparison with a country which failed to establish and maintain a sound constitutional system will not be out of place.

In the year we federated, Australia and Argentina were among the two richest counties in the world, on a per capita basis. Since 1901, we have remained free. We have lived under democractic and stable government. We have contributed to the freedom of all peoples, fighting valiantly in two world wars and in Korea, Malaysia and Vietnam. We remain a rich country, nudged out of our premier position more by our war losses and by unfair trading practices than anything else. And Argentina? Since 1930 dictatorships have alternated with democratic governments. Shortly after our 1975 constitutional crisis – which resulted in no loss of life and an election – an Argentine military junta waged a so called ‘dirty war’ against their own people. This resulted in up to 15,000 so called ‘disappeared’ – a euphemism for being tortured then murdered. Apart from such incursions into politics, and the disastrous invasion of the Falklands, the Argentinian military saw no action in the two world wars. Some short sighted people may dismiss as irrelevant and outdated the allegiance of the Australian Army, the Royal Australian Navy, and the Royal Australian Air Force to the Crown, and the vesting of the Command in Chief in the Australian Crown. They are wrong. These are a sure safeguard against politicisation.

And the Argentinian economy? She is no longer the equal of Australia. Her GDP per capita is well less than half of Australia’s. Ten years ago her inflation rate rose to 1500%. Argentina is now a third world country. She is a recipient of aid, and not a donor.

According to Mainwaring and Shugart, the British colonial heritage typically produced trained civil servants loyal to an impartial Crown; the practices and institutions of the Westminster system, and the lack of control of local landed elites over the colonial state. All of these were absent in Argentina’s sad history. Certainly after independence in 1816. But also before. Why did not Spain give the benefits that the British Crown brought to her colonies? The answer is simple. Because Spain – with most of the other continental powers – did not allow these freedoms and benefits at home.

The Australian Crown has evolved significantly since Governor Philip came to those shores. Such are the advantages of our system, that without the need for radical, sudden and disruptive changes, it can adapt and grow. In a relatively short time the penal colony of New South Wales was transformed into a civil colony . Under the New South Wales Act, 4 George IV ch. 96, an advisory legislative council was established.

It was in this period that economic development was led by the Crown. Australia had been settled as a Crown enterprise. This is in sharp distinction from the American experience. The American colonies were founded by the settlers themselves and they led economic development, while the Crown provided the legal framework and protection from external threat.

In Australia laws are now made for the ‘peace order and good government’ of the Commonwealth. A similar formula applies in Canada. The American Declaration of Independence exalts as its mission ‘life liberty and the pursuit of happiness.’ This is not a mere semantic distinction. These formulae demonstrate vastly different attitudes to the role of government. In Australia and Canada, government through the Crown is more concerned with welfare, while traditionally playing a leading role in development. In the United States government traditionally stands back and has a narrower role.

Studies by Patricia Springborg, cited by Professor Graham Maddox, demonstrate that the modern states with the strongest commitment to communal welfare are those which retained their monarchies into the twentieth century. When the government of the Australian colonies was in the hands of the colonial governors, they adopted what were then most enlightened policies in relation to the Aboriginal people, the management of the land and the treatment of former convicts. The works of such historians as Alan Atkinson and Professor Henry Reynolds demonstrate this.

This concern for the welfare of all people has been a constant feature of Australian and Canadian government, whereas that of the United States prefers to leave people to their own devices. It is no coincidence that that first stirrings of government-led Australian republicanism in 1993 coincided with the adoption of new theories on the role of government in the economy.

That first period of government by the colonial governors, with local parliaments, ended for most of Australia in the middle of the last century. Learning from the loss of the American colonies, the British not only gave parliaments to their settled colonies. Replicating what had occurred at home they allowed the colonies to have their own governments responsible to those local parliaments. Henceforth the Crown in the right of the colony would normally act on the advice of colonial not British ministers. This represented an unprecedented devolution of power. But the colonies were still under an imperial tutelage. Henceforth the governors would, when appropriate, apply imperial policy. This was not often. But one aspect of imperial policy led to an outburst – the first significant one – of Australian republicanism. The Bulletin, then the leading republican newspaper, thundered in 1888 that Australia had to choose between ‘independence and infection, between the Australian republic and the Chinese leper’. This was nothing less than a call for ethnic cleansing. The White Australian Policy ran counter to imperial policies on race. Within living memory, but certainly not under the current proprietors, the Bulletin’s masthead still read ‘Australia for the white man’! Apart from applying imperial policy, the colonial governors’ more significant role in this period was as Professor Lane observes, to be local constitutional monarchs. As their successors today still are. What does this mean? Apart from a significant ceremonial role, it certainly means being a constitutional umpire in times of crisis.

This may involve the exercise of certain powers – the ‘reserve powers’ – without ministerial advice. This relates particularly to appointing and dismissing governments, and in deciding when to call elections. When governors exercise these powers, they do so on behalf of the people. This is to maintain the integrity of the constitutional framework. And as imperial tutelage disappeared in the early twentieth century, this role of the local constitutional monarch remained. Although the best known use of these reserve powers in this century was in 1975, there have been at least twelve other occasions relating to their exercise. An average of one every eight years.

Let us look at the three leading examples of the exercise of these powers. The first concerned the New South Wales Premier Jack Lang. In 1932, having failed to pay interest due to overseas lenders, the Federal government paid them. Then by federal legislation it required New South Wales taxpayers to pay the federal government until the debt was repaid. The Lang government directed public servants to circumvent the law. The Governor, Sir Philip Game, asked for proof that the direction was not illegal, or that it be withdrawn. After failing to obtain either, or their resignation, he dismissed the government. The Opposition Leader was appointed Premier and an election followed which Mr Lang lost.

The second occasion related to the Country Party McDonald government in Victoria in 1952. It ruled with Labor support, but was refused supply by the Legislative Council. Premier John McDonald recommended an election. As supply would have run out before the election, the Governor Sir Dallas Brooks refused. McDonald resigned and Liberal leader T T Holloway formed a government and obtained supply. The Legislative Assembly then passed a vote of no confidence in the government, and Holloway recommended an election. The Governor refused Holloway’s request, and commissioned McDonald again. He then recommended an election, which the Governor granted. Both leaders had wanted an election; as McDonald always had the confidence of the Assembly, it was proper that he should got to the election as the incumbent Premier.

The third occasion was in 1975. At the instigation of Leader of the Opposition, Malcolm Fraser, the Senate had denied supply until the Whitlam government agreed to an election. The government refused, planning to borrow funds and to rule without supply. At their meeting on 11 November Sir John asked whether Mr Whitlam still intended to rule without supply. When he replied in the affirmative, Sir John said that he would therefore withdraw his commission, which he did. Mr Fraser was commissioned as caretaker Prime Minister provided he guaranteed supply and recommended a double dissolution. Supply was granted, and an election was held on 3 December. This was undoubtedly the country’s most serious constitutional crisis. Whatever one’s views of the propriety of Mr Fraser’s actions, it is against sound constitutional principles, and the express provisions of the Constitution (sections 81 and 87), for a government to spend money not authorised by a grant of supply. That this crisis was resolved in a matter of a few weeks by putting the decision to the people, and without bloodshed, is testimony to the strength of the present Constitution and the importance of the Crown in providing an impartial constitutional umpire above politics.

So much for the reserve powers of the Crown. It would however be a mistake to think that the substantive role of the Governors-General and Governors arise only during a constitutional crisis. As we know, they normally act on the advice of the ministers of the Crown. But they are not mere rubber stamps. (Although the new constitution would make the president nothing more than this.) A Governor or Governor-General also exercises the role of constitutional auditor. He does this exercising one or more of the three constitutional rights of the Crown identified by Walter Bagehot – the right to be consulted, the right to encourage and the right to warn.

As constitutional auditor, he will require that the advice he receives proposes some action which is lawful, and that due process has been observed. The Governor first needs to know what precisely he is being asked to do. He would need to be satisfied that he has the power to do this. The identification of the source of power leads to the next matter. That is, are there any conditions prescribed on the exercise of the power? If the answer is yes, as it usually is today, the governor needs to be satisfied that those conditions have been fulfilled.

This almost daily chore of acting as auditor usually escapes the public gaze. Those in ministerial offices and the public service are well aware of this role. Yet surprisingly few commentators write of it, or even know of it. It does surface from time to time. Sometimes when the politicians are irritated by a Governor merely because he insists on due process. Or when the public becomes involved.

Consider just one example one of the few that have gained public exposure.

In March 1999 in New South Wales the Governor of New South Wales, Gordon Samuels, asked for a detailed briefing from the Department of Gaming before authorising eighteen Governor’s liquor licences over Crown Land at the Fox Studios Moore Park film studio and entertainment complex which replaced Sydney’s old Show Ground. The Centennial Park Residents’ Association, which had been opposed to the Governor requesting his personal intervention. According to the Governor’s official secretary, the Governor wished to be satisfied that the residents’ concerns had been considered and proper processes followed. And this event was certainly not unusual.

Let us return to the evolution of the Australian Crown. After responsible government the next development was the people’s decision, ratified at Westminster, to unite in 1901 in an indissoluble Federal Commonwealth under the Crown. They did that after a long, transparent process in which they were involved and whose conclusion they specifically endorsed. The Founders thought very carefully about the role of the Crown. They debated, and rejected, a proposal to elect the Governor-General. They saw this as having the potential to create a rival political position to the prime ministership. As for a republic they had before them a living model of a Westminster system with a president. This was the French Third Republic established in 1871. The President was chosen by Parliament – and usually by at least a two-thirds majority. He was expected to reign but not to rule. By 1901, all six presidents had to a greater or lesser degree behaved like politicians. Four were forced to resign. There was even a threat of a military coup d’Etat. Our Founders, wisely, wanted nothing at all to do with a Westminster republic. And they were right. Our constitutional system has ensured that we have impartial non-political constitutional umpires and auditors. The system works not only well, it works superbly!

So the Governor-General became a federal constitutional monarch. Yet he still had a secondary role as representative of the Imperial government, and the single Imperial Crown. That too was to change. By 1917 it was already accepted that Dominions such as Australia were independent. So our representatives attended the Peace Conference at the end of the First World War. We signed the Treaty of Versailles, we became members of the League of Nations. In the Balfour Declaration of 1926 it was recorded that Great Britain and the Dominions were ‘autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs. Though united by a common allegiance to the Crown, and freely associated, as members of the British Commonwealth of Nations’.

As a consequence, the role of the Governor-General as a channel of communication between the Imperial and dominion governments came to an end. High Commissioners would henceforth do that. Then in 1930 it was decided that it was the Dominion ministers, and not the British ministers, who would advise the Sovereign on the appointment of the Governor-General. In 1931, the dominions’ independence was given additional weight by the Statute of Westminster, adopted in Australia in 1942. The single indivisible Imperial Crown had become, among others, the Australian Crown, the British Crown, the Canadian Crown, and the New Zealand Crown. Separate offices with one incumbent in what international lawyers call a ‘personal union’. In 1953 the Australian parliament first used the separate title (the separate office already existed) of Queen of Australia. In 1973 the Parliament affirmed this, and also granted a power to the Queen, when in Australia, to act as a delegate of the Governor-General, something she could not otherwise do. It should be stressed that, as the Constitutional Commission of 1988 recognised, the Governor-General is not a delegate of the Queen. When he exercises powers vested in him under the Constitution, the Queen cannot review them. A point which was confirmed by the Palace in 1975. The Queen clearly had, and stated she had, no power to review or change Sir John Kerr’s decisions.

Certain legal links still remained with London. Because the states wanted it, advice on the appointment of governors went through the British ministers. For their own reasons they trusted London far more than they did Canberra! All this ended when the Australia Acts were passed in both London and Canberra in 1986. Under this the Crown is entrenched at the state level, and Premiers have direct access to the Queen on matters relating to the Crown, thus asserting their freedom from federal government supervision.

The constitutional system we enjoy has given us an extraordinary degree of stable, democratic government. The advantages of the Australian Crown are many.

First, it is testimony to our full independence. As Minister of the Crown, Kim Beazley (Senior) said in 1973 when the Royal Titles Act was amended to delete reference to the United Kingdom, it is ‘an assertion of the separateness of the Crown of Australia, the distinctiveness of the Crown of Australia and the concept of the Crown acting on the advice of the Australian government’. This is an appropriate assertion of Australia’s nationhood at this time.’ (Hansard, House of Representatives, 13 August 1973, p.358)

Second, the Governors-General and Governors act as impartial non-political constitutional umpires.

Third, they also act as the impartial auditors of constitutional and legal due process.

Fourth, they are sufficiently secure to act without fear or favour.

Fifth, they are not so secure that they can ignore not only the written constitution and laws, but the unwritten constitutional conventions or customs which govern the exercise of their powers.

(While they can be removed by the Queen on the advice of the Prime Minister or Premier, this can only be done on an original document after informal consultation, with the Queen able to seek further information before acting. This delay ensures that action can still be taken against a government leader who is abusing his office.)

Sixth, the system of appointment on the advice of the Prime Minister or Premier encourages the choice of an impartial respected person, and denies other politicians any opportunity to wheel and deal, and seek trade-offs before they approve.

Seventh, the direct access the Premiers have to the Queen, and the entrenchment of the Crown at State level affirms the States as distinct entities free from federal supervision.

Eighth, that the appointment is made by the sovereign, as trustee of the people, and that oaths and allegiance of the ministers of the Crown, judges, members of parliament, public servants and the armed forces are not to a politician, further protects the constitutional system from abuse and partisanship. (In addition, the Governor-General is the non-political Commander in Chief of the armed forces.)

Ninth, the character, impeccable behaviour, and the long experience of the Sovereign set an example of behaviour for the Australian Governors-General and Governors.

Tenth, that we share the same Sovereign, yet have our own head of state for diplomatic purposes, brings us closer to friendly countries.

One thing is clear. The onus is clearly on those who seek what Mr Tom Keneally admits is the biggest structural change since Federation, to show that what is being proposed is at least as good as what we have. And as Professor Geoffrey Blainey says ‘in this they have failed, miserably’.

Atkinson, A, The Muddle Headed Republic, Oxford University Press, 1993

Forsey, E., ‘Crown and Cabinet’, in Collected Essays Freedom and Order, McCelland and Stewart Ltd, 1974 (The Carleton Library, No.73)

Hamilton, A., Madison J. and Jacy, J., The Federation Papers, 1787, New American Library, New York, 1961, No.68, Hamilton, 413)

Johnson, P., A History of the American People, Weidenfield and Nicolson, London, 1997

Lane, P.H., An Introduction to the Australian Constitutions, 6th ed, Law Book Co. Sydney, 1994

Maddox G., Australian Democracy in Theory and Practice, 3rd edn Longman, Melbourne 1996


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